Perry v. City of Oklahoma City, 41937

• Decision Date: 07 April 1970
• Docket Number: No. 41937,41937
• Citation: 470 P.2d 974
• Parties: George PERRY, Plaintiff in Error, v. The CITY OF OKLAHOMA CITY, a Municipal Corporation, and Shell Construction Company, Inc., Defendants in Error.
• Court: Oklahoma Supreme Court

Page 974

470 P.2d 974

George PERRY, Plaintiff in Error, v. The CITY OF OKLAHOMA CITY, a Municipal Corporation, and Shell Construction Company, Inc., Defendants in Error.

No. 41937.

Supreme Court of Oklahoma.

April 7, 1970.

Rehearing Denied May 26, 1970.

Syllabus by the Court

The results of a blood-alcohol test derived from a sample of blood, when the identity and integrity of the sample are established, are not within the evidentiary exclusion of 63 O.S.1961, § 94., unless the blood-alcohol test was performed pursuant to 63 O.S.1961, §§ 931--955, the Unexplained Deaths Act.

Appeal from the District Court of Oklahoma County; Wm. L. Fogg, Trial Judge.

Plaintiff in the trial court appeals from a jury verdict rendered for the defendants in a personal injury action arising out of an automobile accident. Admission into evidence of a blood sample, challenged by plaintiff as error under the provisions of 63 O.S.1961, § 949 of the Unexplained Deaths Act, 63 O.S.1961, §§ 931--955, is held to be not error. Affirmed.

Richard D. Hampton, Oklahoma City, for plaintiff in error.

Roy H. Semtner, Municipal Counselor, Walter M. Powell, Asst. Municipal Counselor, for defendant in error Oklahoma City.

Gus Rinehart and David J. Morrison, Oklahoma City, for defendant in error Shell Construction Co., Inc.

Oklahoma Trial Lawyers Ass'n, amicus curiae.

McINERNEY, Justice.

George Perry, as plaintiff, instituted an action against the City of Oklahoma City and the Shell Construction Company, Inc., to recover damages for personal injuries suffered by the plaintiff, a passenger in a car which collided with a concrete signal light abutment at approximately midnight in a street intersection. Griffith, the driver of the car, was fatally injured. The petition alleged negligence on the part of the defendants, singly and jointly, with respect to constructing, maintaining, and safe-guarding the abutment and the condition of the intersection in order to protect the traveling public. This negligence, it was alleged, was the proximate cause of the collision and of plaintiff's injuries for which he seeks recovery.

The defendants alleged that the driver, Griffith, was negligent at the time of the accident in several specified particulars, all of which were observed by and known to the plaintiff, who took no action to prevent or to correct them or to take steps for his own safety; that the accident, and any injuries suffered by plaintiff, directly and proximately resulted from the negligent acts of the driver, and that the defendants, respectively, were not 'guilty of any act of carelessness or negligence that caused or contributed' to the occurrence of the accident. Replies specifically denied the defensive allegation of the answers. Upon the issues thus joined, the matter proceeded to trial. The jury, acting under instructions not criticized upon appeal, returned a verdict for the defendants, upon which the trial court entered judgment. The plaintiff presented several assignments of error, but argued them under three propositions:

(1) Error in admitting evidence of the result of an analysis of blood purporting to be that of Griffith, the driver of the car in which plaintiff was a passenger;

(2) error in allowing improper cross-examination of plaintiff's witness by defendants over plaintiff's objection;

(3) error in excluding evidence of other and similar accidents at the place of this accident.

Plaintiff, in support of his allegation of error in admitting evidence of an analysis of blood taken from Griffith, the deceased driver of the car in which he was riding, argues that Title 63 O.S.1961, §§ 931--955, the Unexplained Deaths Act, precludes the admission of such evidence. The record wholly fails to show that the blood test was pursuant to the provisions of this Act. We said in In re Barger, Okl., 450 P.2d 503, 505 (1969) that it such evidence was inadmissible, it was incumbent upon the party objecting to the evidence of a blood test to support the inadmissibility of the evidence by a proper showing. Plaintiff in this case completely failed to fulfill this duty.

