Patricia L. Kissinger, Administratrix of the Estate of Lee N. Kissinger, Deceased, and Harold M. Stern, Ancillary Administrator v. James Frankhouser , 308 F.2d 348 ( 1962 )

SOBELOFF, Chief Judge.

The instant case and Thomas v. Hogan, 308 F.2d 355 (4th Cir. 1962), decided this day, have a common question: the admissibility of an entry in a hospital record showing the result of a Bogen’s test for intoxication. Here the District Court ruled the evidence admissible. Kissinger v. Frankhouser, 194 F.Supp. 276 (E.D.Va.1961) (opinion by Hoffman, Ch. J.).

About 1:15 a. m. on October 16, 1959, an automobile overturned on Princess Anne Road a short distance from the main gate of the Oceana Naval Air Station. When found only a few minutes later, the lights of the car were on, the radio was playing, and gasoline was still pouring from its tank. James Frank-houser, the owner and driver of the car, was lying nearby, unconscious and bleeding profusely from a deep scalp wound, and his passenger, Lee Kissinger, lay dead fifteen or twenty steps away.

At the place where this tragedy occurred, the twenty-five foot wide asphalt road is three or four inches higher than the soft shoulder. Other than the deceased and Frankhouser, who claims amnesia, there were no eyewitnesses to the accident. However, the physical facts indicate that the right wheels of the car had gone off the road onto the shoulder .at a slightly banked, left-hand curve, and that the car began to skid as Frank-houser slammed on the brakes. Apparently, when the driver attempted to return the fast-moving car to the hard •surface, the right front wheel gouged into the edge of the elevated road, causing the vehicle to flip over. It skipped some 110 feet before coming to rest with its wheels in the air.

Seeking damages for the death, Kis.singer’s widow, who is also the adminis-tratrix of his estate, and the ancillary .administrator representing the surviving children, instituted the present case •against Frankhouser. Plaintiffs alleged that the defendant’s drunkenness, his ■driving at an excessive rate of speed, and his gross negligence caused the accident.¹ 'The affirmative defense of contributory negligence was interposed, as well as a ■denial of primary negligence. These issues were submitted to the jury. The verdict was in favor of the plaintiffs and •damages were assessed in the amount of :$18,900.

When Frankhouser was taken to the Navy dispensary, Dr. S. B. Meyerson, who was on duty, observed that the man had “the odor of alcohol on his breath,” and the doctor’s deposition further states ■that he “suspected that [Frankhouser] was intoxicated.” This doctor ordered a 'Bogen’s test and sent Frankhouser to the United States Naval Hospital at Portsmouth, Virginia, for further treatment. Upon examination of the patient at that Iiospital, the attending physician, Dr. J. M. Marlowe, noted his observations on the “Clinical Record”:

1. Laceration scalp and forehead,

2. Fracture .left pubis,

3. Bladder damage,

4. No fracture right fibula, and

5. Simple drunkenness.

As ordered, the Bogen’s test was performed at the Portsmouth hospital by Hospitalman Kent Gibson, and evaluated by Dr. R. P. Heldt. The test showed that Frankhouser’s blood had 2.5 milligrams of alcohol per 100 c.c. and Dr. Heldt recorded his finding on a “Hematology Report.” Shortly thereafter Dr. Marlowe noted the test result on Frank-houser’s Clinical Record.

Over defendant’s objection, the hospital record, which included the Clinical Record and the Hematology Report, was admitted in evidence. Basing his opinion on these records, Ramon Morano, a toxicologist of ten years’ experience, associated with the office of the Chief Medical Examiner of the City of Norfolk, testified at the trial that Frankhouser was intoxicated on the night of the accident and incapable of properly operating an automobile.

For the reasons stated in Thomas v. Hogan, supra, we think that the hospital record was properly admitted. The defendant’s evidence fell short of showing that the Bogen’s test was not properly done. The testimony of the hospitalman who performed the test was that he had considerable experience with the test and that he followed the usual procedure in running it. • True, he took only ten to twenty minutes to perform the distillation operation, and toxicologist Morano testified that it took him thirty minutes to perform this step, but it appears that Morano uses 4 c.c. of blood in the distillation process, while the hospital procedure calls for the use of only 2 c.c. There was not the slightest suggestion at the trial that the hospital procedure outlined by the witness did not yield a reliable result. Dr. Heldt, who evaluated the test, was not present to testify and his competency was not challenged. Indeed, the testimony shows that he, like Hospitalman Gibson, had considerable experience with the Bogen’s test procedure. The test was performed in the regular course of the hospital’s business and recorded according to the regular routine of the institution, thus meeting the requirements of the shop-book statute. The attack on the entry showing the result of the test must fail.

