Hubenschmidt v. Shears , 403 Mich. 486 ( 1978 )

403 Mich. 486 (1978) 270 N.W.2d 2

HUBENSCHMIDT
v.
SHEARS
MILLER
v.
DURYEA

Docket Nos. 60906, 61287.

Supreme Court of Michigan.

Decided October 2, 1978.

Rowe, Talon & Jones, P.C., for plaintiff Hubenschmidt.

Early, Starbuck & Lennon (by Charles E. Starbuck and James E. Beck) for plaintiff Miller.

Neal & Lengauer (by Paul Lazar) for defendant Shears.

Cholette, Perkins & Buchanan (by Don V. Souter and Kenneth L. Block) for defendants Duryea.

PER CURIAM:

The issue to be decided in these two cases is whether the results of a test for alcohol content of a blood sample taken from a dead body may be admitted as evidence in a wrongful death action brought by or against the decedent's representative. We hold that if the requisite foundation is established showing the integrity of the results, they may be admitted into evidence if they are found to be relevant. MRE 401.

I

David Miller's (plaintiff) decedent, William Wicks, was the driver of a car which collided with a car being driven by Robert Duryea (defendant) on March 7, 1975. Plaintiff's decedent died at the accident scene. While the body was at the funeral home, a blood sample was taken by the county medical examiner, a medical doctor. The sample was tested by the Holland Crime Lab and was found to contain .17% of alcohol by weight. Since the driver was dead, the test was not administered pursuant to the implied consent statute.^[1]

Linda Hubenschmidt's (plaintiff) decedent was a pedestrian who was struck by a recreational vehicle being driven by Harold Shears (defendant) on July 5, 1975. Plaintiff's decedent died at the accident scene. While the body was at the hospital for a determination of the cause of death, a blood sample was taken by a deputy county medical examiner, a medical doctor. The sample was chemically tested and found to contain a percentage of alcohol not stated in the record.

II

In each case a wrongful death action was filed by the decedent's representative.^[2] In the Miller case the plaintiff brought a motion to suppress the evidence of the results of the chemical test of the blood sample. In the Hubenschmidt case the plaintiff brought a motion for a protective order to prevent the admission into evidence of the results of the chemical test of the blood sample.

On April 26, 1976 the trial judge in the Hubenschmidt case granted plaintiff's motion for a protective order. The defendant appealed and the Court of Appeals affirmed citing Lebel v Swincicki, 354 Mich 427; 93 NW2d 281 (1958). 79 Mich App 458; 263 NW2d 13 (1977).

On February 24, 1978 the trial judge in the Miller case issued an opinion in which he reluctantly granted plaintiff's motion to suppress based on the ruling of the Court of Appeals in the Hubenschmidt case. An order suppressing the evidence was entered on March 22, 1978. The defendant sought leave to appeal in the Court of Appeals and filed in this Court an application for leave to appeal prior to decision of the Court of Appeals.

We reverse in both cases.

III

The removal of blood from a dead body for purposes of testing was not unreasonable under the circumstances and does not shock the conscience or our sense of justice. The circumstances were that traffic deaths had occurred in which the use or abuse of alcohol (or other substances) might have been a factor.

We are not concerned in these cases with issues of search and seizure/right to privacy, security of person or statutory construction which were raised in Lebel v Swincicki, supra, and McNitt v Citco Drilling Co, 397 Mich 384; 245 NW2d 18 (1976). Both of those cases dealt with extraction of a blood sample from a person still alive. Indeed, in Lebel, it is noted that:

"the right to privacy is a personal one which ends with the death of the person to whom it is of value, and it may not be claimed by his estate or by his next of kin." 354 Mich 440.

Likewise, we can find no legitimate basis for the argument that a decedent's representative can claim, in a civil case, that the nonconsensual blood extraction from an already dead body amounted to an illegal search and seizure. Certainly there is no possible claim concerning the constitutional protection against self-incrimination.

Evidence of the consumption of alcohol by the decedents in these wrongful deaths could potentially be relevant to the issue of contributory negligence raised as an affirmative defense by each defendant. If the proponents of the evidence can show the requisite foundation establishing the integrity of the test results and the evidence is determined to be relevant by the trial judge, the results may properly be admitted into evidence at trial. Gard v Michigan Produce Haulers, 20 Mich App 402, 407-409; 174 NW2d 73 (1969); MRE 401, 402, 403.

Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the rulings of the lower courts excluding the evidence and remand these cases to the circuit courts for trial. Costs to defendants.

KAVANAGH, C.J., and WILLIAMS, LEVIN, COLEMAN, FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred.

NOTES

[1] MCL 257.625a, 257.625b, 257.625c, 257.625d, 257.625f; MSA 9.2325(1), 9.2325(2), 9.2325(3), 9.2325(4), 9.2325(6).

[2] The same result would be reached if the decedent's representative is a defendant.