Diener v. Mid-American Coaches, Inc.

• Decision Date: 13 April 1964
• Docket Number: No. 50224,MID-AMERICAN,No. 1,50224,1
• Parties: Eugene R. DIENER, Appellant, v.COACHES, INC., a Corporation, Respondent
• Court: Missouri Supreme Court

Page 509

378 S.W.2d 509

Eugene R. DIENER, Appellant, v. MID-AMERICAN COACHES, INC., a Corporation, Respondent.

No. 50224.

Supreme Court of Missouri, Division No. 1.

April 13, 1964.

Motion for Rehearing or for Transfer to Court En Banc Denied

May 11, 1964.

Henry C. Stoll, Koenig, Dietz & Siebels, William L. Mason, Jr., St. Louis, for appellant.

F. X. Cleary, Paul S. Brown, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.

HOUSER, Commissioner.

Eugene R. Diener, a passenger on a bus owned and operated by Mid-American Coaches, Inc., brought an action against the bus company on the theory of res ipsa loquitur for damages for personal injuries sustained by him when the bus left the road and ran off an embankment. The bus company, admitting only that there was a collision and that plaintiff was a passenger on its bus, denied generally, and defended on the theory that the bus left the road because the braking and steering mechanisms of the bus became inoperative due to a collision between the bus and an oncoming automobile, as a result of the automobile crossing the center line and colliding with the bus in such close proximity that the bus driver could not avoid a collision. A jury returned a verdict for defendant, and plaintiff appealed. We have jurisdiction since the prayer of the petition was for $30,000.

Plaintiff, a fare-paying passenger, was riding on the bus at 2 a. m., proceeding west on Highway 66 near Pacific. The bus was traveling 40 miles an hour. The weather was cold and clear and the surface of the highway was dry concrete. An approaching eastbound Chevrolet driven by one McNamee moved from its proper position on the south side of the highway, over the center line, partially onto its wrong or north side, and into collision with the bus, which was on its right or north side of the highway. The collision occurred on a bridge. The bus driver testified that when the Chevrolet was the length of a car and a half from the bus it 'pulled' from its proper lane 'right into the bus.' According to him, the bus lights went out, and when the foot brakes were applied the pedal went to the floor, and had no effect on the forward movement of the bus. The steering mechanism was damaged. The driver tried to straighten out the bus by pulling on the steering wheel to the right but the bus did not respond. The bus proceeded 200 feet from point of impact, left the pavement and ran down an embankment off the traveled portion of the highway and was wrecked. The driver stayed at the controls, holding the steering wheel. He made no attempt to use the emergency brake although the lever actuating the emergency brake was within easy reach. There was no evidence that the emergency brake was damaged or affected by the collision. The emergency brake mechanism was not located in the area of the bus damaged by the collision.

McNamee died the same day without making a statement.

The first point for decision is whether the court erred in admitting expert testimony given by Dr. Eugene Tucker, a pathologist, whose duty it was to investigate deaths for the county coroner, to the effect that McNamee's ability to drive was seriously and detrimentally affected by alcohol. Dr. Tucker drew blood out of McNamee's heart after he expired, and had it tested in the laboratory. The test showed .35 grams of alcohol per one hundred millimeters of blood. The minimum percentage of alcohol which will render a person incapable of properly driving an automobile is .15 grams.

Plaintiff contends that this evidence was incompetent because obtained by the unlawful and criminal desecration of a dead body amounting to an unconstitutional search and seizure, conduct repugnant to common ideas of decency; that those who participated in this procedure were guilty of a crime, and the use of the data obtained was against public policy; that only evidence lawfully obtained may be adduced.

We are of the opinion that this contention cannot be sustained. 'The courts do not concern themselves with the method by which a party has secured the evidence which he adduces in support of his contentions; and hence, in the absence of constitutional or statutory restrictions, evidence which is otherwise admissible will not be excluded because it has been obtained fraudulently, wrongfully, or illegally.' 31A C.J.S. Evidence, Sec. 187; Plater v. W. C. Mullins Const. Co., 223 Mo.App. 650, 17 S.W.2d 658. There is an exception to this rule where the evidence has been obtained by a search and seizure in violation of the constitution, Plater v. W. C. Mullins Const. Co., supra, but this exception does not aid plaintiff. The guaranteed right is personal in nature, and plaintiff had no standing to complain or urge the constitutional question. State v. Green, Mo.Sup., 292 S.W.2d 283, 286. It was not plaintiff's blood that was drawn but McNamee's, and there is no showing of any relationship between plaintiff and McNamee which would entitle plaintiff to raise the question of a violation of constitutional guarantees enjoyed by McNamee. Nor need we determine the question if the interest sought to be protected is the right of privacy because 'the right of privacy is a personal one which in the absence of statute, dies with the person to whom it is of value and cannot be claimed by his estate or next-of-kin,' Fretz v. Anderson, 5 Utah 2d 290, 300 P.2d 642, 646, or by a stranger. Nor can this plaintiff object to the evidence on the basis that it was obtained as a result of the desecration or mutilation of the body of McNamee. The two men were complete strangers, and plaintiff would have no right to assert the inviolability of the body, or to object to the findings of the pathologist as a result of the examination of a body in which plaintiff had no right or interest. There are other reasons why plaintiff is not in a position to raise this question. The contention assumes that Dr. Tucker did not have the consent of the next of kin to draw blood from McNamee's body, but this is not borne out by the record, which is silent on the question. Furthermore, no objection was made at the trial on this ground when the evidence was offered, and this ground for exclusion of the evidence was not raised in plaintiff's motion for new trial. Therefore the socalled constitutional point was not preserved at the earliest opportunity, as required.

Plaintiff further contends that the expert testimony was not admissible because the intoxication of McNamee was not in issue; that the issue of intoxication had not been raised in the pleadings; that proof of this issue was not necessary because there was sufficient other evidence to establish that the collision was caused by McNamee's negligence; that the expert testimony was shown 'cumulatively' and in bad faith for the sole purpose of creating sympathy for defendant and its driver and passion and prejudice against plaintiff.

Notwithstanding the issue of intoxication was not affirmatively raised by the pleadings, evidence of the fact that McNamee's faculties were impaired by the use of alcohol was admissible under the general issue. 5A Am.Jur. Automobiles and Highway Traffic, Sec. 942, p. 832; Boehm v. St. Louis Public Service Co., Mo.Sup., 368 S.W.2d 361, 371, 372. This evidence bore directly upon an important issue in the case, whether the bus driver was negligent in colliding with the Chevrolet, thereby causing the mechanical systems of the bus to go awry, or whether the collision was caused by the negligence of another.

The transcript does not support plaintiff's contention that the expert evidence as to McNamee's intoxication was cumulative; or that defendant 'already had plenty of evidence' that McNamee...