Lessenhop v. Norton

• Decision Date: 19 September 1967
• Docket Number: No. 52190,52190
• Parties: John H. LESSENHOP, Administrator of the Estate of Lyle M. Ford, Deceased, Appellant, v. Opal E. NORTON, Administrator of the Estate of Donald Walter Norton, Deceased, Opal Elida Norton and Walter B. Hopson, Appellees.
• Court: Iowa Supreme Court

Page 107

153 N.W.2d 107

261 Iowa 44

John H. LESSENHOP, Administrator of the Estate of Lyle M. Ford, Deceased, Appellant, v. Opal E. NORTON, Administrator of the Estate of Donald Walter Norton, Deceased, Opal Elida Norton and Walter B. Hopson, Appellees.

No. 52190.

Supreme Court of Iowa.

Sept. 19, 1967.

John D. Randall and Fisher & Pickens, Cedar Rapids, for appellant.

Tom Riley, Cedar Rapids, and William Klotzbach, Independence, for appellees Norton.

James W. Crawford, Cedar Rapids, and Wirt P. Hoxie, Waterloo, for appellee Hopson.

LARSON, Justice.

In an action for damages by decedent's administrator for defendants' alleged negligence in the operation of their automobiles, a cross-petition for damages by one defendant, and a counterclaim by another, the jury returned a verdict for all defendants. Only plaintiff appeals.

This accident occurred on Highway #150 approximately three miles north of Midway in Linn County, Iowa, on May 21, 1964, shortly after 10 P.M. The asphalt-covered concrete pavement, 24 feet 3 inches wide at this point, runs approximately north and south. The weather was clear and the pavement dry. It appears that plaintiff's decedent, Lyle M. Ford, killed in the accident, was driving a 1954 Tudor Mercury sedan northward, followed by defendant Walter B. Hopson in a 1959 Pontiac sedan. Defendant Donald Walter Norton, also killed in this accident, was driving a 1962 Ford Galaxie sedan southward when the Ford and Norton cars collided head on. Hopson, unable to stop, crashed into Ford's car, upsetting it and knocking it from the pavement.

Plaintiff's petition, in three divisions, sets out a claim against Norton in Division I, a claim against Hopson in Division II, and a claim against Norton and Hopson jointly in Division III.

Subsequent to the verdict, the trial court overruled plaintiff's motion for a new trial, and this appeal followed.

Assigned as error are (1) the trial court's failure to compel Norton's counsel to refrain from courtroom references to blood alcohol tests as requested in plaintiff's Motion in Limine, (2) its acceptance of testimony by defendant's expert, L. J. Burianek, who had insufficient basis for the opinion expressed, and (3) its requirement that the jury consider the case beyond the normal working hours required of jurors in Linn County, Iowa. A more detailed statement of the relevant facts as they bear upon the respective assigned errors will be made hereafter.

I. Having been informed during a pretrial conference that the issue of driver consumption of alcoholic liquor would be injected into the case, plaintiff's counsel filed a motion in limine premised on the ground that such evidence would be immaterial and any references thereto before the jury would be highly prejudicial to plaintiff's case. In this motion plaintiff alleged the only basis upon which such an issue (driver-drinking) could be raised was the fact that there is a statement on the certificate of death which read 'Blood Alcohol Value 82.5 mg%', signed by Percy G. Harris, M.D., Linn County Medical Examiner; that said certificate is inadmissible to show blood alcohol value or cause of death and that 'there is no basis upon which there can be any proof of blood alcohol value', it being hearsay, and that 'there has been an absolute failure to comply with the provisions of Sections 321B.4 and 321B.5 of the Iowa Code Annotated.' It further alleged such prohibition was necessary to protect plaintiff 'from the prejudicial conduct and the effect of the suggestions, inuendoes, whether by statements made to the jury, questions to the jury during voir dire, or questions to any witnessess containing such suggestions * * *.' In his prayer plaintiff asked that any references be prohibited as to driving impairment or the consumption of alcoholic beverage 'based upon the certificate of death hereinabove referred to Or based upon any matter related to blood alcohol value of the decedent Lyle M. Ford.' (Emphasis added.)

Pursuant to a hearing on this motion, the court ordered defendant 'in examining the jury and in making opening statements shall not make any reference to what a death certificate may show in this respect (blood alcohol level). But if Mr. Riley has independent evidence of 80 point 2 or whatever it may be, he's entitled to show it and I cannot restrict him from telling on opening statement in effect what he thinks the Defendant Norton's evidence is going to prove in this respect.'

