Robinson v. Life & Cas. Ins. Co. of Tenn., 242

• Decision Date: 22 November 1961
• Docket Number: No. 242,242
• Citation: 255 N.C. 669,122 S.E.2d 801
• Court: North Carolina Supreme Court
• Parties: Beverly Ann ROBINSON, by her next friend, Betty Robinson, v. LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE.

Page 801

122 S.E.2d 801

255 N.C. 669

Beverly Ann ROBINSON, by her next friend, Betty Robinson, v. LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE.

No. 242

Supreme Court of North Carolina.

Nov. 22, 1961

W. B. Nivens, Charlotte, for plaintiff appellee.

Dockery, Ruff, Perry, Bond & Cobb, Charlotte, for defendant appellant.

DENNY, Justice.

The defendant's first assignment of error is based on its exception to the refusal of the court in the trial below to allow the defendant to introduce in evidence the paper identified by Dr. Summerville as a copy of his report as Coroner filed with the Clerk of the Superior Court of Mecklenburg County.

It is well settled in this jurisdiction that the effect of alcohol in the blood stream as shown by proper chemical tests is competent evidence on the question of intoxication. Osborne v. Colonial Ice Co., 249 N.C. 387, 106 S.E.2d 573; State v. Moore, 245 N.C. 158, 95 S.E.2d 548; State v. Willard, 241 N.C. 259, 84 S.E.2d 899. See also Anno.---Intoxication---Scientific Tests, 159 A.L.R. 209, et seq.; Anno.---Evidence---Specimen From Human Body, 21 A.L.R.2d 1219, et seq.

However, as to whether or not a blood alcohol test is admissible depends upon a showing of compliance with conditions as to relevancy in point of time, tracing and identification of specimen, accuracy of analysis, and qualification of the witness as an expert in the field. In other words, a foundation must be laid before this type of evidence is admissible. State v. Willard, supra. Moreover, it should be made to appear that the blood was taken from the body of the deceased before any extraneous matter had been injected into it. McGowan v. City of Los Angeles, 100 Cal.App. 2d 386, 223 P.2d 862, 21 A.L.R.2d 1206.

The evidence introduced at the trial below does not show how long after the death of the insured the blood was taken from the body or who took the blood from the body, and, if actually taken from the body of William F. Ardrey, whether it was taken before or after any extraneous substance had been injected into the body.

McCormick on the Law of Evidence, section 176, page 377, in discussing chemical tests to determine the degree of intoxication, says: 'The party offering the results of any of these chemical tests must first lay a foundation by producing expert witnesses who will explain the way in which the test is conducted, attest its scientific reliability, and vouch for its correct administration in the particular case.'

In McGowan v. City of Los Angeles, supra , the Court considered the identical question now before us. Section 1920 of the Code of Civil Procedure of California 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 facts stated therein.' In light of the provisions of this statute, the Court said: '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.' The Court quoted with approval from Wigmore on Evidence, pp. 530, 531, as follows: "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...