State v. Anderson

• Decision Date: 15 June 1956
• Docket Number: No. 36731,36731
• Citation: 78 N.W.2d 320,247 Minn. 469
• Parties: STATE of Minnesota, Respondent, v. James R. ANDERSON, Appellant.
• Court: Minnesota Supreme Court

Page 320

78 N.W.2d 320

247 Minn. 469

STATE of Minnesota, Respondent, v. James R. ANDERSON, Appellant.

No. 36731.

Supreme Court of Minnesota.

June 15, 1956.

Syllabus by the Court.

1. Where evidence is such that jury might find that defendant while intoxicated drove automobile involved in fatal accident negligence of decedent passenger in permitting defendant to drive while he was intoxicated could not be held to be superseding intervening cause of accident absolving defendant from responsibility for his own negligent operation of car in violation of M.S.A. § 169.11.

2. Reckless driving means that conscious and intentional driving which a driver knows or should know creates an unreasonable risk of harm to others, even though he have no actual intent to harm them. Gross negligence is the heedless and palpable, though not intentional, violation of a legal duty respecting the rights of others. Driving a much-traveled highway while intoxicated may constitute gross negligence creating criminal responsibility.

3. Whether a communication is privileged under § 595.02(2, 4) is a question of fact. Where party litigant claims privilege thereunder, the burden rests upon him to present facts to establish it. Where evidence did not establish that communications made by defendant to nurse and to representative of insurance company were intended to be privileged, trial court did not err in receiving testimony relative to them.

4. Where jury returned after 17 hours deliberation, and court then asked it how it was numerically divided with respect to verdict, and after being advised therein and after further deliberation urged it to agree if possible again pointing out principal issues to be determined, calling attention to labor, expense, and time another trial would entail, but further stating that it did not intend to tell it what to do and that the verdict to which each agreed must be result of his own convictions instead of mere acquiescence in conclusions of others, held such procedure and instructions did not constitute error.

5. Where an admission was made by party defendant at time he was under influence of intoxicants to extent of being 'in a drunken stupor,' testimony with respect thereto should have been excluded in that such admissions could not be designated voluntary.

6. Where admission by party defendant is made while under influence of intoxicants and drugs, even though evidence is not conclusive that his state of mind was such as to make statements involuntarily, court's failure to instruct jury to weigh such admission in the light of the circumstances under which it was made held to constitute abuse of discretion, particularly since evidence cast considerable doubt on fact to which admission related.

F. Martin Senn, Waseca, for appellant.

Miles Lord, Atty. Gen., Charles E. Houston, Sol. Gen., St. Paul, John R. Murphy, Asst. Atty. Gen., Einer C. Iversen, County Atty., Waseca, for respondent.

THOMAS GALLAGHER, Justice.

On October 1, 1954, at about 11:45 a.m., defendant, James R. Anderson, and decedent, Elmer O. Weik, were the sole occupants of an automobile belonging to Anderson's mother which, as it was proceeding north on Highway No. 13 in Waseca County near New Richland, left the road and smashed into a ditch. As a result Weik died October 3, 1954, and defendant sustained severe injuries.

On February 22, 1955, defendant was convicted of criminal negligence under M.S.A. § 169.11, which provides that:

'Any person who by operating or driving a vehicle of any kind in a reckless or grossly negligent manner causes a human being to be killed, under circumstances not constituting murder in the first, second, or third degree, or manslaughter in the first or second degree, is guilty of criminal negligence in the operation of a vehicle resulting in death.'

On July 6, 1955, he was sentenced to confinement in the State Penitentiary at Stillwater for a period not to exceed ten years. This is an appeal from the judgment and from an order denying his motion for a new trial.

At the time of the accident defendant was 29 years of age and resided with his wife and child in Waseca. He was employed by the Diekema Construction Company of Albert Lea. Decedent was then 47 years of age, single, and unemployed.

