McGowan v. City of Los Angeles

• Court: California Court of Appeals
• Writing for the Court: VALLEE; SHINN, P. J., and WOOD
• Citation: 223 P.2d 862,100 Cal.App.2d 386,21 A.L.R.2d 1206
• Parties: , 21 A.L.R.2d 1206 McGOWAN v. CITY OF LOS ANGELES. McFADDEN v. CITY OF LOS ANGELES. ESTATE v. CITY OF LOS ANGELES. Civ. 17593 to 17595.
• Decision Date: 13 November 1950

Page 862

223 P.2d 862 100 Cal.App.2d 386, 21 A.L.R.2d 1206 McGOWAN
v.
CITY OF LOS ANGELES.
McFADDEN
v.
CITY OF LOS ANGELES.
ESTATE
v.
CITY OF LOS ANGELES. Civ. 17593 to 17595. District Court of Appeal, Second District, Division 3, California. Nov. 13, 1950.
Rehearing Denied Dec. 12, 1950.
Hearing Denied Jan. 11, 1951.

Page 863

[100 Cal.App.2d 387] Ray L. Chesebro, City Attorney, Bourke Jones, Assistant City Attorney, Edwin F. Shinn, Deputy City Attorney, Los Angeles, for appellant.

Raoul D. Magana, Los Angeles, for respondents.

VALLEE, Justice.

These are three appeals by defendant from judgments for plaintiffs. The McGowan and Estes actions are for damages for personal injuries. The McFadden action is for damages for wrongful death. The actions were tried together. We state the facts in the light most favorable to plaintiffs-respondents.

[100 Cal.App.2d 388] On July 27, 1947, plaintiffs, McGowan and Estes and Cleven McFadden, Jr., deceased son of plaintiff Cleven McFadden, together with Wirth Tyree and John Anderson, were passengers in an automobile driven by Charles Cox. The accident occurred in the intersection of Colorado Street and Lincoln Boulevard in Santa Monica. Cox and McFadden were killed instantly. The other four passengers were injured.

Colorado Street, 54 feet wide, runs east and west. Lincoln Boulevard, 60 feet wide, runs north and south. They intersect at right angles. Traffic at the intersection is controlled by a flasher signal which blinks red for Colorado Street traffic and yellow for Lincoln Boulevard traffic. Cox was driving east on Colorado Street. He was required to bring his car to a complete stop before entering the intersection. Vehicle Code, sec. 477(1). The police car was being driven north on Lincoln Boulevard. It was not on an emergency trip and had no red light. It could only proceed past the signal and through the intersection 'with caution.' Vehicle Code, sec. 477(2).

Cox brought his car to a complete stop at the intersection. He waited four or five seconds for a large northbound transport truck to pass in front of him and then started into the intersection. In the southeast quarter of the intersection the front end of the police car, traveling between 45 and 60 miles an hour, without sounding a siren, struck the right side of the Cox car. The police car hurled the Cox car some 60 feet, knocked down a steel street sign, turned over on its side, sheared off a fire hydrant, and uprooted a thick heavy bush. As it was traveling to Colorado Street, the police car had gone through four or five intersections controlled by similar traffic signals at a speed between 45 and 60 miles an hour.

At the trial defendant claimed that Cox was intoxicated at the time of the accident. A toxicologist, employed in the county coroner's office in charge of the examination of blood of deceased persons and the records thereof, testified that a paper entitled 'Blood alcohol determination' was made, and the blood referred to was received and analyzed, by his department in the regular course of business. He also testified that the death of only one Charles Cox was

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recorded on July 27, 1947; the record indicated that the blood that was examined came from Mashmeyer's Mortuary in an 8-ounce 'blood jar'; the coroner's office supplies 8-ounce blood bottles to mortuaries; the bottle was labeled 'Charles Cox, 7-27-47, 4:15 A. M., Boggs & Mashmeyer's Wilshire Funeral Home. [100 Cal.App.2d 389] Krieger. Mashmeyer. Alcohol.'; and the analysis is noted on the paper. An assistant toxicologist employed in the county coronor's office testified that she received the bottle and on July 29, 1947, examined the blood and prepared the paper 'Blood alcohol determination.' Defendant offered the paper in evidence. Plaintiffs' objection thereto was sustained on the ground there was no proof that the blood came from the body of Charles Cox, the driver of the car. Defendant then offered to prove that a concentration of .16% alcohol in the blood of any person is intoxicating. Plaintiffs' objection to the offer was sustained.

Defendant contends that the court erred in refusing to admit the paper 'Blood alcohol determination' in evidence. Reliance is placed on sections 1920 and 1953f of the Code of Civil Procedure. We assume, although neither the paper which was marked for identification nor the bottle which was not offered is before us, that the paper states the analysis showed a concentration of .16% alcohol in the contents of the bottle.

Section 1920 reads: 'Entries in public or other official books or records, made in the performance of his duty by a public officer of this state, or by another person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts stated therein.' If it had been proved that the blood analyzed by the county coroner's office had been taken from the body of Cox before any extraneous matter had been injected into his body, the coroner's record of the analysis would have been admissible and prima facie evidence of the facts therein stated.

In People v. Smith, 55 Cal.App. 324, 203 P. 816, 817, the county autopsy surgeon was permitted to answer the question, 'I will ask you whether you performed an autopsy upon the body of Mary Edla Smith?' He answered that he had, and testified that the undertaker had told him it was the body of Mrs. Smith; that he delivered the stomach to a toxicologist employed by the county coroner's office. The toxicologist testified that the stomach contained potassium cyanide. There was no evidence that the body was in fact that of Mary Edla Smith. The court held, 55 Cal.App. at pages 330-331, 203 P. at page 818: '[T]he identification of the stomach concerning which Dr. Wagner and Professor Mass were allowed to testify must be held to be incomplete, and the evidence as to its contents must be held to have been erroneously admitted. * * * the testimony of Dr. [100 Cal.App.2d 390] Wagner that it was Mrs. Smith's body from which he took the stomach is based on rank hearsay, and clearly was inadmissible.' Manifestly if the testimony of the toxicologist who made the analysis of the stomach was not admissible, the record of the analysis of blood in the present case without tracing the blood to the body of Cox was not admissible.

In American Mut. Liability Inc. Co. v. Industrial Accident Comm., 78 Cal.App.2d 493, at page 495, 178 P.2d 40, at page 41, where the defense was that the deceased, Frank Wilson, was intoxicated, the facts are stated in the opinion: 'On the day following the accident one Leon Happel, who at the time was employed to make chemical analyses for the peace officers of San Joaquin County, received a bottle containing some fluid purporting to be blood. He stated that he received the bottle and contents from the Highway Patrol. The bottle bore a label, 'Tuesday, 8/14/45, Frank Wilson, San Joaquin County Hospital.' The contents of the bottle were subjected by Happel to a chemical test, which showed the fluid to contain 3.2 milligrams of alcohol per cubic centimeter. Dr. Jesse L. Carr, a pathologist, testified that 3.2 milligrams of alcohol per cubic centimeter in the blood of an individual would indicate inebriation, and a staggering and toxic condition. Happel did not know Wilson, and as far as he knew he had never seen him.' The court held, 78 Cal.App.2d at pages 496-497, 178 P.2d at page 41: 'Outside of the two empty beer bottles found in Wilson's

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car, the petitioner's case rests entirely upon the analysis of the blood sample made by the chemist, Happel, and the opinion of Dr. Carr based on this analysis. It may be assumed that...