Divine v. Groshong

• Decision Date: 24 March 1984
• Docket Number: No. 55667,55667
• Citation: 679 P.2d 700,235 Kan. 127
• Parties: Melba Jeanne DIVINE, as Guardian and Conservator of The Estate of James L. Winfree, Appellant and Cross-Appellee, v. Max E. GROSHONG and Liberty Mutual Insurance Company, Appellees and Cross-Appellants.
• Court: Kansas Supreme Court

Page 700

679 P.2d 700

235 Kan. 127

Melba Jeanne DIVINE, as Guardian and Conservator of The Estate of James L. Winfree, Appellant and Cross-Appellee, v. Max E. GROSHONG and Liberty Mutual Insurance Company,

Appellees and Cross-Appellants.

No. 55667.

Supreme Court of Kansas.

March 24, 1984.

Syllabus by the Court

1. Except as otherwise provided by statute, constitutional prohibition or court decision, all relevant evidence is admissible.

2. If a blood sample is taken under appropriate conditions to guard against contamination, if the sample is properly marked and conveyed to the laboratory, if the chemical testing is properly conducted by competent personnel, and if the test results are relevant and material to the issues presented in the litigation, then those results are admissible in a civil action whether or not they are taken in conformity with K.S.A.1981 Supp. 8-1001.

3. The exclusionary rule ordinarily should not be exercised in civil cases in which neither the State nor any of its officers is a party.

4. There is a rebuttable presumption in this state that a driver who at the time of an accident has 0.10% or more by weight of alcohol in his or her blood is under the influence of alcohol and is incapable of driving safely. This presumption is applicable in both civil and criminal cases.

5. Emergency audible and visual signals--siren and flashing red lights--should be used by an emergency vehicle only when it is acting in an emergency.

Richard N. Roe, of Lowe, Terry & Roberts, Olathe, argued the cause, and Richard L. Roberts, Olathe, of the same firm, was with him on the briefs for appellant and cross-appellee.

Richard T. Merker, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, argued the cause, and Leonard J. Schapker, Overland Park, of the same firm, was with him on the brief for appellees and cross-appellants.

MILLER, Justice:

The plaintiff, Melba Jeanne Divine, guardian and conservator of James L. Winfree, appeals from the judgment entered in the District Court of Johnson County upon the verdict returned by a jury in this personal injury action. The collision out of which this action arose occurred on October 2, 1981. A pickup truck being driven by Winfree collided with a disabled truck being towed by defendant Max Groshong. Winfree sustained serious injuries. Groshong was operating under authority granted by the Kansas Corporation Commission, and defendant Liberty Mutual Insurance Company had issued a "filed policy" of liability insurance to Groshong. See K.S.A.1983 Supp. 66-1,128. The primary issue is whether the results of a blood alcohol test, administered to Winfree, were admissible in evidence.

The facts of the collision are clear and relatively undisputed. U.S. Highway 169 runs in a north-south direction at the south edge of Olathe. It is a four-lane road, with a large medial strip dividing the two northbound from the two southbound lanes. Interstate Highway 35, also a divided four-lane highway, runs in an east-west direction at the south edge of Olathe, and through traffic on I-35 passes under U.S. 169. On October 2, 1981, at about 11:30 o'clock p.m., Max Groshong was towing a disabled truck behind his 1971 Kenworth wrecker. The disabled truck weighed about ten tons. Groshong, proceeding westerly on I-35, took the exit ramp to his right and approached U.S. 169 from the east. He stopped at a stop sign, waited until a southbound vehicle had passed, and then looked to the south. Seeing no vehicles approaching, he entered the intersection. The intersection was unlighted but there were many lights on the wrecker and at least two lights on the left or south side of the disabled truck. When the Kenworth was through the intersection and heading to the south, Groshong saw a vehicle coming over the top of the overpass. He did not see it slow or change lanes, and he did not hear any noise indicating that the brakes were being applied. The northbound vehicle, a Toyota pickup driven by Winfree, struck just in front of the left rear dual wheels of the disabled truck. The collision occurred in about the middle of the northbound lanes on U.S. 169. The speed of Winfree's vehicle was estimated as being between forty-nine and sixty-four miles per hour. Only very faint scuff marks, indicating that Winfree was just starting to put on the brakes, were found. Police officers later did a "line of sight" test and determined that the accident scene and the two trucks were clearly visible from a point south of the overpass, 831 feet from the point of impact.

