Burnett v. Martin

• Decision Date: 18 September 1981
• Citation: 405 So.2d 23
• Parties: Johnny BURNETT, Jr., et al. v. James MARTIN, et al. Robert J. CROSSLIN, Administrator of the Estate of Rebecca Frost Hill v. James MARTIN, et al. Anthony McCARY, et al. v. James MARTIN, et al. 80-242, 80-242A and 80-242B.
• Court: Alabama Supreme Court

Page 23

405 So.2d 23

Johnny BURNETT, Jr., et al. v. James MARTIN, et al.

Robert J. CROSSLIN, Administrator of the Estate of Rebecca Frost Hill v. James MARTIN, et al.

Anthony McCARY, et al. v. James MARTIN, et al.

80-242, 80-242A and 80-242B.

Supreme Court of Alabama.

Sept. 18, 1981.

William J. Baxley and Charles A. Dauphin of Baxley, Stuart, Ward & Dillard, Birmingham, for appellants.

Eugene D. Martenson of Huie, Fernambucq, Stewart & Smith, Birmingham, for appellees.

MADDOX, Justice.

The plaintiffs in this case were involved in an automobile accident with the defendants and brought separate lawsuits for the resulting damages. The suits were consolidated and tried by jury with judgment being rendered for the defendants. Plaintiffs now appeal and present two issues for our consideration. These issues are: Did the trial court's admission and subsequent withdrawal of evidence concerning certain blood-alcohol content tests unduly prejudice the plaintiffs' case? Did the trial court err in refusing to give certain jury instructions which were submitted by the plaintiffs on the issue of contributory negligence?

The pertinent facts are as follows. The plaintiffs' automobile, driven by Billy Joe Hill with Rebecca Frost Hill, Johnny Burnett and Anthony McCary as passengers, was struck by the automobile of the defendants which was driven by Deputy Sheriff Jim Martin, who, at the time of the accident, was involved in a high speed chase of a third party. There was conflicting testimony as to whether the plaintiffs had run a stop sign at the intersection where the accident took place.

I

Shortly after the accident, the county coroner arrived and, after pronouncing Billy Joe Hill and Rebecca Hill dead, withdrew a blood sample from Billy Joe Hill. The blood sample was subsequently submitted to the Department of Forensic Sciences of the State of Alabama and an alcohol content analysis was conducted. The results of the analysis showed an alcohol content in the blood of Billy Joe Hill of .10 percent.

At trial, the defendant, over plaintiffs' objection, was allowed to place into evidence the results of this blood alcohol content test. At the close of the trial, however, the court decided the evidence of this test was inadmissible and made the following admonishment to the jury:

Now, this morning on certain motions the Court has excluded certain evidence, and I want you to listen very carefully about what I am about to say, because there is certain evidence that I am not going to allow to go to you for your consideration.

Now, this evidence, ladies and gentlemen, is pertaining to evidence that was given you during the course and conduct of the trial, and was a blood sample that was withdrawn by Doyle Cahela on Billy Joe Hill, the driver of the automobile in question; the objection being made by Plaintiffs' Counsel.

The Court this morning has ruled that the Defendants have failed to show that their evidence, concerning the blood sample taken from the driver of the automobile, Billy Joe Hill, by Doyle Cahela, is legal, which means I am not going to allow the evidence to go to you, the Jury.

Now, you have heard certain testimony regarding this evidence, and of course the attorneys for either side have presented evidence regarding these matters, and I charge you as a matter of law you cannot consider any evidence, with respect to the blood sample of Billy Joe Hill and Jim Martin, as to be considered by you, the Jury, in this matter as being pertinent evidence in the case, and you are not to consider it.

Also, I charge you that the testimony of the Toxicologist, Laura Shevlin, concerning the blood samples that was testified to in the deposition that was presented by Defense Counsel and read in court, that you are not to consider that as being evidence; it's just not for your consideration. You must put it out of your minds, because it's illegal, and you cannot base a decision on anything you heard regarding that part of the evidence that was presented to you.

You must do everything you can to erase it from your minds; just forget about it and not consider it as though it had never been given to you in the case. It is not to be considered as evidence, and you are just not to base your decision on it. If you based your decision on anything you considered concerning it, I would by law have to set it aside. So you can see the rationale that I am talking about; you are just not to consider it as being evidence in the case.