At 8:30 a.m. that day enroute to Albert Lea from Waseca, decedent, who was riding with defendant, had purchased two 4/5-quart bottles of Muscatel wine at the New Richland municipal liquor store. Later, about 9 a.m. that day, they arrived at the office of the Diekema Construction Company in Albert Lea where defendant worked. Defendant was then driving the car which was later involved in the accident and in stopping at the plant permitted it to bump into the wall thereof. He and Weik then went into the office, where defendant demanded his paycheck. He appeared to have been using intoxicants. After some words with his employer, he received his check and at the same time was discharged from his employment. Before he left, his employer said that 'if they didn't straighten up' he would 'call the cops and take the keys away from them.' In response thereto decedent stated that he was all right, and thereupon defendant tossed the keys to him and they left the office. Decedent then got into the driver's seat and drove the car away with defendant sitting to his right in the front seat.

About 10 a.m. the same morning, enroute back to Waseca, decedent again stopped at the municipal liquor store in New Richland with defendant, where each had a drink of whiskey. Decedent then purchased a pint of whiskey to take with him. There is no direct evidence as to which of them drove the car after leaving the liquor store, as they were not seen again until after the accident. At about 11:45 a.m. the same morning, some six or seven miles north of New Richland, the car left the highway and ran into the ditch, throwing both defendant and decedent clear but rendering them unconscious. About 12:30 p.m. they were taken to Waseca Memorial Hospital. Decedent was removed therefrom to Rochester, where he died October 3, 1954.

There is testimony that prior to the accident defendant was under the influence of intoxicants to a greater extent than decedent. Blood tests taken of him about an hour after the accident disclosed 0.31 percent ethyl alcohol in his system--indicative of extreme intoxication. Medical testimony was presented that the presence of alcohol in the system to the extent described would produce a drunken stupor so that the person involved would not respond--would have difficulty in coordination--and walk with a staggering gait; that it would result in 'confusion and muddle mindedness'; and that it would be from 15 to 20 hours before the last of the alcohol left his system.

Approximately one and one half hours after defendant arrived at the hospital, the sheriff of Waseca County attempted to interview him, but he did not respond to the sheriff's questions. A nurse present then indicated that defendant had spoken to her before the sheriff arrived. The latter then suggested that the nurse make inquiries of defendant which might be overheard near the door. This procedure was followed, and with respect thereto, over objection that any communication between defendant and the nurse working under the supervision of defendant's physician was privileged, the sheriff testified: 'She asked him if he were driving the car.' 'He said he was.' The nurse was not called as a witness.

The following morning at about 9:30 a.m. an agent for the insurance company which carried the liability insurance on the car called upon defendant at the hospital for the purpose of obtaining a report of the accident for the company. Over defendant's objection that any statements made to him for such purposes were privileged as between attorney and client, the court received his testimony that defendant had stated to him at this interview that he had been driving the car. There is evidence that prior to this interview defendant had had four administrations of Demerol--a morphine derivative-- in dosages of 100 milligrams each and that the effect of each dosage lasts from four to six hours.

Later the same day at about 1 p.m., defendant was interviewed by a member of the Minnesota highway patrol. The latter testified that at that time he had asked defendant if he was driving the car and that defendant had responded in the affirmative.

At the close of the testimony defendant's counsel submitted written requests for instructions to the jury, which included the following:

'* * * If, at the time of the alleged admission, defendant, either because of his intoxication, * * * drugs, injuries, or a combination of these factors, was incapable of receiving just impressions of the facts respecting which he made the alleged admissions, or incapable of relating them truly, then you are entitled to consider these factors in connection with the weight which you may give to the alleged admissions.'

The court gave no cautionary instructions with respect to this evidence.

Defendant's counsel likewise submitted written requests that the court instruct the jury on defendant's theory of the case that:

'* * * if you believe Anderson was so intoxicated as to have lost the use of his faculties and you find that Weik knew and appreciated this and with that knowledge gave the keys back to Anderson and permitted him to drive the car then your verdict must be not guilty because the negligence of Weik would be the sole proximate cause of the accident.

'After Weik took the keys and assumed the responsibility for the operation of the car at Albert Lea he owed a duty to Anderson and to the traveling public. If he failed in this duty and permitted Anderson thereafter to drive the car that failure was negligence on the part of Weik and it was the sole and proximate cause of the accident.'

The court denied this request, but in its memorandum indicated that it felt it had adequately...