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INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY v. WHITLOCK.
41366.
Action on insurance policy. Fulton Civil Court. Before Judge Williams.
FELTON, Chief Judge.
1. Testimony that the witness carried a blood sample from the coroner's office to the State Crime Laboratory was not inadmissible in evidence on the ground that he lacked actual knowledge of the contents of the package where his assumption as to the contents, based upon the label, was corroborated by the testimony of those who had handled the sample both before and after the duration of his custody. The court erred in overruling special ground 5 of the amended motion for a new trial.
2. Inability of the county medical examiner, who takes blood samples, to recall specifically, without reference to his records, the case of the decedent in the present action does not render inadmissible in evidence his testimony as to the usual routine followed where he testified that he handles a large number of such cases and that be does not remember ever having departed from the established routine, and where there is no evidence that such routine was not, or probably was not, followed in this case. The court erred in overruling special grounds 6, 7 and 8.
3. A copy of the State Crime Laboratory's report on a blood alcohol test made at the request of the county medical examiner by authority of Code Ann. 21-227 was admissible in evidence for the purpose of proving the defendant's intoxication at the time of his death where there was competent evidence as to the identity and chain of custody of the sample. The court erred in overruling special ground 9.
4. The court erred in directing a verdict against the insurer for the face amount of the life and accident policy containing an exclusion clause precluding liability in case of intoxication, where there was competent evidence that the decedent-insured had drunk heavily in the past and that his blood contained enough alcohol at the time of his death to authorize an inference of intoxication.
Tennie E. Whitlock brought an action against Interstate Life & Accident Insurance Company to recover benefits as beneficiary under an alleged life and accident policy, attached as an exhibit to the petition, issued to her son, D. J. Whitlock, which policy was alleged to have been in force at the time of the insured's death in an automobile accident, January 6, 1963. The plaintiff's compliance with all the policy provisions and failure of the defendant to pay the claim within 60 days after demand is alleged, and statutory penalty, attorney's fees and interest for bad faith were sought in addition to the $2,500 face value of the policy. The defendant filed an answer setting forth the defense that the insured was intoxicated at the time of his death, and that the policy provides in part that: "The Company shall not be liable for any loss sustained or contracted in consequence of the Insured's being intoxicated or under the influence of any narcotic unless administered on the advice of a physician."
At the trial of the case before a jury, the evidence adduced was substantially as follows (the italicized portions are those excluded or stricken by the court on motion):
The plaintiff testified: That her son had lived with her; that he had died on January 6, 1962 (sic); that he was out with another man at the time of his death; that the defendant's insurance agent had told her the day after her son's death that there was some kind of clause in the policy that the insured was drinking, but he (the insured) wasn't drinking that day that she had filed a claim with the defendant, but received no money from it; that her son, Joe, had "contacted" her lawyer sometime to collect the money.
The decedent's brother, Joe, testified: That the decedent had stayed at the witness's house from 7:30 or 8 o'clock up until sometime after 12 o'clock on the day of his death, since someone had to stay with their mother while the witness and his wife and children went to Sunday school; that the decedent did drink whiskey and that he had seen him "so drunk I had to tote him in the house"; that although the decedent could have taken a drink at his house, he did not see him do so; that he wouldn't have permitted him or anyone else to drink in his house; that the decedent wasn't drunk when he left the house; that his brother was killed sometime around dusk; that no one in his family had given the coroner permission to extract blood from his brother's body; that he turned the claim over to his lawyer, Mr. Spence, after the defendant informed him they would not pay the claim; that they waited 8 months or longer to make the claim to give them a chance to settle out of court, but that he couldn't be sure of when they denied liability.
Earl A. Gober, toxicologist at the State Crime Laboratory, testified: That his duties were to run blood alcohol tests; that on the morning of January 7, 1963, Sgt. E. F. McKillop of the Fulton County Coroner's office brought him a vial of blood, sealed with adhesive tape and labelled "D. J. Whitlock"; that the vial was accompanied by a piece of paper filled out at the coroner's office containing the name and the autopsy number; that he ran a routine blood alcohol test, following the usual procedure for such tests, which he described; that the analysis showed 0.30% of ethyl alcohol in the specimen; that there was no way for the specimen to become polluted with other ethyl alcohol; that his report of his analysis was made in the regular routine; that he didn't see any consent from the decedent's relatives with the sample, nor had he ever seen such a consent.
