Orr v. Econo-Car of Indianapolis, Inc., ECONO-CAR

• Decision Date: 27 December 1971
• Docket Number: No. 370A46,No. 2,ECONO-CAR,370A46,2
• Citation: 150 Ind.App. 411,276 N.E.2d 524
• Parties: Richard M. ORR, Administrator of the Estate of William D. Wilcher, Deceased, Appellant, v.OF INDIANAPOLIS, INC., Appellee. Richard M. ORR, Administrator of the Estate of John W. Alexander, Deceased, Appellant, v.OF INDIANAPOLIS, INC., Appellee
• Court: Indiana Appellate Court

Page 524

276 N.E.2d 524

150 Ind.App. 411

Richard M. ORR, Administrator of the Estate of William D.

Wilcher, Deceased, Appellant, v. ECONO-CAR OF INDIANAPOLIS, INC., Appellee.

Richard M. ORR, Administrator of the Estate of John W.

Alexander, Deceased, Appellant, v. ECONO-CAR OF INDIANAPOLIS, INC., Appellee.

No. 370A46.

Appellate Court of Indiana, Division No. 2.

Dec. 27, 1971.

Roberts & Church, Gary D. Beerbower and Douglas D. Church, Noblesville, for appellants.

Ice, Miller, Donadio & Ryan, Evan Steger, Indianapolis, for appellee.

SHARP, Judge.

This case was initiated as two separate actions for wrongful death brought by the personal representative of the Estates of William D. Wilcher and John W. Alexander, respectively. Both cases were originally filed in Marion County, Indiana and later venued to Hamilton County, Indiana. Both cases were consolidated for trial and have been consolidated for purposes of this appeal. In each case, the amended complaint was in three legal paragraphs based respectively on negligence, implied warranty and strict liability and were submitted to the jury on each. The cases were tried for a period of nine days in which 15 witnesses were heard. The record discloses approximately 1250 pages of transcribed testimony. The jury returned a verdict on behalf of the Appellee and against the Appellants in both cases.

The Appellants have asserted here alleged errors of law which occurred during the trial of the case in regard to the admission over objection into the evidence of the results of tests performed by the Indiana State Police Laboratory as to the amount of alcohol present in the blood specimens taken from the decedents. We are here primarily concerned with a relatively small part of the total evidence introduced which covers approximately 79 pages of the total record of proceedings.

In general, the decedents, Wilcher and Alexander, were fatally injured while occupying and operating an automobile rented from the Appellee when a tire blew out on May 6, 1965 on Indiana Highway No. 37 approximately 10--12 miles south of Bloomington, Indiana. The decedents' southbound vehicle ascended a grade with a slight curve to the east or left, and as it reached the section of the level highway before going down a hill to the south, the decedents' vehicle went out of control and left the pavement to the right and returend to the pavement and crossed the center line where it collided head-on with another vehicle. There was evidence of speed from 75 to 85 miles per hour just before the incident occurred. There was testimony from one eyewitness that he heard a whistling sound and a pop just before the decedents' vehicle went out of control. The decedents were the only occupants of the vehicle at the time of the collision and both of them were apparently killed instantly. The matters of which the Appellants complain and assert error in this court concern the admission of the results of tests which were performed to determine the alcoholic content of the blood of both decedents at the time of their death. This evidence was introduced on behalf of the Defendant-Appellee through the deposition of testimony of Dr. Anthony Pizzo and Officer Wayne Lockhart of the Indiana State Police. Dr. Pizzo was a physician who specialized in the filed of pathology and testified that in May of 1965, he was coroner of Monroe County, Indiana. As such, he was called to the scene of the accident in which the decedents were involved by the Sheriff of Monroe County. He testified that he arrived at the scene of the accident, examined the bodies of both decedents and pronounced them dead at the scene. He further testified that he personally identified the bodies of each decedent from identification papers on their person and also made notes as to their physical descriptions. Dr. Pizzo then testified that the bodies were removed to a mortuary in Bloomington, Indiana and that he personally proceeded to the mortuary for further examination of the bodies to determine, among other things, the cause of death and to draw a specimen of blood to be tested for alcoholic content. With reference to the decedent, Wilcher, Dr. Pizzo testified tht at approximately 9:45 o'clock P.M. on the date of the accident he withdrew the required amount of blood from the body of such decedent. He then placed the blood specimen in a container or vial and then placed this container in an envelope on which the decedent's name, as well as other information, had been inscribed under his supervision and direction. This sealed envelope containing the blood specimen of the decedent, Wilcher, was then placed in a mailing container and mailed to the Indiana State Police Laboratory in Indianapolis, Indiana. Dr. Pizzo identified what had been marked as an exhibit as the envelope in which he placed the specimen taken from the decedent, Wilcher, which envelope had been sealed and transmitted to the Indiana State Police Laboratory. A photocopy of exhibit was introduced into evidence at the trial.

