McGowan v. City of Los Angeles

• Decision Date: 13 November 1950
• Citation: 223 P.2d 862,100 Cal.App.2d 386,21 A.L.R.2d 1206
• Court: California Court of Appeals Court of Appeals
• 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.

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.

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.

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 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. 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. 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 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 the fluid analyzed by Happel was blood, although there is no evidence to show from what manner of body it came, nor when. But, assuming that it was, there is a complete lack of identification of it as the blood of Wilson. The only indication that it might be Wilson's blood is a label with his name on it put on the bottle by somebody, but no one knows who. Even assuming it to be Wilson's blood, there is no showing that it was in the same condition when Happel received it as it was when the sample was taken, nor that Wilson had not taken, or been administered as a measure of first aid, a strong alcoholic stimulant after the accident. The whole matter is one of assumption and pure speculation. It is rudimentary that a specimen taken from a human body for the purpose of analysis must be identified before such specimen or any analysis made from it attains standing as evidence of the condition of the person whose conduct is questioned. Without identification, there is no connection between the two. Reason dictates that the testimony of a witness that a blood sample contains alcohol without some evidence to show that the blood is that of the person charged amounts to no proof at all. * * * The failure to identify the sample as the blood of Wilson renders the testimony of Happel and Dr. Carr of no evidentiary value at all.'

Mr. Wigmore says, pp. 530-531: 'Where the officer's statement is concerned with a transaction done, not by him or before him, but out of his presence (and out of the presence of his subordinates), the case is one in which obviously he can have no personal knowledge; the assumption must therefore be that his statement is inadmissible. It is to be noted, however, that the sufficient explanation is usually that the officer's duty does not extend to transactions out of his presence, and thus the recording or certifying of them is not covered by his official duty. * * * Thus, for matters not occurring in the presence of the officer, his record or certificate is inadmissible, not only because in general a witness must have personal knowledge, but also because an officer's cuty is usually concerned only with matters done by or before him.' V Wigmore on Evid., 3d Ed., 530, sec. 1635(3). ¹ See also Ogilvie v. AEtna Life Insurance Co., 189 Cal. 406, 409, 209 P. 26; Sandel v. State, 126 S.C. 1, 119 S.E. 776, 779; Unger v. Grimsley, 138 Miss. 591, 103 So. 341, 342.

Section 1953f...