Ballou v. Henri Studios, Inc.

• Decision Date: 25 September 1981
• Docket Number: No. 80-1503,80-1503
• Citation: 656 F.2d 1147
• Parties: 9 Fed. R. Evid. Serv. 71 Yolanda and Terrence BALLOU, etc., et al., Plaintiffs-Appellees, Lula Mae LeBlanc, etc., Plaintiff-Appellee Cross-Appellant, v. HENRI STUDIOS, INC., et al., Defendants-Appellants Cross-Appellees. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1147

656 F.2d 1147

9 Fed. R. Evid. Serv. 71

Yolanda and Terrence BALLOU, etc., et al., Plaintiffs-Appellees, Lula Mae LeBlanc, etc., Plaintiff-Appellee Cross-Appellant, v. HENRI STUDIOS, INC., et al., Defendants-Appellants Cross-Appellees.

No. 80-1503.

United States Court of Appeals, Fifth Circuit.

Unit A

Sept. 25, 1981.

David J. Kreager, Orgain, Bell & Tucker, Beaumont, Tex., for defendants-appellants cross-appellees.

Ernest Browne, Jr., Beaumont, Tex., for Ballou.

Wendall C. Radford, Beaumont, Tex., for LeBlanc.

Hugh O'Fiel, Beaumont, Tex., for plaintiffs-appellees.

Appeals from the United States District Court for the Eastern District of Texas.

Before INGRAHAM, POLITZ and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

On the afternoon of June 14, 1977, an automobile traveling at approximately fifty miles per hour struck the rear of an eighteen-wheel tractor-trailer which was parked entirely on the right hand shoulder of a curved, divided highway in Beaumont, Texas. The driver of the car, Jesse Ballou, was killed instantly; Ballou's sole passenger, twelve-year-old Leonard Herman Clay, was rendered unconscious upon impact and died two days later. The plaintiffs Yolanda Ballou and Terrence Ballou, the children of Jesse Ballou, and Lula Mae LeBlanc, the mother of Leonard Herman Clay filed this diversity suit in Texas federal district court against Appellant Henri Studios, Inc., alleging that the deaths of Jesse Ballou and Leonard Herman Clay were proximately caused by the negligence of Henri Studios' employee, John Woelfel, the driver of the truck. Henri Studios, inter alia, denied that Woelfel's conduct was negligent and asserted that the collision was caused by the negligence of the deceased driver of the car, Jesse Ballou.

Prior to trial, the plaintiffs filed a motion in limine seeking to prevent the introduction at trial of any evidence that Jesse Ballou was intoxicated at the time of the collision. Specifically, the motion in limine sought to exclude the results of a blood alcohol test performed by the Beaumont Regional Crime Laboratory upon a blood sample allegedly taken from the body of Ballou which reflected that his blood contained 0.24% alcohol by weight at the time of his death. On the day the trial of the case began, the district court held a hearing outside the presence of the jury on the issue whether the results of the blood alcohol test should be excluded from evidence at trial. After hearing argument and testimony, the district court sustained the motion in limine and ruled the results of the blood test inadmissible.

At trial, John Woelfel testified that on the morning of the collision, June 14, 1977, he had made a delivery of concrete statuaries to a garden center in Orange, Texas for his employer, Henri Studios. After delivering the statuaries, he set out to Port Arthur, Texas, by way of Interstate 10 West to complete his deliveries. Woelfel took the Port Arthur exit (Highway 69) off Interstate 10 with the intention of continuing on Highway 69 to Port Arthur, but immediately after exiting he experienced accelerator linkage problems which caused a loss of power to his truck. Woelfel drove approximately one-half mile and pulled his truck entirely onto the shoulder of the roadway under an overpass. Woelfel testified that he placed three warning reflectors on the shoulder of the highway behind his vehicle at approximately ten feet, eighty feet and one hundred and eighty feet. Other trial testimony, however, indicated that the third reflector had been placed at either approximately eighty-nine feet or approximately one hundred and three and one-half feet behind the trailer.

While he was waiting for help to arrive and attempting to repair the truck, Woelfel noticed the car driven by Ballou approximately one-quarter of a mile behind his truck driving almost entirely on the shoulder of the highway. Woelfel testified that he watched Ballou's car as it approached his truck and that Ballou did not slow down, change direction, skid or return from the shoulder to the main portion of the highway. Several seconds prior to impact, Woelfel jumped between the tractor and trailer in order to protect himself from injury.