Dr. Pizzo also testified that the same procedure was followed with reference to the specimen of blood drawn from the body of the decedent, Alexander. Likewise, an exhibit was introduced into evidence, identified as a copy of the envelope in which he placed the specimen of blood taken from the body of the decedent, Alexander, sealed the same and placed the same in a mailing container and sent it to the Indiana State Police Laboratory. On cross-examination, Dr. Pizzo testified that he did not specifically recall whether he mailed the packages or whether he handed them to another State Police officer, Officer Cooper, who was present in the room at the time, to be mailed. He did testify that the exhibit showing the identification of the blood samples were filled out in his presence at the mortuary and at his request and direction.

The deposition of Officer Wayne Lockhart was also read into evidence, it having been established that he would be out of state at the time of the trial. Officer Lockhart testified that in May of 1965, he had been an officer with the Indiana State Police for 20 years and was assigned to the Indiana State Police Laboratory in Indianapolis. His duty included the analysis of blood samples for the presence of alcohol and prior to May, 1965, he had analysed over 800 such specimens. During his testimony, Mr. Lockhart was handed the two exhibits above referred to which purported to be copies of the envelopes in which Dr. Pizzo testified he placed the blood specimens taken from the decedents. Officer Lockhart testified that these exhibits were a photocopy and were a true and accurate representation of the envelopes which he received by United States Mail in the Indiana State Police Laboratory at Indianapolis, Indiana on May 10, 1965. The evidence discloses that these samples were mailed in Bloomington, Indiana late in the day on Thursday, May 6, 1965, and Officer Lockhart testified that he received the same in his mail in Indianapolis on Monday, May 10, 1965. He further testified that the envelopes in question came in a mailing tube and were sealed upon receipt in the laboratory. He testified that inside the sealed envelope was a glass bottle containing blood. In each case, he testified that the blood samples were identified by inscription showing the name and other identifying information of each decedent. Officer Lockhart testified that he performed a chemical analysis on the specimens of blood from the two envelopes. After describing the method by which the chemical analysis was done, Officer Lockhart testified that the blood specimen of the decedent Wilcher contained .14% alcohol by weight and the blood specimen of the decedent Alexander contained .28% alcohol by weight. He further testified that the method for performing the chemical analysis used in these instances constituted the ordinary practice used by the Indiana State Police Laboratory.

On this subject, the trial court gave to the jury, two instructions. The first was:

'Evidence has been introduced in this cause as to the results of the chemical analysis as to the amount of alcohol in the blood of both decedents. You are instructed that at all times relevant, there was in full force and effect a statute in the State of Indiana concerning the amount of alcohol in a preson's blood sufficient to affect his driving ability, which said statute, in its relevant portions is as follows:

'Evidence that there was, at that time five hundredths per cent (.05%) or less, by weight of alcohol in his blood, is prima facie evidence that the defendant was not under the influence of intoxicating liquor sufficiently to lessen his driving ability within the meaning of the statutory definitions of the offenses. Evidence that there was, at the time, from five hundredths per cent (.05%) to fifteen hundredths per cent (.15%) by weight of alcohol in his blood is relevant but it is not to be given prima facie effect in indicating whether or not the defendant was under the influence of intoxicating liquor within the meaning of this act. Evidence that there was, at the time, fifteen hundredths per cent (.15%) or more, by weight of alcohol in his blood, is prima facie evidence that the defendant was under the influnce of intoxicating liquor sufficient to lessen his driving ability."

The second instruction stated:

'You have been previously instructed relative to the chemical analysis as to the amount of alcohol in the blood of both decedents. This particular instruction is applicable only to the driver of the motor vehicle and you should apply it only to the person that you find was the actual driver of the subject motor vehicle. This instruction has no relevancy to the passenger of the motor vehicle as given.'

The court also instructed the jury that contributory negligence was not a defense to an action based upon strict liability and that any negligence of the driver could not be imputed to the passenger.

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