Dr. Vernelle Fox, Medical Director of the Georgia Clinic and Rehabilitation Center, a rehabilitation clinic for alcoholics, after being qualified as an expert as to the effect of alcohol on the human body, testified: that 95% of persons whose blood contained 0.30% ethyl alcohol would be considered clinically intoxicated by clinicians, with resulting reduced reflexes and visual acuity; that a person is "under the influence" if he has any alcohol in his blood; that a large man would have to ingest more alcohol than a smaller man to obtain the same blood-alcohol level; that the blood-alcohol level after death is not appreciably different from that at the time of death, although it is slightly lower; that the witness could not testify as to the effect of 0.30% alcohol in the decedent's blood, since she had not known the decedent.
James Clark Jackson, an Atlanta police officer who investigated the accident, testified: That he arrived on the scene after the driver had been taken to Grady Hospital; that he went to the hospital and at the coroner's laboratory he saw D. J. Whitlock, the decedent, as identified by his personal papers and the description on his driver's license, and was told by the ambulance driver that he was the victim and probably the driver; that he then located one Joe Samples, who told him that he had been the passenger in the automobile which the decedent had been driving at the time of the collision; that the left (driver's side) door of the automobile was ajar, indicating that it was the driver who had been ejected; that Samples had told him that the wheels on the automobile had started shimmying and jerking, apparently causing the decedent to lose control of the automobile; that when he talked to Samples, some three hours after the collision, he gave evidence of having been drinking; that the road at the point of the collision was clear and dry.
Dr. Tom Dillon, Fulton County Medical Examiner at the time of the collision, testified. That he took a blood sample from the decedent's body on January 6, 1963, that their routine procedure is as follows: the sample is taken with a needle and a syringe from the heart, placed in a vial, taking precautions against contamination, then the vial is placed in a brown paper sack, to which they staple a form identifying the same as blood, specifying the determination wanted, the date, the decedent's name and the doctor's (his own) signature; that the package is then sealed and refrigerated under lock and key at his office until it is taken to the State Crime Laboratory by an investigator; that whichever of his employees, over whom he has responsibility, receives the body from the ambulance or undertaker, it usually being a night morgue attendant, fills out a form, showing on it who received the body; that the witness obtained the name of the decedent from this form, which is attached as an identification tag to the decedent's foot; that this form contains the decedent's name, age, address, the date of receipt, an arbitrary sequential number and by whom the body was brought; that this form stays with the body and a carbon copy thereof is kept by his office; that the body is most frequently identified by their being told who it is; that he had never known a body to be wrongly identified in his office and that they take precautions about it; that he was not sure that this (erroneous identification) had not happened in this particular case; that he didn't remember the disposition of this particular sample specifically, since they have so many cases in a year and he didn't remember the case of this particular decedent at all except by reference to his records; that he could not say that their usual routine had been followed in this particular case, although he did not recall ever having departed from their established routine; that he had a photo copy of the report of the blood-alcohol test which he had requested and received from the State Crime Laboratory.
The Atlanta Police Department officer assigned to the Fulton County Coroner's Office as investigator under the Medical Examiner at the time in question, then-Sgt. E. F. McKillop, testified: That, according to his own notes and as the records reflect, he personally carried a sealed package with a white sheet stapled to the outside, on which was written the decedent's name, the case number and "Blood specimen for determination of blood alcohol," from the coroner's office to the State Crime Laboratory on January 7, 1963; that it was one of his regular duties to take such samples to the State Laboratory; that he did not know the contents of the package other than by its label; that the label bore the doctor's signature; that he didn't see the doctor sign it and he didn't scrutinize the signature closely enough to recognize it, but that he knew his signature; that he had not made any of the records involved in the transaction.
Woodrow Coleman testified: That he was at his shop for about twenty minutes between 4 and 5 o'clock on the day the decedent met his death and that the decedent was sitting around talking in front of the shop with the witness and others; that he had not seen or smelled the decedent drinking--he didn't act as though he had; that he was a friend of the decedent; that he had never drunk with the decedent before; that the decedent was still at the shop when he left; that this was about an hour and a half before the decedent's fatal collision.
