Jacobsen v. International Transport, Inc.
| Decision Date | 19 March 1968 |
| Docket Number | No. 18939.,18939. |
| Parties | Alvin A. JACOBSEN, Administrator of the Estate of Alan A. Jacobsen, Deceased, Appellant, v. INTERNATIONAL TRANSPORT, INC., E. E. Wolf, Allis-Chalmers Mfg. Co., and Jack M. Brown, a/k/a Jack M. Brown, Sr., Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Walter A. Newport, Jr., of Newport, Wine & Schebler, Davenport, Iowa, for appellant.
Theodore T. Duffield, of Patterson, Lorentzen, Duffield, Timmons, Wright & Irish, Des Moines, Iowa, for appellees; James A. Lorentzen, Des Moines, Iowa, on the brief.
Before VAN OOSTERHOUT, Chief Judge, MATTHES, Circuit Judge, and HARRIS, Chief District Judge.
VAN OOSTERHOUT, Chief Judge.
This is a timely appeal by Alvin A. Jacobsen, administrator of the estate of his deceased son Alan, from final judgment based upon a jury verdict for defendants dismissing his complaint against the defendants, the operator and owners of a tractor-trailer, for the wrongful death of Alan Jacobsen in a collision between the automobile Alan Jacobsen was driving and defendants' vehicle. The accident occurred on the early morning of April 22, 1966, near Walcott, Iowa. Hence the substantive law of Iowa controls. Jurisdiction, based upon diversity of citizenship and the requisite amount, is established.
Plaintiff bases this appeal solely upon his contention that testimony with respect to the alcoholic content of a blood sample withdrawn from the body of the decedent by the county medical examiner was improperly admitted into evidence over appropriate objection that the sample was obtained by means of an alleged illegal search and seizure and that the information contained in the medical examiner's report constituted an inadmissible privileged communication. The facts surrounding the fatal automobile accident are not relevant to the issue raised by this appeal and hence no purpose will be served by setting out such facts.
Plaintiff in support of his contention that the blood sample was illegally taken from the body of his decedent and that the result of the test was improperly received in evidence urges:
1. The result of the blood test is a privileged communication under § 321.271 I.C.A. and hence, inadmissible.
2. The result of the test is not admissible under the Iowa Implied Consent Law, ch. 321B, I.C.A., because (a) no written request for the sample was made by a peace officer as required by § 321B.3, and (b) the medical examiner failed to use a new factory wrapped needle in withdrawing the blood, as required by § 321B.4.
3. The taking of the blood sample constituted an unreasonable search and seizure in violation of the rights of the decedent under the state and federal constitutions.
We hold that plaintiff has failed to establish that the court committed error in receiving in evidence the results of the blood test, and we affirm the judgment of dismissal.
We shall summarize the pertinent facts bearing upon the issues before us. Dr. Perkins, a competent, qualified and licensed physician, is the duly appointed, qualified and acting medical examiner of Scott County, Iowa, the county in which the fatal accident here involved occurred. Dr. Perkins was promptly advised of the fatal accident and was told the body was being taken to the Mercy Hospital. He immediately went to the hospital and in his official capacity examined the decedent and found him to be dead. Dr. Perkins took charge of the dead body for the purpose of making the inquiry and report required by § 339.5, I.C.A.
He withdrew a blood sample from the body by means of a needle in accordance with the usual medical technique. He is not certain whether he used a needle from his own kit or one supplied by the hospital but he testified that in either event, the needle used was not a new one and that it was not taken out of an original factory package. Dr. Perkins testified that there was nothing in the procedure which he used to withdraw the blood which in any way would affect the validity of the blood test. The sample taken was properly preserved and traced into the hands of a qualified chemist who examined it and who appeared as a witness at the trial and described in detail the procedure used in making the test and vouched for its validity. The chemist testified that the test established that there were 344 milligrams of alcohol per one hundred c.c's of blood.
Dr. Perkins testified that he took the sample in his capacity as medical examiner at his own instance and that he had no written request for the taking of the sample from any peace officer. Dr. Perkins further stated in a supplemental affidavit that he took the sample for statistical purposes only, and "The taking of this blood sample was entirely extraneous insofar as involving any determination of the cause and manner of death of the decedent were concerned since my external examination and inquiries of other persons fully and completely disclosed the cause and manner of death of Mr. Jacobsen."
It is doubtless true that the injuries inflicted by the accident were the cause of the death and that the taking of the blood sample was not necessary to determine the cause of death. Upon the record before us, we cannot say that the taking of the blood sample did not fall within the scope of the rights and duties of the medical examiner to make the investigation required by statute.
Several officers testified that they detected a strong odor of alcohol about the body of the decedent immediately after the accident. The medical examiner was not asked whether he detected an alcoholic odor but it is reasonable to infer in event the officers' testimony is believed that the medical examiner had probable cause to believe from his examination of the body that the decedent had imbibed alcohol. We cannot say upon the record before us that the taking of the blood test had no reasonable relationship to the duties that the medical examiner was required to perform.
We find no merit to plaintiff's contention that § 321.271, I.C.A., makes the report of the medical examiner a privileged communication. Such statute deals with required reports to be filed with the Department of Public Safety. The powers and the duties of the medical examiner are set out in ch. 339, I.C.A.
In Lessenhop v. Norton, Iowa, 153 N. W.2d 107, 110-111, the court states:
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