Brooks v. Engel

• Citation: 207 N.W.2d 110
• Decision Date: 25 April 1973
• Docket Number: No. 55350,55350
• Parties: Hazel I. BROOKS, on her own behalf and as Next Friend for Michael Keith Brooks, et al., Appellant, v. Raymond C. ENGEL, d/b/a Cold Wave Tavern, Appellee.
• Court: United States State Supreme Court of Iowa

Page 110

207 N.W.2d 110

Hazel I. BROOKS, on her own behalf and as Next Friend for Michael Keith Brooks, et al., Appellant, v. Raymond C. ENGEL, d/b/a Cold Wave Tavern, Appellee.

No. 55350.

Supreme Court of Iowa.

April 25, 1973.

Newport, Newport & Wine, Davenport, for appellant.

McDonald & McDonald, Davenport, for appellee.

Considered en banc.

REYNOLDSON, Justice.

After a whiskey and beer drinking bout which extended the full night of July 29-July 30, 1966, and into the following day, Roland Brooks was drowned while fishing from a small boat in the Mississippi River at about 2:00 p.m. on July 30th. His wife, plaintiff here, in her own behalf and as next friend for their four minor children (ages 9 through 14) filed this dram shop action against defendant Raymond C. Engel. Engel operated the Cold Wave Tavern where Brooks spent much of his drinking time the night before and returned to consume his last beer about two hours before his death.

At approximately 11:30 a.m. on the morning of the drowning Brooks and Orville Martinson by prearrangement met their employer, Jack Jessee, at the Cold Wave Tavern, to go fishing in Mr. Jessee's boat. Orville Martinson had been Brooks' all-night drinking companion and had returned with Brooks to the latter's home at about 8:30 a.m. for further beer drinking. Mr. Jessee testified all three men had a small beer in the tavern and went to the river. About two in the afternoon Martinson stood up in the boat to relieve himself and fell overboard. Brooks removed his shoes and dove in after him. Both men drowned on the Illinois side of the river.

At trial Jessee testified in his opinion neither Martinson nor Brooks were intoxicated when he took them out in his boat, and that no intoxicants were consumed in the boat before the drownings. He was the sole witness to the tragedy.

Brooks' body was recovered from the river in the early morning hours of July 31. James L. Shaw, Rock Island County (Illinois) coroner, had the body taken to Knox Larson Funeral Home, Rock Island, Illinois. Plaintiff testified when she arrived at the funeral home that morning she authorized an autopsy and assumed there would be a blood test. Coroner Shaw testified he ordered a blood specimen taken by the mortician, Lewis R. Jenks, and described his delivery of the specimen to a pathologist's laboratory for testing. The test produced a result of 260 milligrams of alcohol per one hundred c.c. of blood, shown in the record to indicate a definite state of intoxication.

This blood test, plaintiff asserts, furnishes the only direct evidence her decedent was intoxicated when he drowned and is crucial to her case. Admissibility of the test is, of course, the storm center of this appeal.

I. Because of the unique manner this case was tried below, it presents unusual problems here. Plaintiff grounded her action on both sections 129.2 and 123.95 of the 1966 Code of Iowa. Before commencement of the first aborted jury trial, district court dismissed all of that portion of the petition relating to § 129.2, The Code, 1966, for the reason that section had no extraterritorial jurisdiction and effect. Because plaintiff's petition failed to state the injury to have occurred in the state of Iowa, trial court reasoned the petition stated no cause of action. This ruling is raised as error by plaintiff, who argues even though the drowning occurred on the east side of the Mississippi, both states had concurrent jurisdiction of the river area by reason of § 1.3, The Code, 1966. Defendant concedes trial court's error in this holding. Upon oral submission plaintiff's counsel conceded this would not be prejudicial in the event trial court was correct in rejecting the blood test and finding there was not sufficient evidence of Brooks' intoxication at time of his death.

II. Apparently plaintiff did not learn of the Illinois blood test until shortly before the first trial commenced. Some testimony was introduced concerning this test before trial court concluded the evidence should not have been admitted and declared a mistrial before plaintiff had rested.

The matter again came to trial on March 1, 1971. Defendant filed a motion in limine which was obviously treated by the trial judge as a motion to suppress all blood test evidence. Plaintiff raises no issue on use of the limine motion for such broad purpose. But see Lewis v. Buena Vista Mutual Insurance Association, 183 N.W.2d 198 (Iowa 1971). Although there is no showing in this record there was any evidence then before the court to support its action, the motion was sustained. The parties then stipulated the jury should be dismissed and the matter submitted to the court for decision. It was further stipulated the case would be decided upon the transcript of evidence at the first trial and offers of proof by plaintiff relating to the blood test, which should be considered by the court as having been offered prior to his ruling on the limine motion and as evidence in the trial itself but for the pre-trial inadmissibility ruling.

