Mason v. Lovins, Docket No. 7068

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: LEVIN
• Citation: 180 N.W.2d 73,24 Mich.App. 101
• Decision Date: 27 May 1970
• Docket Number: Docket No. 7068,No. 3
• Parties: Lyle MASON, Administrator of the Estate of John C. Carpenter, Deceased, and Guardian of the Estate of Gwendolyn Carpenter, a minor, and Guardian of the Estate of Corinna Sue Carpenter, a minor, Plaintiff-Appellee, v. Bobbie LOVINS, De-Jo Tavern, Inc., et al., Defendants-Appellants

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180 N.W.2d 73 24 Mich.App. 101 Lyle MASON, Administrator of the Estate of John C.
Carpenter, Deceased, and Guardian of the Estate of Gwendolyn
Carpenter, a minor, and Guardian of the Estate of Corinna
Sue Carpenter, a minor, Plaintiff-Appellee,
v.
Bobbie LOVINS, De-Jo Tavern, Inc., et al., Defendants-Appellants. Docket No. 7068. Court of Appeals of Michigan, Division No. 3. May 27, 1970.
Rehearing Denied July 20, 1970.
Released for Publication Oct. 7, 1970.

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Raymond R. [24 Mich.App. 104] Kail, Grand Rapids (Brown, Colman & Dement, Kalamazoo, of counsel), Thomas D. Carey, Kalamazoo, Wilcox & Robison, Albion, for defendant-appellants.

Grant J. Gruel and Sherman H. Cone, Cholette, Perkins & Buchanan, Grand Rapids, for plaintiff-appellee.

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Before R. B. BURNS, P.J., and FITZGERALD and LEVIN, JJ.

[24 Mich.App. 105] LEVIN, Judge.

John C. Carpenter was killed when his motorcycle was struck by an automobile driven by Bobbie Lovins.

Plaintiff commenced this action,

(1) as administrator of Carpenter's estate, against Lovins for wrongful death, and

(2) as guardian of Carpenter's wife and child, under the dramshop act ¹ against two taverns, Joe's Tavern and De-Jo Tavern, Inc., and their sureties.

Plaintiff settled the wrongful death action against Lovins for $9,500 and the dramshop act action against De-Jo Tavern, Inc. for $5,000. The jury returned a verdict against Joe's Tavern of $47,500 for the widow and of $27,500 for the child. These verdicts were reduced $1,500 each by agreement of counsel because a judgment for $3,000 was being entered against the surety. Post-trial motions for judgment notwithstanding the verdict and a new trial were denied, but the judge ordered a Remittitur; a judgment was entered for $44,000 in favor of the widow and $20,000 in favor of the child, and $3,000 against the surety.

Joe's Tavern appeals, claiming:

(a) evidence of a urinalysis should not have been admitted because the specimen was not properly traced and identified;

(b) there was insufficient evidence that it sold intoxicating beverages to Lovins while he was intoxicated;

(c) the judge erred when he communicated with the jury after it had retired to begin its deliberations without the knowledge or presence of counsel for the parties;

[24 Mich.App. 106] (d) during his closing jury argument the plaintiff's attorney repeatedly suggested, without any supporting evidence in the record, that Lovins returned to Joe's Tavern between the time, many hours before the accident, he and othres said he left it and the time of the accident;

(e) while the trial judge informed the jury of the $5,000 settlement with De-Jo's Tavern, Inc., he erred in refusing to advise it of the $9,500 settlement of the wrongful death action; and

(f) the verdict was contrary to the great weight of the evidence and a new trial should have been granted.

We affirm.

In an action under the dramshop act, the plaintiff has the burden of proving that the defendant tavern sold intoxicating beverages to a person who, at the time of sale, was already intoxicated, and that there is a causal connection between the unlawful sale and the injuries for which the plaintiff seeks to recover. ²

The fatal accident occurred some time between 10 and 10:30 on the night of July 2, 1964. Lovins brgan to drink ten or eleven hours earlir. He was a construction worker. Because of bad weather he and other workes left a job site and arrived at Joe's Tavern some time between 11:00 a.m. and 12:00 noon. They had lunch and each had three or more beers. ³ [24 Mich.App. 107]

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The men left the tavern some time between 2:00 and 3:00 p.m., cleaned up the site and went home.

The foreman testified that Lovins did not appear intoxicated and had the weather permitted he would have allowed him to continue to work on scaffolding which was 40 feet above the ground. Lovins' luncheon companions testified that Lovins and they left the tavern around 2:00 o'clock and that Lovins did not appear to be drunk.

Lovins testified that after he left the job site he purchased a six-pack of beer at a grocery store, put it unopened in the trunk of his car and that he then drove to his uncle's home which is located 30 to 45 minutes traveling time from the job site.

