Fretz v. Anderson, 8334

• Decision Date: 16 August 1956
• Docket Number: No. 8334,8334
• Parties: d 290 Dale M. FRETZ, Plaintiff and Respondent, v. Ray ANDERSON, as Administrator of the Estate of Mack F. Anderson, Deceased, and Ringsby Truck Lines, Inc., and Adam Lehl, Defendants and Appellants.
• Court: Utah Supreme Court

Page 642

300 P.2d 642

5 Utah 2d 290

Dale M. FRETZ, Plaintiff and Respondent, v. Ray ANDERSON, as Administrator of the Estate of Mack F.

Anderson, Deceased, and Ringsby Truck Lines, Inc.,

and Adam Lehl, Defendants and

Appellants.

No. 8334.

Supreme Court of Utah.

Aug. 16, 1956.

Rich & Strong, Salt Lake City, for appellant.

Richard W. Brann, Ogden, for respondent.

McDONOUGH, Chief Justice.

Appeal from a judgment on a verdict for plaintiff for $10,000.00 general damages and $1,135.90 special damages arising out of an automobile collision against the estate of the deceased, who was killed in that accident or immediately prior thereto.

The overturned automobile of the deceased was observed on the east half of a paved road at about 2:30 a. m. by a driver for Ringsby Truck Lines, who was traveling south on the west half of the pavement. He slowed his semitrailer and stopped it a short distance beyond the wreck and parked partly on the west shoulder. While he was preparing to set out flares to warn other drivers, plaintiff, driving north, smashed into the damaged car on the highway, turning it completely about and pushing it approximately 30 feet north of its former position. Investigation after the accident revealed skid marks laid down by plaintiff's car for about ten feet before the impact and plaintiff testified that she could not see the automobile in the road because she was temporarily blinded by the lights of the truck on the opposite side, and that she slowed down on approaching it and applied her brakes hard after passing the truck. Blood was extracted from the deceased and tested for alcohol content, and the doctor who made the chemical analysis testified that the deceased was 'intoxicated to the extent of confusion.' The state trooper who investigated the accident testified that he took four or more whiskey and wine bottles, three of which were broken, from the deceased's automobile and that he determined from skid marks that the automobile traveling south left the highway 300 feet north of the collision, went onto the shoulder on the east side of the highway, then returned westward to the highway and overturned at the point of collision. One of the tires on the Anderson car was mutilated and the rim was damaged, indicating the automobile had been run while the tire was flat.

Appellant relies on six points for reversal, including alleged errors in admission of evidence and in giving instructions, and declares that there was a failure of proof of the deceased's negligence proximately causing the accident; that plaintiff was guilty of contributory negligence, and that damages awarded are excessive.

This is the first case brought to this court under U.C.A.1953, 78-11-12, providing for the survival of certain tort actions:

'Causes of action arising out of physical injury to the person or death, caused by the wrongful act or negligence of another, shall not abate upon the death of the wrongdoer, and the injured person or the personal representatives or heirs of one meeting death, as above stated, shall have a cause of action against the personal representatives of the wrongdoer; provided, however, that the injured person or the personal representatives or heirs of one meeting death shall not recover judgment except upon some competent satisfactory evidence other than the testimony of said injured person.'

Thus, the questions raised, although not new to our law, present considerations beyond those normal to a situation where the defendant, as driver of an automobile, is alive and testifies in his own behalf. For example, respondent cites a number of Utah cases holding that there is a presumption of negligence where the defendant encroaches on the portion of the street reserved for traffic from the opposite direction. Clearly, such a presumption is inapplicable to cases such as this, where the defendant is unable to rebut the presumption, even though the driver of the automobile had he lived, might have been able to produce evidence to show that he was not negligent.

We agree that one whose negligent or unlawful act causes an obstruction in a highway is liable for injury occasioned thereby, but it is not negligence to permit a disabled vehicle to stand in the highway under circumstances which makes its removal impossible. Crawford v. Miller, 163 Kan. 718, 186 P.2d 116. Likewise, we cannot charge the operator of the overturned automobile with the duties of providing lights for the protection of other vehicles on the highway, U.C.A.1953, 41-6-129, when all of the evidence points to the fact that he was unconscious, seriously injured, or dead immediately after his car came to rest. MacDonald v. Appleyard, 94 N.H. 362, 53 A.2d 434. Therefore, the issue of negligence in the present case only relates to whether the disablement of the vehicle struck by plaintiff occurred as a result of the operator's negligence. Keller v. Breneman, 153 Wash. 208, 279 P. 588, 67 A.L.R. 92.