Joe Samples testified: That he was with the decedent off and on from 12:30 p.m. up until the collision, at around 6:15 p.m.; that he was not in sight of the decedent all this time but was in "hollering" distance; that the decedent was not drunk that afternoon and that he had not seen or smelled any evidence of his having been drinking at that time and he seemed to walk and drive as well as anyone else; that in his opinion he had had no alcoholic drink; that the decedent had invited him to go with him a couple of miles to a store to get some cigarettes; that the car began shimmying, it was just "a-dancing," and it "went to shaking like a tire had blowed, just went to bouncing, just hit that little old curb on the side of that road, and it got up on the curb, and I don't know whether he was trying to get it straightened back or not"; that he estimated the speed of the automobile to have been 50 to 60 m.p.h. at the time the decedent lost control.
William E. Spence, Jr., counsel for the plaintiff, testified in his place: That he had been contacted by Joe Whitlock on or about February 15, 1963, to represent his mother, the plaintiff, in the case; that he notified the defendant by letter of February 18 that he represented her; that he submitted a proof of loss to the defendant on April 1, and was notified by them on April 5 that they were denying the claim because of a policy violation.
The court excluded as evidence a copy of the report on the blood-alcohol test requested by Dr. Tom Dillon and made by the State Crime Laboratory, tendered by the defendant.
At the close of the evidence the plaintiff made an oral motion for a directed verdict. The court directed a verdict in favor of the plaintiff on the issue of the face amount of the policy only. The defendant excepts to the judgment of the court directing a verdict in favor of the plaintiff and overruling its motion for a new trial as amended.
1. Special ground 5 of the amended motion for new trial assigns as error the exclusion of the testimony of Sgt. McKillop to the effect that he had carried the blood of D. J. Whitlock to the State Crime Laboratory. The objection made to the testimony was that the witness did not know what kind of container was in the box or even if blood was in the box.
Even assuming that it was necessary for the witness to have had first-hand, personal knowledge of what kind of container was in the box he transported or that it was, in fact, blood in the container, the absence of his actual personal knowledge does not, under the circumstances, necessarily render the testimony inadmissible. The testimony of Gober (summarized in the statement of facts hereinabove) supplies the missing link of the contents of the package brought by McKillop and received by Gober i.e., a vial of blood, sealed with adhesive tape, labeled "D. J. Whitlock," and accompanied by the identifying label filled out at the coroner's office. Although the custody of the sample might be traced by means of Gober's testimony of having received it from McKillop, McKillop's testimony was nevertheless corroborative of Gober's testimony and supplied an important link in the custody of the sample, from the coroner's office to the State Crime Laboratory. There was also a presumption, although admittedly rebuttable, that the contents of the sealed and labeled vial and package were as indicated by the label. The objection was to the lack of McKillop's actual knowledge of the contents, not to the possibility that the blood sample which he carried (which was confirmed by Gober's testimony) might not have been the one taken from the decedent, Whitlock, which possibility arises out of the testimony as to the procedure in the coroner's office before McKillop obtained custody of the sample, on which testimony we hereinafter rule. The court ended in excluding McKillop's testimony, hence in overruling this special ground.
2. Special grounds 6, 7 and 8 complain of the court's ruling out of the testimony of Dr. Tom Dillon indicated by italics in the statement of facts hereinabove and of the sustaining of an objection to a question as to whether the witness had ever deviated from his described usual procedure. The substance of the objections made thereto is that, the issue is, what the witness did with this particular blood sample, and since, by his own testimony, he doesn't remember the disposition of this particular sample, testimony as to what he routinely does is inadmissible.
"[I]t is generally permissible to allow a witness to testify from his own knowledge as to the usual custom or course of dealing involving the business routine of the party involved . . . Farmers Ginnery &c. Co. v. Thrasher, 144 Ga. 598 (3) (87 SE 804); Gulf Refining Co. v. Smith, 164 Ga. 811 (7) (139 SE 716); Burch v. Americus Grocery Co., 125 Ga. 153 (3) (53 SE 1008); Butler v. State, 142 Ga. 286 (6) (82 SE 654); Leonard v. Mixon, 96 Ga. 239 (23 SE 80, 51 ASR 134)." Russell v. Pitts, 105 Ga. App. 147, 149 (123 SE2d 708). Russell v. Pitts, supra, upheld the admission of testimony, as to the conditions and procedures in the hospital's emergency room relative to the taking of blood-alcohol samples, by the physician who treated the patient from whom such a sample was taken out of his presence. The testimony of Dr. Dillon in the instant case is even stronger, inasmuch as the usual customs and procedures as to which he testified were those involved in his own office, over which he had direct supervision, responsibility and control and, in many phases of the procedure, he personally performed the necessary duties involved.