Winfree's pickup was demolished and he was pinned inside. He was knocked unconscious and remained in a coma for over two months. Groshong, police officers and health service personnel attended Winfree, and several of these people noted the odor of alcohol about him. The odor was described as "moderate to strong," "strong," and "obvious." After Winfree was freed from the wreckage, he was taken by ambulance to the Olathe Community Hospital. Detective Melvin Richey, who was at the scene, was asked by the officer in charge to follow Winfree to the hospital for the purpose of collecting a blood sample. Detective Richey followed the ambulance to the hospital, asked one of the hospital employees to extract a blood sample from Winfree, and stood by while the hospital employee drew the blood in his presence. The sample was packaged, sealed, and mailed to a laboratory in Topeka for examination. Test results indicated that Winfree's blood contained .15% alcohol by weight. Detective Richey testified that, though Winfree was unconscious, he placed him under arrest for driving while under the influence of alcohol, and that Winfree was in his custody when the sample was taken. Richey did not tell Winfree or anyone at the hospital of the arrest. Winfree was later taken to another hospital, remained in a coma, and was declared incompetent by the District Court of Johnson County before he was released from the hospital. No formal charges were ever filed against him. The trial judge, after hearing the evidence out of the presence of the jury, found that Winfree "was under arrest or was otherwise in custody" when the blood sample was taken, and he admitted the results of the test in evidence. The jury attributed 70% of the fault to Winfree, 30% to Groshong. Judgment was entered for the defendants, and plaintiff appeals.

Plaintiff contends that the results of the blood alcohol test were inadmissible and should have been excluded in this civil action for two reasons: (1) they were not obtained in conformity with K.S.A.1981 Supp. 8-1001; and (2) they were taken in violation of Winfree's Fourth Amendment rights. Plaintiff argues that the trial court's finding that Winfree was under arrest or otherwise in custody is not supported by competent evidence and is erroneous as a matter of law. Plaintiff also argues that the taking of blood for the purpose of analysis, from the person of one who is unconscious at the time, constitutes a violation of his constitutional rights.

K.S.A. 60-407 is our basic evidence rule. It provides that "[e]xcept as otherwise provided by statute ... all relevant evidence is admissible." The Advisory Committee Notes state:

"This rule wipes out all existing restrictions and privileges and limitations on the admissibility of relevant evidence. They are then reinstated by subsequent sections insofar as desirable. This is necessary if a complete and orderly code is presented as to form and contents.

"This section presents the basic rule. All provisions that follow, except the few touching upon related matters or procedure, are exceptions to this rule in the form of limitations or modifications."

Gard's Kansas C.Civ.Proc.2d Annot. § 60-407. Advisory Committee Notes to Laws of 1963 p. 75 (1979). Judge Gard, commenting on this section in his Kansas Code of Civil Procedure 2d Annotated, says:

"No court decision has stated the rule so pointedly as does this provision, but the decisions are not in conflict with the policy of it. It simply recognizes the fundamental principle that the primary test of admissibility of evidence is its relevancy to the issue being investigated; and that the trier of the fact should have all of the relevant evidence which is offered unless some overriding consideration of policy or expediency requires its exclusion." pp. 75-76.

Judge Gard goes on to say:

"Constitutional considerations cannot be affected by these rules. For example illegally obtained evidence may be inadmissible on constitutional grounds, but not because it is irrelevant. Any constitutional questions which may arise are inherent and may, of course, be raised independently of this rule. The constitutions, federal and state, contain their own rules. To whatever extent the rules stated in this section violate in their application any constitutional right the constitutional consideration would be prevailing." p. 77.

We start with the premise that the evidence, if relevant, is admissible. This is true unless some statute or constitutional provision mandates its exclusion. The challenged evidence, the result of the blood alcohol test, is relevant evidence on the issue of Winfree's negligence. See Townsend, Administrator v. Jones, 183 Kan. 543, 331 P.2d 890 (1958); Rhoades v. Atchison, T. & S.F. Rly. Co., 121 Kan. 324, 246 P. 994 (1926); and McIntosh v. Oil Co., 89 Kan. 289, 131 P. 151 (1913). The issue before us is not whether the evidence was relevant, but rather whether it should have been excluded for the reasons asserted. A general rule is set forth in 31A C.J.S., Evidence § 187, as follows:

"While there is some authority to the contrary, it has been held that evidence obtained fraudulently, wrongfully, or illegally ordinarily is not incompetent, unless it is rendered incompetent as a result of constitutional or statutory regulations.

....

"The courts do not concern themselves with the method by which a party has secured the...