Appellant argues that the court erred in admitting the testimony of Dr. Freeman, who aided in the extraction of blood from the deceased and conducted chemical tests upon it for the determination of the alcohol content. He testified that the analysis disclosed a '0.268 per cent by weight of alcohol in the specimen,' which, in his opinion, indicated that the deceased 'was intoxicated to the extent of confusion.' Under U.C.A.1953, 41-6-44, which provides for criminal prosecution for driving while intoxicated, it is presumed that the defendant was under the influence of intoxicating liquor if there was 0.15 per cent or more by weight of alcohol in the defendant's blood.

There was no question of identity of the blood sample, for Dr. Freeman had the specimen in his control from the time that it was extracted and testified as to the methods of his analysis. Appellant emphasizes a few discrepancies in the doctor's testimony which were brought out on cross examination; the jury apparently believed that the doctor's confusion was due to his lack of experience in testifying and accepted his candid corrections of misstatements. We cannot see how such matters go to the admissibility of the evidence.

Appellant cites to us no authorities to substantiate his apparent position in arguing that the deceased's parents did not consent to the taking of the blood sample; nor can be determine whether by such argument he is concerned with the constitutionality of the use of such evidence or the violation of some property interest in the dead body. The latter question, of course, would not be determinable of the admissibility of the evidence in a suit against the estate, even though the extraction of a quantity of blood from the body might, under some reasoning, be the basis of a separate law suit. It would appear that most of the cases treating the use of analyses of body fluids as evidence in the field of constitutional law are criminal cases dealing with unreasonable search and seizure or the privilege of the accused against self-incrimination. See 25 A.L.R.2d 1407; State v. Cram, 176 Or. 283, 160 P.2d 283, 164 A.L.R. 952, 967. In civil cases, the right of privacy or the inviolability of the person is the interest sought to be preserved and in some instances, the courts have held that an order for a physical examination violates the party's constitutional rights, Metropolitan Life Ins. Co. v. Evans, 183 Miss. 859, 184 So. 426; Haynes v. Haynes, Sup., 43 N.Y.S.2d 315; contra, Countee v. United States, 7 Cir., 1940, 112 F.2d 447, holding Rule 35(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. to be constitutional.

Only one case, Bednarik v. Bednarik, 18 N.J.Misc. 633, 16 A.2d 80, comes to our attention as holding that an order requiring a blood test was an infringement of the right of privacy, and this case was overruled in Cortese v. Cortese, 10 N.J.Super. 152, 76 A.2d 717. However, the determination of the question is unnecessary here, for 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. The blood test of the decedent was admissible in a suit against his estate. Kuroske v. Aetna Life Insurance Co., 234 Wis. 394, 291 N.W. 384, 127 A.L.R. 1505; Lawrence v. City of Los Angeles, 53 Cal.App.2d 6, 127 P.2d 931.

The witness, Frampton, the admission of whose testimony appellant also cites as error on the part of the trial court, testified that he observed a 1939 Chevrolet (the make and model of the deceased's automobile) traveling south out of Scipio. For some reason not specified in the record, he attempted to catch the automobile but was unable to do so, although he drove in excess of sixty miles per hour. He admitted that his only means of identifying the automobile was that 1939 Chevrolets have taillights placed peculiarly high on the rear of the vehicles. He could not testify positively that the automobile which he saw speeding was the same one as he later observed overturned in the road. Certainly, this evidence is weak, and cross-examination emphasized its weakness for the scrutiny of the jury, but should it have been excluded as having no probative value whatsoever? The cases on this point are very few, perhaps, for the reason suggested in 2 Wigmore on Evidence, Sec. 412, that if the circumstance of identity has no real probative value, no harm will be done; while if it has such value in combination with other facts, good evidence may be excluded by passing upon it piecemeal. Professor Wigmore suggests as a test of admissibility of circumstantial evidence of identification:

'A mark common to two supposed objects is receivable to show them to be identical whenever the mark does not in human experience occur with so many objects that the chances of the two supposed objects are too small to be appreciable. But it must be understood that this test applies to the total combination of circumstances offered as a mark, and not to...