The specific provision on which plaintiff relies provides that 'No report, findings, testimony or other information of the State or County Medical Examiner or their assistants shall ever be admitted in evidence in any civil action * * *.' § 949. These reports, finding, etc., necessarily must be the result of official action taken under the direction of either the State Medical Examiner, a County Medical Examiner, or one of their appointed assistants. These are the only persons authorized by the Act to launch an investigation of an unexplained death, §§ 941 and 943. The record contains not a scintilla of evidence that a medical examiner or his assistant ever commenced an investigation in connection with the death of Griffith.

The record does show that Griffith was killed in the accident in which plaintiff was injured, but it fails to show who made the death certificate, although the Act requires, in case of an investigation under its authority, that only the 'State Medical Examiner or his designated deputy, or the county examiner or his deputy, whoever shall have conducted the investigation' shall make the certificate of death, § 947. Furthermore, the record shows that Dr. H, who withdrew the blood sample from the deceased driver, 'was the orthopedic surgeon on call that day' at the hospital to which the driver was taken, but the record does not show that he was an examiner authorized by the Act to conduct an investigation. In the absence of evidence establishing this fact, it must be taken that Dr. H was acting simply in his capacity as 'the orthopedic surgeon on call that day.' Also, the record shows that the chemist, Sarchet, was directed to make the blood analysis by a regular duty police officer. Such an officer is not included in the list of those persons whom the Act authorizes to initiate or to conduct an investigation under the Unexplained Deaths Act, §§ 941 and 943.

The record further shows that Sarchet made the blood analysis in his capacity as chemist for the State Health Department. He testified that the laboratory wherein he works is jointly maintained by the State Health Department And the Board of Unexplained Deaths, not, as contended by plaintiff, that he is employed by the State Health Department in the Board of Unexplained Deaths Laboratory and Information Center. Such joint maintenance, or 'collaboration', is authorized expressly, but not commanded, by § 936 of the Act. This provision is intended to promote economy in the administration of an activity which, in less populous states, may not demand the full-time service of a laboratory; it is not intended to merge two separate governmental agencies. See Official Comment to its source, Section 7 of Model Post Mortem Examinations Act, in 1954 Handbook, National Conference of Commissioners on Uniform State Laws, p. 200. It follows that the employees therein are the employees of both organizations. Sarchet expressly testified that he occupies such a position of dual employment. The work in the laboratory may be either that of the Health Department or that of the Board of Unexplained Deaths. The legal characterization of Sarchet's acts depends upon whose work he does at the moment. Spartan Aircraft Co. v. Jamison, 181 Okl. 645, 75 P.2d 1096 (1938).

The record here shows that Officer McKittrick, acting as representative of the Oklahoma City Police Department, sought the services of the State Health Department, not those of the Board of Unexplained Deaths. Sarchet's gratuitous assumptions could not change this fact. Also, as shown above, Sarchet has no authority under the Act to institute an inquiry. Only a medical examiner could do this. Since the record contains no evidence whatsoever of any action by a medical examiner or a deputy medical examiner, it must be taken that Sarchet was acting simply as a chemist in the State Health Department Laboratory in response to a police officer's request for an analysis, not as a chemist under the Board of Unexplained Deaths in aid of an investigation not shown ever to have been launched.

The record in this case contains no evidence that the State or County Medical Examiners or their assistants or deputies were the procuring source of the blood test. And we find nothing in the statutes, and no statute has been cited to us, that precludes a laboratory technician of the State Health Department, such as Sarchet, from being a witness in a civil action in any court of this state and testifying as to findings made pursuant to his employment by that Department. Under the circumstances presented here, the result of the analysis of the blood of Griffith and of Sarchet's testimony concerning it were properly admitted.

We come now to the question involving the admission in evidence of the blood sample taken from the body of the deceased driver, Griffith. There was evidence by Officer McKittrick that he discovered a strong odor of '* * * some alcoholic beverage' in the wrecked vehicle and that interrogation of the surviving occupants of the death car at the hospital indicated that the three occupants had previously consumed some beer. Plaintiff had stated that 'they all,' including Griffith, the driver, had been drinking. Obviously, then, the blood test, which did show an alcoholic content of 0.22 by weight, bore significantly upon the defendant's contentions that Griffith was sufficiently intoxicated to be incapable of driving properly, and did in fact drive improperly thereby causing the accident and plaintiff's injuries, and that plaintiff had knowledge of this improper driving and failed to take steps essential to prevent the accident. In view of testimony of Nichols, also a passenger, that nobody in the group had been drinking, it was significant on issues of credibility.

Our prior decisions establish the general propriety of admitting the results of tests of blood...