At that time plaintiff's counsel called the court's attention to the provisions of Chapter 321B of the Code and made reference to certain requirements to be met before reference may be made in a trial to a blood alcohol sample taken from a dead person. At that time plaintiff did not press for a broader order.

The court then clarified its ruling, saying to defendant Norton's counsel: 'If you know in your mind that you have evidence which you believe to be admissible, independent of the death certificate that will establish that fact (blood alcohol level), you are free to make reference to the amount of alcoholic content in the blood of the deceased Ford.' The court, however, said it would keep the order open for amendment 'if by any chance counsel for plaintiff convinces me that my order should be broader, before such time as Mr. Riley does address the jury.'

Apparently Mr. Riley was of the opinion that the report of the county medical examiner, which is not the same as a death certificate, was admissible evidence in a civil case and, knowing that there was a notation on the back of the executed form pertaining to Lyle Ford's death, reciting among other things, 'Ford blood alcohol was 82.5 mg%', proceeded to refer to Ford's use of alcoholic beverages in voir dire examination and in his opening statement to the jury.

The court was not sure of appellees' conclusion as to the admissibility of this evidence, but indiciated much depended upon the proof submitted. When defendants' counsel sought to introduce testimony of the medical examiner and the county attorney and to introduce the 'Report of Investigation by Medical Examiner' executed by Dr. Harris, the vital issue of this controversy became evident, i.e., what, if any, matter appearing on such a report must be excluded on objection under the provisions of section 339.9?

II. Chapter 339 of the 1966 Code relates to the appointment, qualifications, jurisdiction, and duties of a county medical examiner. Section 339.4 provides he shall be notified of the death of a person who died 'a. From violence. * * * g. In a suspicious, unusual or unnatural manner.' Although no issue is raised herein as to whether the county medical examiner had jurisdiction of this matter where it clearly appeared the plaintiff died from injuries resulting from an automobile collision, the trial court had some doubts that it extends beyond a determination of the cause of death.

Section 339.5 makes it clear the examiner's duties are to inquire as to 'the cause and manner of death' and file his findings with the county attorney and the criminal investigation division of the public safety department. It would seem his investigation is directed toward evidence of a crime and is not the same as an accident report filed by an investigation officer with the public safety department under section 321.266 of the Code. Did this investigation or report disclose any evidence of a crime? We do not believe it did, although, as appellant concedes, this was not a natural death. Nevertheless, it is appellant's principal contention that, because of the statement of alcohol analysis on the back of the report, it could not be received in evidence, and that witnesses could not be interrogated as to this report until it was shown that the report contained no hearsay evidence barred by the provisions of section 339.9 of the Code.

Section 339.9 provides: 'Reports of investigations made by the county medical examiner or his assistants, and records and reports of autopsies made under the authority of this chapter, shall be received as evidence in any court or other proceedings, Except that statements by witnesses or other persons and Conclusions upon extraneous matters are not hereby made admissible. * * *' (Emphasis added.) It further provides that the person preparing a report or record may be subpoenaed as a witness in a civil case by any party to the cause. It does not attempt to pass on the admissibility of reports containing extraneous matters or define extraneous matters. Obviously, then, that admissibility is to be governed by other well-established rules of evidence which the court must apply when timely and proper objections are made.

The trial court recognized this rule when he advised counsel in chambers that 'before any results of a blood test analysis can be admitted in this case, * * * the party seeking to introduce such evidence must first lay a proper foundation.' It further suggested some of the foundation requirements the party seeking to introduce such evidence must meet. However, as we understand it, it did not limit the requirements to those enumerated. There may be others.

At this point we are faced with two questions of major importance to this decision: (1) Did appellees lay a proper foundation for the admission of evidence of blood alcohol tests, and (2) was a timely and proper objection made to the introduction of this evidence?

III. Before any result of a blood test analysis can be admitted in any civil or criminal case, the party seeking to introduce such evidence must first lay a proper foundation for its admission. Unless waived, this foundation must show that the specimen was taken by a duly-authorized person using proper sterile equipment, that it was properly labeled and pereserved, that its care and transportation were proper, and also the identity of persons processing it so as to give the opposing party the opportunity to cross-examine as to the care and procedure used in...