Lovins' uncle testified that Lovins arrived some time between 3:30 and 4:30 p.m. and that he was so deeply intoxicated he fell to the floor, and that, although he had nothing to drink at the uncle's house, an hour later the uncle and a neighbor had difficulty assisting him into an automobile and that, because of his condition, the uncle drove him home.

Lovin said he did not return to Joe's Tavern after he left it and that he did not have anything to drink between the time he left the tavern and the time he arrived at his uncle's home. At the trial he had no recollection of having had anything to drink on the day of the accident other than at Joe's Tavern, but conceded the truth ⁴ of his earlier pretrial deposition testimony that he drank one beer at his uncle's house and three beers after he arrived at his own home and one beer at his father-in-law's home later on in the evening and might have drunk some beer at the De-Jo Tavern shortly before the accident.

Police officer Bullock testified that he had an independent recollection of the accident, but that he [24 Mich.App. 108] was somewhat dependent on an accident report which he and another officer prepared to refresh his recollection of what he did following his arrival at the scene of the accident. He said that Lovins was intoxicated at the time of the accident; another police officer who was at the scene also testified that Lovins was intoxicated at that time.

While at several points during his testimony Bullock said that he had an independent recollection of taking a urine specimen from Lovins, at other times he said he had no independent recollection of taking the specimen and that in testifying that he had taken such a specimen from Lovins he was relying on the written report and his Modus operandi in such cases. His attention was then directed to the fact that the accident report, while mentioning that a breathalyzer test had been taken, did not say anything about a urine specimen. Bullock acknowledged this to be true, but said that in all suspected drunk cases it was his invariable procedure to take a urine specimen as well as a breathalyzer test and on that basis he was sure he had done so in this case.

Lovins recalled voiding urine into a glass jar. Bullock testified that such a specimen jar would be tagged, he would sign the tag and place it in a locked cabinet which no one other than the laboratory technician could open, and he was sure he followed these procedures in this case.

The laboratory technician testified that he removed from the locked cabinet a urine specimen tagged 'Bobbie Lovins,' bearing Bullock's name and a date which he originally interpreted as July 7, 1964 but which he subsequently reinterpreted as July 2, 1964, and that, upon analysis, the specimen

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showed a blood alcohol content of 0.24%. ⁵

[24 Mich.App. 109] Both the laboratory technician and a toxocologist stated that a person with 0.24% Blood alcohol would be extremely drunk. The toxicologist added that considering the food consumed by Lovins at Joe's Tavern he would have had to have drunk in excess of ten beers to have become so inebriated that he could not stand up at 4:30. ⁶ And that, while it would have been difficult to drink as many as ten beers in two hours' time, in four hours' time some men could do so.

We think that the taking and transmission to the laboratory technician of the urine specimen was adequately established. Lovins testified that he gave such a specimen and, while Bullock had no independent recollection of taking it, his testimony that he invariably took a urine specimen adequately supports his statement that he did so in this case.

Bullock testified that the accident report refreshed his recollection and that he indepenently recalled two groups of facts. ⁷ Firstly, that there was an accident, that he found Lovins at the scene and he was intoxicated, and that he, Bullock, dealt with Lovins in accordance with the procedures he consistently followed in dealing with suspected drunk-driving cases. Secondly, that the procedure he always followed in such a case included the taking of a urine specimen and tagging and placing it in the laboratory technician's locker. The silence of the accident report regarding a urine specimen or urinalysis tends to support Bullock's claim that he [24 Mich.App. 110] independently recalled his asserted habit of invariably taking such a specimen.

There are many tasks that are performed routinely, and while, as held in Bauer v. Veith (1964), 374 Mich. 1, 3, 130 N.W.2d 897, it may not be presumed that because an official is obliged to take a specimen that he in fact did so, ⁸ where, as here, the witness testifies that he always follows a particular procedure, he may on that basis testify that he did so in the case at hand. We stress that Bullock testified as to the standard procedures which he followed, not merely the procedures generally followed in his department.

Any other rule would make it difficult, if not impossible, in many cased to prove that what is routinely done has been done in a particular case. It is understandable that where a task has been performed on countless occasions the actor cannot recall doing it on a specific occasion.

In Interstate Life & Accident Insurance Co. v. Whitlock (1965), 112 Ga.App. 212, 144 S.E.2d 532, in response to the objection that since the witness couldn't 'remember the disposition of this Particular sample, the testimony as to what he routinley does is inadmissible,' (Emphasis by the Court)

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the Court of Appeals of Georgia responded (p. 220, 144 S.E.2d p. 537):

'Although the Medical Examiner was unable to recall the disposition of the specific sample in...