Wadena v. Bush, No. 45135

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: KNUTSON
• Citation: 232 N.W.2d 753,305 Minn. 134
• Docket Number: No. 45135
• Decision Date: 15 August 1975
• Parties: , 80 A.L.R.3d 439 John S. WADENA, Respondent, v. Lorraine A. BUSH, Defendant and Third-Party Plaintiff, Appellant, v. Byron DEEGAN, Third-Party Defendant, Respondent. and David DEEGAN, a minor, by Charles Deegan, his father and natural guardian and guardian ad litem, Respondent, v. Lorraine A. BUSH, Defendant and Third-Party Plaintiff, Appellant, v. John S. WADENA, Third-Party Defendant, Respondent, Byron Deegan, Third-Party Defendant, Respondent.

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232 N.W.2d 753 305 Minn. 134, 80 A.L.R.3d 439 John S. WADENA, Respondent,
v.
Lorraine A. BUSH, Defendant and Third-Party Plaintiff, Appellant,
v.
Byron DEEGAN, Third-Party Defendant, Respondent.
and
David DEEGAN, a minor, by Charles Deegan, his father and
natural guardian and guardian ad litem, Respondent,
v.
Lorraine A. BUSH, Defendant and Third-Party Plaintiff, Appellant,
v.
John S. WADENA, Third-Party Defendant, Respondent,
Byron Deegan, Third-Party Defendant, Respondent. No. 45135. Supreme Court of Minnesota. Aug. 15, 1975.

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Syllabus by the Court

1. Where evidence created a fact issue as to whether notations regarding patients' intoxication contained in hospital emergency room records were germane to medical history, diagnosis, or treatment, trial court did not abuse its discretion in expunging the notations on the grounds that they were not within the scope of Minn.St. 600.02 of the Uniform Business Records as Evidence Act.

2. Where counsel failed to make an offer of proof showing who made entries in hospital emergency room records, the source of that person's information, the time the entries were made, and the procedures used in administering and recording the results of a blood alcohol test, records must be held inadmissible for want of foundation even if they would otherwise be admissible.

3. Trial court's failure to instruct the jury on Minn.St. 169.14, subd. 3, requiring a driver to reduce his speed when approaching and crossing an intersection, was not reversible error where counsel failed to object to the omission before the jury retired, the vehicle in question had passed the intersection when the accident occurred, the vehicle in question had the right-of-way, the evidence was almost conclusive that the vehicle in question was traveling under the permissible speed limit, and both vehicles were traveling in opposite directions on the same street.

[305 Minn. 135] Cousineau, McGuire, Shaughnessy & Anderson and Robert J. McGuire, Minneapolis, for appellant.

Robert A. Nicklaus, Chaska, for Wadena.

Charles J. Lindberg, Minneapolis, for Byron Deegan.

Johnson & Ildstad and Paul Owen Johnson, Minneapolis, for David Deegan.

Heard before PETERSON, TODD and KNUTSON, JJ., and considered and decided by the court en banc.

KNUTSON, Justice. ^*

This is an appeal by defendant and third-party plaintiff, Lorraine A. Bush, from an order for judgment and order denying [305 Minn. 136] her motion for judgment n.o.v. or, in the alternative, for a new trial ¹ in an automobile accident case.

John S. Wadena and David Deegan were passengers in a vehicle owned by John S. Wadena and driven by Byron Deegan which collided with a vehicle owned and driven by Mrs. Bush.

John Wadena commenced an action against Lorraine Bush, who then sought contribution from third-party defendant Byron Deegan. David Deegan commenced a separate action against Mrs. Bush, who sought contribution from third-party defendants John Wadena and Byron Deegan. Byron Deegan and John Wadena also counterclaimed against Mrs. Bush. All claims were consolidated for trial to a jury.

In answer to special interrogatories, the jury found that 55 percent of the total negligence of the drivers was attributable to Mrs. Bush and 45 percent to Byron Deegan. The jury also determined the amount of damages suffered by each of the parties

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involved in the consolidated trial. Based thereon, the court computed the amount recoverable by each and judgment was entered accordingly. No one has raised any issue as to the correctness of these computations, so we may accept them as correct on this appeal. Consequently, the amount of the recovery is not involved here.

The accident out of which this action arose occurred on April 29, 1969, at approximately 12:30 a.m. near the intersection of Franklin and Pillsbury Avenues in Minneapolis. Franklin Avenue is a through street, 48 feet wide at the point of the accident. Entry to Franklin Avenue from Pillsbury in either direction is protected by stop signs. Pillsbury Avenue does not cross Franklin in a straight line but on the north side of Franklin is about 75 feet farther east than it is on the south side. In order to better understand the layout of these avenues, a copy of defendant David Deegan's Exhibit A is attached hereto.