Two questions (other than the conceded error above referred to) thus remain: 1) Was the foundational showing sufficient under the Iowa law to permit the blood test result to be admitted into evidence for consideration by the fact-finder? 2) If foundationally inadequate under the Iowa law but adequate under the Illinois law, should the test result have been admitted in the Iowa trial? We treat these issues in reverse order.

III. Defendant only perfunctorily resists plaintiff's claim the result of the blood alcohol test would have been admissible in Illinois litigation. However, plaintiff has difficulty in sustaining her position this evidence, for that reason alone, should be admitted by an Iowa court.

We have said where the incident giving rise to a cause of action occurs in a foreign state, the rights and liabilities of the parties must be determined by the foreign state's laws in whatever court the action is brought, but that procedural matters and matters pertaining to the remedy to be applied must be determined by the law of the forum. Kingery v. Donnell, 222 Iowa 241, 268 N.W. 617 (1936); Dorr Cattle Co. v. Des Moines Nat. Bank, 127 Iowa 153, 98 N.W. 918 (1904).

Even granting the present state of uncertainty and flux in the conflict of laws arena, we cannot follow plaintiff's logic. She grounds her cause of action on two Iowa statutes, yet argues Illinois law should apply to a portion of the proof of her decedent's intoxication. With few exceptions unnecessary to consider here, the local law of the forum determines the admissibility of evidence. Restatement (Second) of Conflict of Laws § 138, p. 384. We hold Iowa law applies. There is no merit in this assignment of error.

IV. It is equally as difficult for us to accept defendant's dogmatic rationale this evidence was inadmissible for foundational inadequacy because the nine steps set out in Lessenhop v. Norton, 261 Iowa 44, 153 N.W.2d 107 (1967) were not followed. This view, which formed the actual basis for trial court's exclusion of this evidence, wholly ignores that in setting out the nine-point foundational rule (261 Iowa at 52--53, 153 N.W.2d at 112) for admission of blood test evidence, Lessenhop had under discussion a contention that chapter 321B, The Code, applied. We are not here concerned with the restrictions of that chapter (chemical testing for intoxicated drivers) and cases based on its language. We are confronted with the reliability of a blood alcohol test conducted on a blood specimen recovered from the body of a person who met death by drowning, unconnected with any motor vehicle episode. Brooks was not driving nor was he even on a highway. The implied consent provisions of chapter 321B are not involved.

The issue is whether under Iowa general rules of evidence plaintiff in this civil case has laid proper foundation for admission of an alcohol test result on a blood specimen taken from her drowned decedent. The case below was, as a practical matter, decided as a matter of law, trial court holding, on the basis of largely uncontroverted evidence, three of the chapter 321B criteria set out in Lessenhop at 261 Iowa, page 52, 153 N.W.2d, page 112, were not satisfied.

We hold the trial court erred in applying the nine-point Lessenhop formula. Those standards control only in cases, both civil and criminal, arising under chapter 321B circumstances, as the following language from that opinion shows:

'Chapter 321B clearly relates to the authority to take blood tests when a person is suspected of driving while intoxicated * * *.' 261 Iowa at 52, 153 N.W.2d at 112.

Lessenhop also recognizes this distinction at page 51 of the Iowa Reports and page 111 of the Northwestern by reciting the generally accepted rule for laying a proper foundation before a blood test analysis may be received. It is only when we relate the general rule to the requirements of § 321B.4 that the nine-point foundation formula is either mentioned or mandated.

We must therefore review the facts relative to these tests in the light of our rules on the admissibility of such evidence without reference to the inapplicable nine-point standards set up in Lessenhop. Those facts, lifted from the first-trial testimony and plaintiff's further offers, are virtually uncontroverted.

As we have indicated, the blood was withdrawn from the decedent by mortician Lewis R. Jenks, at the request of the Rock Island County, Illinois, coroner. Jenks was at all relevant times an Illinois licensed embalmer. In 1942--43 he attended a mortuary science school in Chicago, there studying anatomy, physiology, pathology, chemistry, embalming and funeral directing. In the spring of 1943 he passed the Illinois licensing examination in embalming, funeral directing, pathology, chemistry and public health. After being licensed he served in the army medical corps in the Pacific and South Pacific areas until his discharge in 1946. Thereafter he...