Utah Farm Bureau Ins. Co. v. Chugg

• Decision Date: 05 September 1957
• Docket Number: No. 8621,8621
• Citation: 6 Utah 2d 399,315 P.2d 277
• Parties: d 399 UTAH FARM BUREAU INS. CO., a Utah corporation, Plaintiff and Respondent, v. Rex K. CHUGG, Defendant and Appellant, Willard A. Larsen et al., Defendants.
• Court: Utah Supreme Court

Page 277

315 P.2d 277

6 Utah 2d 399

UTAH FARM BUREAU INS. CO., a Utah corporation, Plaintiff and Respondent, v. Rex K. CHUGG, Defendant and Appellant Willard A. Larsen et al., Defendants.

No. 8621.

Supreme Court of Utah.

Sept. 5, 1957.

E. F. Ziegler and Bullen & Olson, Logan, for appellant.

C. N. Ottosen, Salt Lake City, for respondent.

WADE, Justice.

The Utah Farm Bureau Insurance Company brought a suit for a declaratory judgment to determine its rights under an automobile insurance policy it had issued to Rex K. Chugg, appellant herein. This policy contained an exclusion clause which suspended all coverage when the car was being operated by a driver who was 'under the influence of alcohol.'

Willard A. Larsen, one of the defendants in this suit, had commenced an action against Rex K. Chugg for personal and property damages arising out of an automobile accident. One of the terms of the policy issued by the Utah Farm Bureau Ins. Co. required it to defend any suits brought against the insured. It refused to defend the suit against Rex K. Chugg. The Insurance Company then brought the suit for the declaratory judgment appealed from herein in which it sought to have the court determine that under the provisions of the policy issued is was not obligated to defend the suit because Chugg at the time of the accident was driving under the influence of alcohol and therefore the coverage under the policy was suspended by virtue of its exclusion clause, Section (i).

At the trial of this action there was admitted in evidence testimony that shortly after the accident a sample of Chugg's blood was taken from him while he was unconscious and in no condition to object. Evidence was also introduced of Chugg's guilty plea to a charge of drunken driving arising out of this accident.

The policy did not comply with the provisions of Sec. 41-12-21, U.C.A. of our Motor Vehicle Safety Responsibility Act, and the policy had never been filed for approval with our State Insurance Commissioner as required by law. The State Insurance Commission stipulated, however, that had the policy been filed it would have shown no violation of any provision of the State Insurance Code and it would have been approved.

It was also disclosed by the evidence that Chugg had never been required by the Division of Safety and Financial Responsibility of this state, prior to this accident, to show proof of financial responsibility.

The court found that Chugg was intoxicated while he was driving the automobile at the time of the collision, and therefore under the terms of the policy neither he nor any third party were covered by any of its provisions. The court further concluded that our Safety Responsibility Act and its provisions did not apply to the policy involved herein because no proof of financial responsibility had been required of Chugg by the division of Safety and Financial Responsibility of the Department of Public Safety prior to the issuance of this policy.

The provisions of Sec. 21 of our Motor Vehicle Safety Responsibility Act, Chap. 71, Laws of Utah 1951, and Title 41, Chap. 12, U.C.A.1953, apply only to those policies required by the department to be furnished as proof of financial responsibility after the owner or operator has been involved in an accident or has violated the motor vehicle laws. This is apparent from the title of the Act, which reads:

'An Act to be Entitled the Motor Vehicle Safety Responsibility Act, Providing for Giving Proof of Financial Responsibility by Owners and Operators of Motor Vehicles Violating the Motor Vehicle Laws of the State of Utah or involved in an Accident in Which Damages Result in Excess of $100, Requiring the Giving of Security for the Payment of Damages; Providing for the Suspension of Operators Licenses and Registration Certificates Until Such Security Is Furnished; * * *'.