[305 Minn. 137] Weather conditions were good and the roads were dry at the time of the collision. Mrs. Bush with her passenger, Diane Lee Christopherson, was driving in a westerly direction on Franklin intending to make a left turn to go south on Pillsbury. The vehicle driven by Byron Deegan and carrying John Wadena and David Deegan as passengers was headed east on Franklin. At the time of the accident the jury could find that the Deegan vehicle was probably traveling at a speed somewhere between 20 and 30 miles per hour, although there is some evidence to indicate that it may have been traveling faster than 30 miles per hour, which was the maximum speed limit in the area.

The jury could also find that the accident occurred because Mrs. Bush's vehicle was traveling in the wrong lane on Franklin Avenue. She testified that she was in the proper lane, had barely begun her turn onto Pillsbury, and had not crossed the centerline at the time of the collision. She also testified that she had her left-turn signal light on.

There was also some evidence to support a finding that the Deegan vehicle was traveling without headlights. Mrs. Bush claimed she did not see the other vehicle prior to the accident. A noninterested witness, who was traveling west on Franklin behind Mrs. Bush and turned on Pillsbury to go north, did not see the headlights of the Deegan vehicle, although he observed the area immediately preceding the collision. Byron and David Deegan testified that the headlights of their vehicle were on.

All of the persons involved in the accident admitted drinking intoxicating liquor on the evening prior to the collision. Mrs. Bush admitted drinking part of three drinks over the course of the evening. Diane Christopherson admitted having four or five drinks. The Deegans, John Wadena, and another friend consumed a six-pack of malt liquor that evening, but contended it was approximately five hours prior to the accident. Byron Deegan admitted having had two cans. John Wadena admitted having a can or two and two shots of whiskey. Another friend apparently had some of the malt liquor. Beer and beer cans were [305 Minn. 138] found in the Deegan vehicle after the crash, including an open can of malt liquor.

Respondents introduced into evidence Hennepin County General Hospital emergency room records. At the pretrial hearing the trial court granted the motions of respondents to delete from the records certain references to the alleged intoxication of respondents. Specifically, the trial court deleted an entry in a space on the hospital records for David Deegan--apparently provided for the use of 'police'--which contained the word 'drunk' and an entry in a space provided for 'type of accident' which contained the words, 'Disorderly conduct car vs. car.' On the hospital record of Byron Deegan the words: 'drunk,' 'unable to give history because of stupor,' and 'apparently intoxicated' were deleted, and on the record of John Wadena under the blank provided for 'diagnosis' the word 'Drunk' was deleted. Although it does not appear as part of the pretrial hearing nor do we

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find it on the hospital records, Mrs. Bush now argues that the trial court also deleted from the records the results of a blood alcohol test administered to John Wadena which showed his blood alcohol level to be .23 percent. The trial court noted prior to counsel's argument to the jury that the results of the test were irrelevant and not to be taken into account in a civil matter. Although the trial court did not specify the basis of its rulings, the motions made by respondents were grounded on the theories that the evidence was prejudicial, hearsay, without foundation, and beyond the scope of the Uniform Business Records as Evidence Act because it did not relate to medical treatment.

The appeal presents two questions, but the main thrust of appellant's argument relates to the question of whether the trial court erred in excluding references in hospital records admissible under Minn.St. 600.02 of the Uniform Business Records as Evidence Act, relating to David and Byron Deegan and John Wadena as being 'drunk,' 'intoxicated,' and in a 'stupor' on the night in question and excluding John Wadena's blood alcohol reading, which, it is claimed, was contained in the same records. [305 Minn. 139] The only other question involved is whether the trial court erred in refusing to instruct the jury on Minn.St. 169.14, subd. 3.

Mrs. Bush argues that the trial court erred in deleting the portions of the records relating to the intoxicated condition of the parties in the Deegan automobile. She argues that it should have been admitted to show the negligence of the driver, Byron Deegan, and to show that the observations of passengers John Wadena and David Deegan might have been impaired on account of their intoxication. She also argues that the entries should have been admitted for impeachment purposes.

Minn.St. 600.02 of the Uniform Business Records as Evidence Act, under which the hospital records were admitted, constitutes an exception to the hearsay rule and permits the admission into evidence of certain records made in the ordinary course of business. It states:

'A record of an act, condition, or event shall, In so far as relevant, be competent evidence If the custodian or other qualified witness testified to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition, or event, and if, in the opinion of the court, the sources of information, method, and time of preparation were such as to justify its admission.' (Italics...