Bauer v. Veith, 43

• Decision Date: 02 November 1964
• Docket Number: No. 43,43
• Citation: 374 Mich. 1,130 N.W.2d 897
• Parties: Robert J. BAUER, Guardian of the Estate of Wanita Gulliver, Alleged Mentally Incompetent, Plaintiff and Appellant, v. Noel VEITH and Anne Veith, d/b/a Louie's Cafe, Jointly and Severally, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 897

130 N.W.2d 897

374 Mich. 1

Robert J. BAUER, Guardian of the Estate of Wanita Gulliver Alleged Mentally Incompetent, Plaintiff and Appellant, v. Noel VEITH and Anne Veith, d/b/a Louie's Cafe, Jointly and Severally, Defendants and Appellees.

No. 43.

Supreme Court of Michigan.

Nov. 2, 1964.

James Thomas Sloan, Jr., Kalamazoo, Jerry J. O'Connor, Cassopolis, for plaintiff and appellant.

Seymour & Seymour by Dalton G. Seymour, Benton Harbor, for defendants and appellees.

Before the Entire Bench.

BLACK, Justice.

The precise question, presented in this civil case, arose in the corresponding civil case of McGowan v. Los Angeles, 100 Cal.App.2d 386, 223 P.2d 862, 21 A.L.R.2d 1206*, which last case was quoted and adopted by Chief Justice Kavanagh in the recently decided criminal case of People v. Lyall, 372 Mich. 607, 615, 622, 127 N.W.2d 345. In McGowan, following an intersectional collision of motor vehicles, it was claimed that Cox, one of the drivers (Cox was instantly killed), was driving while under the influence of intoxicating liquor. A toxicologist, employed in the coroner's office, testified that a paper entitled 'Blood alcohol determination' was made, and the blood referred to therein was received and analyzed, by his department, in the regular course of business. He was unable to say, however, and no witness testified, that the paper thus entitled portrayed the result of a test of blood drawn from the body of Cox. Certain 'business entry' statutes of California, under which admissibility of the 'determination' was urged by the appellants, appear in the body of the opinion of the District Court of Appeal. After having ruled:

'Patently the court had discretion to determine whether the paper was relevant and whether 'the sources of information, method and time of preparation were such as to justify' the admission of the coroner's record.';

and having then cited copious authority in support of such rule of discretion, the District Court held:

'In the absence of proof that the blood analyzed was the blood of Cox, taken from his body prior to the injection of any fluid therein, oral testimony of the result of the analysis would not be admissible.'

The annotator of McGowan sums up, and we adopt for civil cases as at bar, the consensus of reasoned authority (p. 1220):

'Where it 'appears that the various steps in the keeping and transportation' of the specimen, part, or object from the time it was taken from the body until the time of analysis 'were not traced or shown by the evidence' the identification of the thing analyzed is insufficient and the presumptions that official duty is properly performed and that public records are correct will not supply missing links in the chain.'

This suit for damages arose out of an automotive collision, caused according to plaintiff by unlawful sales of intoxicating liquor, by the defendant tavern licensees to one William Hanover, with result that Hanover went forth in an intoxicated condition and drove his automobile in a manner actionable in plaintiff's favor as against such licensees. Trial to court and jury resulted in a verdict and judgment for defendants.

Plaintiff, appealing, presents but one question of reviewable moment. He states it as follows:

'Did the court err in refusing to admit plaintiff and appellant's proposed exhibit 12, Mercy Hospital records of the blood alcohol test of William Hanover, and excluding the testimony of Dr. William H. Benner?'

The question is concluded by the foregoing rule of evidence, the desideratum of which is that such a test and its results are inadmissible in the absence of proof that the blood specimen analyzed was actually taken from the person in scrutiny or the body of that person.

According to the record of Dr. Benner's testimony, such testimony having been taken separately in the absence of the jury, plaintiff's exhibit 12 purports to have been endorsed by Hanover and prepared in accordance with the requirements of C.L.S.1961, § 257.625a (copied into People v. Lyall, 372 Mich. at pages 623, 624, 127 N.W.2d 345). As in Lyall, however, the offeror of the exhibit failed to present the laboratory technician as a witness, by deposition or otherwise. Such technician, according to Dr. Benner, took the necessary...