The district court instructed the jury with respect to the Texas law concerning a truck driver's duty to display warning reflectors behind his disabled truck and the distances at which the reflectors are required to be placed. The court also instructed the jury that under Texas law they could award damages to Yolanda and Terrence Ballou only if they found that Jesse Ballou was not more than 50% contributorily negligent. See Tex.Rev.Civ.Stat.Ann. art. 2212a (Vernon Supp. 1980) (barring recovery if injured person is more than 50% contributorily negligent). The jury was further instructed that Ballou's negligence could not be imputed to Leonard Herman Clay.

The jury returned a general verdict for the plaintiffs, but found that Henri Studios was 40% negligent and that Jesse Ballou was 60% contributorily negligent. Finding a conflict between the general verdict for the plaintiffs and the jury's finding that Ballou was 60% contributorily negligent, the district court gave the jury additional instructions and resubmitted the case for further deliberation. The jury subsequently returned a verdict for the plaintiffs, awarding damages of $100,000 for Yolanda Ballou, $150,000 for Terrence Ballou and $15,000 for Lula Mae LeBlanc individually. The verdict found Henri Studios 55% negligent and Jesse Ballou 45% contributorily negligent. The jury awarded no damages to Lula Mae LeBlanc as administratrix of Leonard Herman Clay's estate for Clay's pain and suffering. Since Jesse Ballou's negligence was not attributable to his passenger, the jury's award of $15,000 to LeBlanc was not subject to reduction and judgment was entered based on the jury's verdict. The district court entered judgment for Yolanda and Terrence Ballou after reducing the amount awarded by the jury by 45% based on the jury's finding of the percentage of Ballou's contributory negligence. ¹

Henri Studios raises several issues on appeal, including the trial court's alleged reversible error in excluding the results of the blood alcohol test, refusing to accept the original verdict of the jury, resubmitting the case to the jury in a manner that had the effect of coercing a verdict for the plaintiffs, and giving erroneous instructions on the Texas law concerning the placement of warning reflectors. Henri Studios does not appeal the judgment in favor of Lula Mae LeBlanc individually for the death of Leonard Herman Clay. However, LeBlanc as administratrix of the estate of Leonard Herman Clay cross-appeals, contending the jury's finding of no damages for Clay's pain and suffering is inconsistent with allegedly undisputed testimony that Clay experienced conscious pain. Concluding that the district court erred in excluding the results of the blood alcohol test, we reverse the judgment in favor of Yolanda and Terrence Ballou and remand for a new trial. We affirm, however, the judgment awarding no damages for Clay's pain and suffering.

The Blood Alcohol Test

1. The Hearing on the Motion in Limine

A proper evaluation of Henri Studios' claim that the district court erred in excluding the results of the blood alcohol test requires a narration of the facts presented and arguments made at the hearing on the motion in limine as well as a statement of the district court's reasons for excluding the test from evidence. As noted above, prior to trial the plaintiffs filed a motion in limine seeking to exclude at trial any evidence indicating that Jesse Ballou was intoxicated at the time of the collision, and specifically to exclude the results of a blood alcohol test performed upon a sample of blood allegedly taken from Ballou's body. On the first day of the trial, the district court held a hearing on the motion in limine outside the presence of the jury.

At the hearing, the plaintiffs presented two basic arguments for exclusion of the results of the blood test. First, they contended that the results of the blood test were inadmissible because the defense had failed to establish an adequate "chain of custody" for Ballou's body and the blood sample, and had failed to show that adequate precautions had been taken to prevent the possibility of contamination of the blood sample. ² Second, the plaintiffs sought to refute the results of the blood test through proof that Ballou was not intoxicated at the time of the collision.

To support their claim that Ballou was not intoxicated, the plaintiffs first argued that the blood test was the only evidence of Ballou's intoxication at the time of the collision, noting that none of the persons who had come into contact with Ballou's body had noticed the presence of alcohol about his body. The plaintiffs then called to the stand Mrs. Eula Eisenhower, a registered nurse employed by Dr. Washburn, a Beaumont doctor whose office was located only a short distance from the site of the collision. Mrs. Eisenhower testified that on the afternoon of June 14, 1977, Jesse Ballou came to Dr. Washburn's office, accompanied by Leonard Herman Clay, to have some stitches removed from his hand. She testified that in removing the stitches she was eighteen inches from Ballou's face, and that Ballou did not have alcohol on his breath and did not act intoxicated, and that she was positive that he was not intoxicated. She also stated that due to experience with alcoholism in her family, she was familiar with the smell of alcohol. According to Mrs. Eisenhower, Ballou left Dr. Washburn's office at 2:30 p. m. The police report of the collision listed the time of the arrival of the officers at the scene of the wreck at 2:40 p. m.; by that time, Ballou's body had already been taken to the hospital. Finally, the plaintiffs introduced a portion of the deposition of Jim Middleton, the chemist who performed the blood...