It being conceded that the policy was not issued because Chugg had been required by the Commission to furnish proof of financial responsibility in conformance with the Act, it follows that the provisions of the Act do not apply to it. Unless Chugg had been within the purview of the Act when the policy was issued, its provisions, unless illegal, are subject to the same construction as any other contract, in accordance with the expressed intent of the parties. Here the contract clearly provided that there would be no coverage if the accident occurred while Chugg was intoxicated when he was driving. See McCann for Use of Osterman v. Continental Casualty Co., 6 Ill.App.2d 527, 128 N.E.2d 624, on page 627, wherein the court in deciding whether a policy was subject to the provisions of their Financial Responsibility Act S.H.A. ch. 95 1/2, Secs. 58b-58k which is similar to our Act said:

'* * * The provisions of the Financial Responsibility Act of Illinois are not applicable unless the insured has by his previous conduct brought himself within its purview. There was no evidence in the record that the insured had had a previous accident or that there was any unsatisfied judgment growing out of an accident against him, nor is there any contention that in any way by his previous conduct the insured came within the scope of the Act. Only if his prior conduct had been such that he was required to make proof of financial responsibility under the Act would the provisions contained in paragraph 58k have been of necessity, under clause 8 of the policy, incorporated therein.' See also Minn.Law Review, Vol. 33, pages 525-527.

Appellant contends that the court erred in admitting testimony about the alcoholic content of a blood sample over his objection because there had been insufficient foundation laid identifying the blood sample analyzed as being his blood. We agree. The only evidence introduced was that of the medical technician of the hospital to which Chugg was taken after the accident who testified as to the alcoholic content of a blood sample which she said was Chugg's. However, she admitted she did not draw the sample from Chugg nor was she present when it was taken. There was no evidence as to how, when or from whom she obtained the sample nor from what information she concluded that the specimen she ran belonged to Chugg. From a notation in her record book she stated that the doctor who attended Chugg drew the blood specimen. This doctor testified he could not remember whether he personally drew the sample, that usually the laboratory technician draws the blood. Neither could he remember to whom the blood specimen was given after it was drawn. No attempt was made to introduce in evidence the specimen allegedly taken from Chugg. Nor was there evidence that the specimen was labeled or sealed and if so by whom before it was turned over to the laboratory. Clearly there is a lack of necessary evidence linking the sample analyzed with the blood sample drawn from Chugg and is therefore insufficient to identify the blood sample as being that of Chugg. See Novak v. District of Columbia, 82 U.S.App.D.C. 95, 160 F.2d 588; State v. Weltha, 228 Iowa 519, 292 N.W. 148; State v. Werling, 234 Iowa 1109, 13 N.W.2d 318; Abrego v. State, 157 Tex.Cr.R. 264, 248 S.W.2d 490; 20 Am.Jur.Cum.Supp.1956, 114, Evidence, Sec. 876, note to page 737 and 159 A.L.R. pages 212 and 224 as to necessity for satisfactorily identifying specimen of blood used in analysis as that belonging to the person whose intoxication is in question, in both criminal and civil cases.

Appellant also contends that the court erred in admitting in evidence as an admission against interest a plea of guilty to drunken driving by Chugg in a criminal proceeding arising out of the accident involved herein because Sec. 41-6-170, U.C.A.1953, provides that:

'No record of the conviction of any person for any violation of this act shall be admissible as evidence in any court in any civil action.' (Uniform Act Regulating Traffic on Highways.)

We agree. The above quoted statute clearly prohibits the admission in evidence of a record of conviction of a violation of the Uniform Act Regulating Traffic on Highways. A plea of guilty is as much a conviction as a verdict and judgment to that effect and therefore under the provisions of this statute should not have been admitted in evidence. See State v. Jensen, 74 Utah 299, on page 303, 279 P. 506, on page 507, wherein this court in deciding that it was error to admit in evidence a plea of guilty subsequently withdrawn on the ground that it was in the nature of a confession or an admission against interest quoted with approval the following from Kercheval v. U. S., 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009:

"* * * A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. * * *"

Also see Warren v. Marsh, 215 Minn. 615, 11 N.W.2d 528; 18 A.L.R.2d 1311, note 16.

The only other evidence that Chugg was intoxicated was the testimony of a deputy sheriff who put his head inside Chugg's car shortly after the accident where he saw an empty bottle and Chugg lying on the seat and smelled liquor. He testified that Chugg was 'kind of throwing his body around,' 'his eyes were kind of rolling' and 'he was trying to talk' but 'you just couldn't understand what he was saying.' This officer testified 'from the smell, I imagine he had been drinking quite a bit.' He only saw Chugg for about a minute and did not see him walk at all. When further pressed he said, 'the only thing I can say is that I could smell it in the car,' and from all these things 'I presume he was intoxicated.' On cross-examination...