McLean v. Rogers , 100 Mich. App. 734 ( 1980 )

100 Mich. App. 734 (1980) 300 N.W.2d 389

McLEAN
v.
ROGERS

Docket No. 78-3757.

Michigan Court of Appeals.

Decided October 22, 1980.

Garvey, Kreis, Enderle, Halpert & Etter, P.C., for plaintiff.

Cholette, Perkins & Buchanan (by Bruce M. Bieneman and Robert J. Riley), for defendant Sanders.

James, Dark & Brill, for defendant Rogers.

Before: D.E. HOLBROOK, JR., P.J., and T.M. BURNS and E.E. BORRADAILE,^[*] JJ.

D.E. HOLBROOK, JR., P.J.

Plaintiff brought this action for damages caused by the negligence of Rogers and Harold V. Sanders in the operation of their automobiles. On the date of the accident, Rogers had had two beers and was drinking a beer while driving. Such evidence went to the jury. He was driving above the speed limit and stayed in the passing lane after passing another automobile. Rogers testified that he noticed Sanders' vehicle moving up rapidly from behind and was somewhat nervous because it appeared to be traveling at a high rate of speed. Sanders bumped Rogers' car, braked, and then shot into the on-coming traffic and collided with plaintiff's automobile. Sanders was killed and plaintiff was seriously injured. A jury awarded damages of $40,000 against both defendants. Rogers appeals as of right.

The primary basis of defendant Rogers' negligence is that he slowed his vehicle down while in the passing lane even though he was aware that a car was approaching rapidly from behind. A jury might reasonably have found that Rogers' consumption of beer added to his careless conduct of slowing down.

Rogers argues that he is entitled to a new trial because the trial court erroneously excluded evidence of a blood alcohol test of Sanders performed by a medical examiner after the accident. He contends that had the jury known that Sanders was under the influence of alcohol, they would have been more likely to find Sanders totally to blame for the collision. We agree. A clinical toxicologist testified at an evidentiary hearing that the blood alcohol sample from Sanders was .21 by weight. This level is twice the level for a legal presumption of driving under the influence and would significantly affect the ability to drive an automobile. There would be visual disturbances in gauging distances and motion, and in some cases there would be double vision. Motor skills such as braking, steering coordination, and reaction time would be severely affected.

In a negligence action, in order to show proximate cause, the plaintiff must prove that the injury was a probable, reasonably anticipated, and natural consequence of the defendant's negligence. Proximate cause is not established where there is an intervening and superseding cause of the injury. An actor's negligent conduct will not be a legal cause of harm to another unless that conduct was a substantial factor in bringing about the harm. When the jury found Rogers guilty of negligent driving it did not have knowledge of all the relevant facts. Evidence of Sanders' consumption of alcohol was relevant to the issue of negligence and proximate cause. Such evidence could likely have resulted in the jury's finding that the negligence of Harold Sanders was an intervening and superseding cause.

In Hubenschmidt v Shears, 403 Mich 486; 270 NW2d 2 (1978), deaths occurred in traffic accidents where the use or abuse of alcohol or other substances may have been a factor. The removal of blood from a dead body for purposes of testing was found not to be unreasonable under the circumstances and did not shock the conscience or the court's sense of justice. Issues such as search and seizure, right to privacy, security of person, or statutory construction which could be raised in cases dealing with extraction of a blood sample from a living person do not apply. The right to privacy is a personal one ending with the death of the person to whom it is of value. It may not be claimed by his estate or by his next of kin. In Hubenschmidt, supra, 490, the Court stated:

"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."

In the instant case, there is no question as to the integrity and reliability of the test results. The requisite foundation was established. Defendant Rogers was severely prejudiced by the admission of evidence regarding his drinking of alcoholic beverages while similar and more damaging evidence relating to the codefendant's decedent's consumption of same was withheld from the jury. As in Hubenschmidt, supra, such evidence was relevant to the issue of negligence and proximate cause. It should not have been excluded.

Having examined defendant Rogers' remaining allegations of error, we find them to be without merit.

Reversed and remanded. Costs to appellant.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.