Bauer v. Veith, No. 43

CourtSupreme Court of Michigan
Writing for the CourtBLACK
Citation374 Mich. 1,130 N.W.2d 897
Decision Date02 November 1964
Docket NumberNo. 43
PartiesRobert 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.

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.

[374 Mich. 2]

Page 898

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

Page 899

from the body of Cox. Certain 'business entry' statutes of [374 Mich. 3] 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...

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16 practice notes
  • Irwin v. Town of Ware
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 15, 1984
    ...proper foundation in establishing a chain of custody. See, e.g., Nesci v. Angelo, 249 Mass. 508, 510, 144 N.E. 287 (1924); Bauer v. Veith, 374 Mich. 1, 4, 130 N.W.2d 897 (1964)("[A blood] test and its results are inadmissible in the absence of proof that the blood specimen analyzed was actu......
  • Thomas v. State
    • United States
    • Alabama Court of Criminal Appeals
    • December 30, 1999
    ...(`The Government's burden ... cannot be diluted by unwarranted presumptions about the evidence it seeks to introduce.'); Bauer v. Veith, 374 Mich. 1, 3, 130 N.W.2d 897, 899 (1964) (presumption cannot be used to `supply missing links in the 1 Imwinkelried, supra, at § 506, pp. 149-50 (some f......
  • Zyskowski v. Habelmann, Docket No. 77598
    • United States
    • Court of Appeal of Michigan (US)
    • April 7, 1986
    ...person or organization on a particular occasion was in conformity with the habit or routine practice." Plaintiff relies on Bauer v. Veith, 374 Mich. 1, 3, 130 N.W.2d 897 (1964), in support of his position that first-hand observation of the sample is required. The Supreme Court "The annotato......
  • Mason v. Lovins, Docket No. 7068
    • United States
    • Court of Appeal of Michigan (US)
    • May 27, 1970
    ...of invariably taking such a specimen. There are many tasks that are performed routinely, and while, as held in Bauer v. Veith (1964), 374 Mich. 1, 3, 130 N.W.2d 897, it may not be presumed that because an official is obliged to take a specimen that he in fact did so, 8 where, as here, the w......
  • Request a trial to view additional results
16 cases
  • Irwin v. Town of Ware
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 15, 1984
    ...proper foundation in establishing a chain of custody. See, e.g., Nesci v. Angelo, 249 Mass. 508, 510, 144 N.E. 287 (1924); Bauer v. Veith, 374 Mich. 1, 4, 130 N.W.2d 897 (1964)("[A blood] test and its results are inadmissible in the absence of proof that the blood specimen analyzed was actu......
  • Thomas v. State
    • United States
    • Alabama Court of Criminal Appeals
    • December 30, 1999
    ...(`The Government's burden ... cannot be diluted by unwarranted presumptions about the evidence it seeks to introduce.'); Bauer v. Veith, 374 Mich. 1, 3, 130 N.W.2d 897, 899 (1964) (presumption cannot be used to `supply missing links in the 1 Imwinkelried, supra, at § 506, pp. 149-50 (some f......
  • Zyskowski v. Habelmann, Docket No. 77598
    • United States
    • Court of Appeal of Michigan (US)
    • April 7, 1986
    ...person or organization on a particular occasion was in conformity with the habit or routine practice." Plaintiff relies on Bauer v. Veith, 374 Mich. 1, 3, 130 N.W.2d 897 (1964), in support of his position that first-hand observation of the sample is required. The Supreme Court "The annotato......
  • Mason v. Lovins, Docket No. 7068
    • United States
    • Court of Appeal of Michigan (US)
    • May 27, 1970
    ...of invariably taking such a specimen. There are many tasks that are performed routinely, and while, as held in Bauer v. Veith (1964), 374 Mich. 1, 3, 130 N.W.2d 897, it may not be presumed that because an official is obliged to take a specimen that he in fact did so, 8 where, as here, the w......
  • Request a trial to view additional results

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