Brown v. Collins, 2698

• Decision Date: 22 May 1969
• Docket Number: No. 2698,2698
• Citation: 223 So.2d 453
• Parties: Louis BROWN, Plaintiff and Appellant, v. Clarence L. COLLINS et al., Defendants and Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 453

223 So.2d 453

Louis BROWN, Plaintiff and Appellant, v. Clarence L. COLLINS et al., Defendants and Appellees.

No. 2698.

Court of Appeal of Louisiana, Third Circuit.

May 22, 1969.

Rehearing Denied June 18, 1969.

Neblett, Fuhrer & Hunter, by Walter M. Hunter, Jr., Alexandria, for plaintiff-appellant.

Guillory, Guillory & Guillory, by Robert K. Guillory, Eunice, for plaintiff-appellee.

Gist, Methvin & Trimble, by DeWitt T. Methvin, Jr., Alexandria, for defendants-appellees.

Before SAVOY, HOOD and CULPEPPER, JJ.

CULPEPPER, Judge.

This is a companion case to Bradley v. Collins, La.App., 223 So.2d 457 in which a separate judgment is being rendered by us this date. Both are suits for damages for personal injuries arising out of a single head-on collision between two automobiles. Plaintiffs were passengers in a vehicle driven by the defendant, Clarence L. Collins, and insured by the defendant, State Farm Mutual Automobile Insurance Company. The other vehicle was being driven by Elydrah Williams.

Williams and his passengers also filed suit against Collins and State Farm. The insurer concedes liability to the full extent of its coverage of $20,000. The actual contest if between the Williams group on one hand, and Brown and Bradley on the other, for the insurance benefits.

It is conceded by all parties that the accident was caused solely by the negligence of Collins in driving on the wrong side of the highway. The sole issue in the two present case is whether Brown and Bradley, who were passengers in the Collins automobile, were contributorily negligent in riding with Collins when they knew he was under the influence of intoxicating beverages. From an adverse judgment, Brown and Bradley appealed.

The general facts are that on Sunday, June 11, 1967, at about 4:20 p.m., Collins was driving in a westerly direction on U.S. Highway 190, a two-lane, two-way highway between Elton and Kinder, Louisiana . He drove into his left lane, in an attempt to pass another vehicle, and ran head-on into the automobile driven by Williams, who was proceeding in his own proper lane in an easterly direction. One passenger in the Williams vehicle was killed and several seriously injured. Collins received a minor head injury and his two passengers were seriously injured.

The substantial issue is whether Collins was intoxicated. Collins himself testified as follows: He had done 'considerable drinking' the Saturday night before the accident. He arose Sunday morning, ate no breakfast, and met the plaintiff, James Bradley, in Oakdale. He and Bradley and another man, not involved in this litigation, went to the 'Hardwood', a club in Oakdale, where they each drank a quart (equivalent of two bottles) of beer between about 10:15 a.m. and 11:30 a.m. Collins and Bradley then went to Oberline, picked up the plaintiff, Louis Brown, and went to a tavern. While there, Collins drank 'three or four beers.' They left Oberlin about 2:00 p .m. and went to Elton, to a cafe where a dance was in progress. While there, Collins drank 'three or four beers' and he and the two plaintiffs and another man also shared two one-half pints of whisky, chasing the whisky with the beer. They left the cafe in Elton about 4:00 p.m. and the accident occurred shortly thereafter.

The evidence also shows that Collins is 5 10 1/2 tall and weighs 132 pounds. He admits that he had nothing to eat during all of this period of drinking.

Summarizing Collins's testimony, he drank at least eight beers and shared a pint of whisky with three other men between about 10:15 a.m . and 4:20 p.m., the time of the accident.

The plaintiff Brown was unable to testify because of his injuries. However, Bradley testified that he and Collins each had only one beer at Oberlin, at about 2:15 p.m., another beer at the dance at Elton, and that four of them shared one-half pint of whisky. He also says that when they left the dance they each took one beer to drink in the car. Bradley says Collins was not intoxicated.

Clarence Jones, another witness for the plaintiffs, testified he saw Collins and the two plaintiffs at the dance in Elton and all he saw them drink was the one-half pint of whisky. He testified Collins did not appear to be intoxicated.

L. J. Bertrand, the state trooper who investigated the accident, testified as to some of the details of the accident. He said Collins was in the wrong lane of traffic and left no skidmarks, which to him indicated that Collins did not apply his brakes. He did not see Collins except in the hospital in Jennings. He says he smelled liquor on his breath and ordered a blood test taken.

In addition, Elydrah Williams, driver of the other vehicle, and his brother, Billy Williams, who arrived at the scene shortly after the accident, testified that at the scene they saw Collins and were of the opinion that he was intoxicated. They said he smelled of intoxicating liquor, staggered when he walked, 'babbled' when he talked and had to lean on the car to stand up. Of course, this testimony is weakened to some extent by the fact that Collins did have a laceration of his forehead, which could have caused his dazed condition.

During the trial the court permitted the Williams group to file in evidence, over plaintiffs' strenuous objection, certified copies of the records of two hospitals showing the percentage of alcohol found in the blood of Collins shortly after the accident.

The question is whether the medical records were admissible in evidence under LSA-R.S. 13:3714 which reads as follows:

'Whenever a certified copy of the chart or record of any hospital in this state, signed by the director, assistant director, superintendent or secretary-treasurer of the board of administrators of the hospital in question, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination. As amended Acts 1952, No. 519, § 1; Acts 1966, No. 161, § 1.'

The first record is from the American Legion Hospital in Jennings, Louisiana. It shows that at 6:00 p.m. on the date of the accident blood was drawn from Clarence Collins and released to J. B. Arrant, a state trooper, for delivery to the Lake Charles Memorial Hospital. This record is certified by Ruth Finch, R.N., administrator of the Jennings Hospital.

The next hospital record in question is from the Lake Charles Memorial Hospital. It is signed by A. L. Cook, M.D., shows he performed a test on the blood sample taken from Collins...