It is to be noted that the defendant did not assert on this appeal, either in brief or oral argument, that the introduction of Marlowe’s “Initial Impression” of “Simple Drunkenness,” entered on Frankhouser’s Clinical Record, was error. He addressed himself only to the entry showing the result of the Bogen’s test. However, assuming that a question as to the attending physician’s initial impression is raisable, we are of the opinion that the admission of this record entry was proper. When Frankhouser was brought to the hospital, he had a severe scalp laceration, and it was no doubt thought desirable to conduct a Bogen’s test to determine whether the symptoms he exhibited were due to head injury or to intoxication. The outcome of the Bo-gen’s test would help to determine the diagnosis and the type of treatment he should receive. The record entry of Dr. Marlowe’s initial impression was admissible to show the reason for ordering the Bogen’s test, and it supports Dr. Meyer-son’s suspicions at the dispensary which induced him to order the test.

Three questions of state law are raised by the defendant in his attack on the jury’s verdict. He asserts that gross negligence and proximate cause have not been proved and that the deceased was contributorily negligent as a matter of law. Little need be said about gross negligence. The evidence shows that Frankhouser was driving while intoxicated, and the Virginia court has taken judicial notice of the fact, universally recognized, that an operator of an automobile may become incompetent and reckless from drinking. Crowell v. Duncan, 145 Va. 489, 134 S.E. 576, 581, 50 A.L.R. 1425 (1926). The jury could in the circumstances reasonably find Frankhouser’s reckless conduct “shocking,” and its finding of gross negligence cannot be disturbed. See, e. g., Dickerson v. Miller, 196 Va. 659, 85 S.E.2d 275 (1955).

Likewise, there is adequate support in the evidence for the jury’s finding of proximate cause. From the testimony that Frankhouser’s intoxication rendered him incapable of properly operating his automobile, reasonable men could conclude that this was the cause of the accident. Of course, it is common knowledge that automobiles sometimes run off the road onto the shoulder through no fault of the driver,² but, where it is shown that the driver was intoxicated, an inference may be drawn that this was the cause. The issue was properly referred to the jury for decision.

Finally, the defendant contends that the evidence shows Kissinger’s contributory negligence as a matter of law in riding with his drunken driver. It is asserted that under the Virginia law, a guest may not recover if he knew or reasonably should have known that his driver had been drinking intoxicating liquor to an extent likely to affect the manner of his driving, and the guest voluntarily continued as a passenger after a reasonable opportunity to leave the automobile. The cases cited by the defendant so hold. See Seaboard Air Line Ry. v. Terrell, 149 Va. 344, 141 S.E. 231 (1928); Yorke v. Maynard, 173 Va. 183, 3 S.E.2d 366 (1939) ; Bates v. Thompson, 200 Va. 501, 106 S.E.2d 728 (1959). However, this proposition of law requires affirmance of, rather than reversal of, the judgment here. The defendant had the burden of proving contributory negligence, see e. g., Burks v. Webb, 199 Va. 296, 99 S.E.2d 629 (1957), and the evidence fails to establish, with sufficient certainty to remove the questions from the jury’s province, that the driver’s drunken condition was apparent to the deceased or that he had an opportunity to leave the car. There is a complete void in the evidence as to Kissinger’s conduct between 8:00 p. m. and the accident. The defendant is not warranted in his insistence that the trial judge should have required the jury to speculate that Kissinger knew of his driver’s condition and that he had ample opportunity to leave the car. In this respect, the present case parallels Bates v. Thompson, supra, where the conflicting inferences as to the passenger’s awareness were held to be for the jury.

We find no error, and the judgment below will be

Affirmed.

1 . It is conceded that Kissinger was a guest in the car, and was required to prove gross negligence in order to establish liability. See Code of Virginia § 8-640.1 (1950),

2 . See Richter v. Seawell, 183 Va. 379, 32 S.E.2d 62 (1944); Boggs v. Plybon, 157 Va. 30, 160 S.E. 77 (1931).