Hoffman v. Tracy
| Decision Date | 30 September 1965 |
| Docket Number | No. 37656,37656 |
| Citation | 406 P.2d 323,67 Wn.2d 31 |
| Parties | Paul HOFFMAN, Jr., Guardian for Dina Louise Rood, a Minor, Respondent, v. Phillip S. TRACY, Administrator of the Estates of Joyce R. Rood and Gordon K. Harder, both deceased, Appellant. |
| Court | Washington Supreme Court |
Hager & Young, W. B. Hager, Tacoma, for appellant.
McCormick, Hoffman & Rees, Paul Hoffman, Jr., Tacoma, for respondent.
The plaintiff brings this action on behalf of a child who was injured when an automobile driven by her mother Joyce R. Rood and owned by Gordon K. Harder, who was also a passenger in the car, went off the highway and struck a utility pole. Mrs. Rood, Mr. Harder, and the minor plaintiff's younger brother were all killed in the accident. The administrator of the estates of Mrs. Rood and Mr. Harder was named as the defendant in this lawsuit.
There were no eyewitnesses to the accident which occurred on PSH No. 9, near Montesano, at approximately 2:00 a.m. on August 4, 1962. The automobile went off the wet pavement on a curve at a point where the speed limit was increased from 50 to 60 miles per hour. The sign indicating the speed limit of 60 miles per hour was knocked down by the vehicle when it left the highway. The automobile left two skid marks of 33 and 36 feet respectively on the shoulder of the road. It traveled a total distance of 66 feet from the point where it left the traveled portion of the roadway to the place where it came to rest. There was nothing to indicate that another vehicle had been involved in the accident.
In the front of the car were two beer bottles without caps and one or two bottle openers. One of these was in the lap of Mrs. Rood. There were two half-cases of beer in the car; and some of the bottles were broken. There was an odor of beer in the car and about the persons of the two adults.
Prior to 4:30 a.m. on the same day, at the mortuary, blood was removed from Mrs. Rood's body with a drain tube, which had previously been used in embalming procedures. During the embalming process a high percentage of embalming fluid flows through the drain tube, and the basic ingredient of that fluid is formaldehyde. However, the persons who removed the blood testified that the tube had been washed.
The blood was placed in a bottle containing a white powder, which was supposedly an anticoagulant. The container of blood was mailed with an identifying note dated August 6, 1962, to the King County Coroner. An employee of that office, without testing for formaldehyde, conducted a blood alcohol test, which showed a content of .37 per cent. Death can result at .45 per cent.
There was evidence that the presence of formaldehyde in blood will give the same result as alcohol in a test, and where there is a possibility that a blood sample contains formaldehyde, a test should be made to determine whether this substance is present. No such test was given in this instance. Dr. Charles P. Larson, a pathologist and plaintiff's witness, stated on cross-examination that in his opinion the procedure used to clean the drain tube after embalming would not guarantee proper cleaning of the tube. He further stated that the result of a test would be suspect in his mind if blood were drawn as it was in the instant case and not tested for formaldehyde.
The court instructed the jury that it could find for the plaintiff against the defendant, as administrator of the mother's estate, if it found that she was driving the car while intoxicated and that this was a proximate cause of the accident. It also instructed the jury that it could find against the defendant as administrator of the estate of Gordon K. Harder only if it found that he permitted Joyce R. Rood to drive his automobile when he knew or ought to have known that she was intoxicated and that this conduct on his part constituted gross negligence, which was a proximate cause of the accident.
The jury returned a verdict against the defendant in his capacity as administrator of both estates, in the amount of $12,500; and he has appealed from the judgment entered on that verdict.
It is the defendant's first contention that his motions to quash and to strike the evidence relating to the blood alcohol test should have been granted. He maintains that the plaintiff failed to present prima facie proof that the blood sample was free from adulteration, because the evidence was that the blood was removed with a tube which had previously been used for embalming and a witness testified that the only way to properly clean such a tube was to take it apart, which was not done in this instance.
The rule is that when the results of an alcohol test are offered in evidence, the plaintiff must present prima facie proof that both the test chemicals and the sample are free from adulteration which could conceivably introduce error into the results of the test. State v. Erdman, 64 Wash.2d 286, 391 P.2d 518; State v. Baker, 56 Wash.2d 846, 355 P.2d 806. In the latter case, the defendant presented evidence that both toothache drops and cough medicine could have been present in his mouth in sufficient quantity to affect the results of a breath-alyzer test, and the state's evidence showed that the defendant might have been given the test after being under observation for only fourteen minutes, while, by its own evidence the minimum period of delay between the taking of the last drink and the taking of breath for analysis must be fifteen minutes. This court held that the state had failed to make a prima facie showing that the test results were accurate.
In State v. Erdman, supra, the defendant contended that since the identity of a white powder which was placed in the blood-sample bottle was not proved, it must be considered an unknown chemical of unknown properties, consequently making the test inadmissible. We held, however, that the state's showing that an anticoagulant, which is a white powder, is customarily placed in blood-sample bottles, and that the test showed no inaccuracies caused by the white powder, was sufficient to establish prima facie that the test was reliable.
Here, the plaintiff presented testimony that the instrument used to extract the blood, which was customarily used for that purpose, had been cleaned in the customary manner prior to its use. Another witness testified that the manner of cleaning was not reliable; and the high alcohol content shown by the blood test which should have rendered the subject unable to operate a motor vehicle at all, also raises a serious doubt as to the accuracy of the test. But, we cannot say that the plaintiff failed to make a prima facie showing that the test was reliable. There was conflicting testimony, but the testimony tending to show that the test was accurate could have been believed by the jury and conflicting testimony rejected. Tending to corroborate the test's showing of the presence of alcohol in the blood was the evidence that opened beer bottles were found in the car, as well as bottle openers, and one or two glasses.
The question was one for the trier of the facts, and the trial court properly held that it was not within its province to...
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...In re Welfare of, 34 Wn. App. 82, 659 P.2d 1124 (1983) 77.13 Hoffman v. Hoffman, 57 Wn.2d 684, 359 P.2d 153 (1961) 11.04 Hoffman v. Tracy, 67 Wn.2d 31, 406 P.2d 323 (1965) . . . . . . . . . . . . . . 41.04[4][b]; 75.04[1] Hogan v. Raytheon, 302 F.3d 854 (8th Cir. 2002) . . . . . . . . . . .......
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Table of Cases
...v.Hinson, 1 Wn.App. 348, 461 P.2d 560 (1969): 6.2(6) Hinzman v.Palmanteer, 81 Wn.2d 327, 501 P.2d 1228 (1972): 4.14 Hoffman v.Tracy, 67 Wn.2d 31, 406 P.2d 323 (1965): 6.3(2)(h) Holloway v.Holloway, 69 Wn.2d 243, 417 P.2d 961 (1966): 5.6(2) Holly St. LandCo. v. Beyer, 48 Wash. 422, 93 P. 106......
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§6.3 Tort Liability
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