The plaintiff contends, however, that this instruction by the trial judge was not sufficient to cure the harm which the evidence of the blood alcohol content test had on his case. In brief, counsel for plaintiffs argues:

A review of the instant case and the circumstances surrounding the illegal evidence, shows a reversal to be warranted. After the objection to the testimony of the State Toxicologist was overruled, the portion of her deposition regarding the blood sample of Billy Joe Hill was read in full to the jury. Furthermore, the legal presumption surrounding a finding of .10% alcohol was raised in the questioning of John H. Kilbourn, another toxicologist from the State of Alabama. Nothing can be more detrimental to an automobile plaintiff's case than evidence that the driver of the automobile was intoxicated or under the influence of alcohol at the time of the accident. Evidence of Billy Joe Hill's intoxication was illegally admitted and was allowed to pray (sic) upon the jury's decision for several days. Only at the end of the trial immediately before the jury received its instructions, was the effect of this testimony attempted to be withdrawn. Regardless of the nature of the court's instruction, the prejudicial and detrimental effect of Billy Joe Hill's intoxication could not be eliminated from the jury's consideration.

Plaintiffs' contention is not well taken. It is inherent and unavoidable in our trial system that certain evidence must be heard and considered in its entirety before the court can render judgment on its admissibility. This was one such instance. In view of the trial judge's curative instruction, we need not determine whether this evidence was, in fact, admissible, under the provisions of Code 1975, § 32-5-193, or under general evidence principles regarding the admissibility of scientific test results. See McGough v. Slaughter, 395 So.2d 972 (Ala.1981).

Whether the evidence was admissible or not, the general rule applicable in this area is that if evidence is admitted, but later deemed improper and excluded, the error is cured so long as the jury is instructed clearly and explicitly to disregard the evidence. Jordan v. State, 79 Ala. 9 (1885). We deem the instruction given by the court here to be of sufficient clarity and explicitness for the jury to disregard the evidence.

Additionally, the evidence and testimony of the blood alcohol content test were not the only evidence presented at trial concerning the possible intoxication of Billy Joe Hill. Several witnesses who arrived at the scene of the accident shortly after it occurred testified to the strong smell of alcohol in and around the plaintiffs' automobile. Among these was a member of the emergency rescue squad who testified to the strong smell of alcohol when he checked Billy Joe Hill's vital signs. Even had the evidence of blood alcohol content analysis been kept completely from the jury, there would still have been evidence to infer that Billy Joe Hill was under the influence of alcohol at the time of the accident. In light of this fact, whatever error arose out of the blood alcohol content analysis having been presented to the jury and then withdrawn, was harmless. Rule 45, A.R.A.P.

II

Plaintiffs' other contention concerns the trial court's refusal to give certain jury instructions which each plaintiff respectively submitted on the issue of contributory negligence and its effect on each individual plaintiff's right to receive a favorable verdict. Plaintiffs assert that the court's instruction in this regard lumped together their respective rights and did not sufficiently explain to the jury the law relating to the contributory negligence of a driver and the imputation of that negligence, if any, to the passengers of the same automobile.

Had plaintiff properly presented the question, this contention of the plaintiff very well might have had merit.

The instructions which the plaintiffs submitted on this issue are:

2. I charge you, Ladies and Gentlemen of the Jury, that contributory negligence, if any, of a husband driving an automobile in which the wife is riding as a passenger does not bar the wife's right to recover against a third party if the wife is otherwise entitled to recover. (APJI 28.09)

3. I charge you, Ladies and Gentlemen of the Jury, that the negligence, if any, of a driver in driving an automobile in which the owner of the automobile is riding does not bar the owner's right to recover against a third party if the evidence satisfactorily shows an absence of control over the operation of the automobile by the owner, and, if the owner is otherwise entitled to recover. (Brown v. Southeastern Greyhound Lines, 255 Ala. 308, 51 So.2d 524 (1951).

4. I charge you, Ladies and Gentlemen of the Jury, that the negligence, if any, of a driver of an automobile in which other persons are riding as passengers does not bar the passengers' right to recover against a third party if the passengers are otherwise entitled to recover.

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