The case of Nichols v. McCoy, (1951) (Cal.) 235 P2d 412, held that where it appears that the various steps in the keeping and transportation of the specimen, part, or object from the time it was taken from the body until the time of analysis were not traced or shown by the evidence the identification of the thing analyzed is insufficient and the presumptions that official duty is properly performed and that public records are correct will not supply missing links in the chain. Other cases hold that the identity of the part need not be proved beyond all possibility of doubt, that the circumstances need be such as to establish a reasonable assurance of the identity of the part, and that all possibility of tampering need not be excluded--the above being especially true where there is no evidence to create a suspicion that the part (or sample) was other than that taken or that there was a long, unexplained time lapse involved. Commonwealth v. Mazarella, (1924) 279 Pa. 465 (124 A 163); State v. Smith, (1920) (Mo.) 222 SW 455; State v. Cook, (1877) 17 Kan. 392; State v. Thompson, (1896) 132 Mo. 301 (34 SW 31); Ritter v. Village of Appleton, 254 Minn. 30 (93 NW2d 683); Anno. 21 ALR2d 1216.
3. Special ground 9 assigns as error the court's exclusion from evidence of a copy of the report of the State Crime Laboratory on the blood-alcohol test made on a sample of the decedent's blood at the request of the Medical Examiner, Dr. Dillon.
"In Georgia records or certificates of facts made by public officials are not admissible in evidence to prove the truth of the facts stated unless there is authority by statute or administrative order to record the facts. Jones v. Cordele Guano Co., 94 Ga. 14, 18 (20 SE 265); Green, The Georgia Law of Evidence, 628, 317; cf. Hay v. United States, 255 F2d 476, 480 (4th Cir. 1958); 5 Wigmore on Evidence 519, 1633; 515, 1639; Anno. 21 ALR2d 1216, 1239." Pittman v. State, 110 Ga. App. 625, 627 (139 SE2d 507). In the Pittman case, supra, the defendant, who had been involved in an automobile collision, requested the blood-alcohol test provided by Ga. L. 1953, Nov. Sess., pp. 556, 575 (Code Ann. 68-1625 (b, 4)). The State Patrol sent the blood sample to the State Crime Laboratory for analysis and the admissibility of the State Laboratory's report became an issue in the case. This court held as follows: "We find no statute, however, that authorizes an official of the State Crime Laboratory to make alcohol blood [blood alcohol] tests; therefore, the exception to the hearsay rule permitting admission in evidence of records of official acts, as applied in Georgia, does not apply to reports of blood alcohol tests made by this State agency. Cf. Ga. L. 1937, pp. 322, 340; as amended, Ga. L. 1941, pp. 277, 278 (Code Ann. 92A-302); Ga. L. 1953, p. 602 et seq. as amended, Ga. L. 1960, p. 1009 et seq. (Code Ann. 21-203 et seq.)." Pittman v. State, supra, p. 628. Ga. L. 1961, pp. 437, 438 (Code Ann. 21-227) provides as follows: "When any person has been admitted to a hospital or morgue as a result of any casualty and for any reason whatsoever is unable to give his consent to the taking of a sample of blood for analytical purposes, the peace officer in charge of the investigation of the circumstances surrounding the casualty may summon a medical examiner for the purpose of extracting a blood specimen in order to analyze the content thereof. The medical examiner shall be entitled to a fee of $5 for performing these services and shall be paid in the same manner as hereinbefore set out. The blood specimen so taken shall be submitted to the Crime Laboratory for analysis by the medical examiner or the peace officer in charge, and a certified report submitted by the laboratory to the submitting officer." (Emphasis supplied.) The above statute is clearly authority for the State Crime Laboratory not only to make blood-alcohol tests but to make and issue reports on the findings of such tests, at least within the limited scope of this Code section. Furthermore, Ga. L. 1953, pp. 602, 611 (Code Ann. 21-219) provides that copies of "reports in the office of the director of the State Crime Laboratory when duly attested by said director [which the present report was] shall be received as evidence in any court or other proceeding for any purpose for which the original could be received without any proof of the official character of the person whose name is signed thereto." Apparently, the only way to reconcile the broad statement hereinabove quoted from the Pittman case, regarding the lack of statutory authority for an official of the State Crime Laboratory to make blood-alcohol tests, with the provisions of Code Ann. 21-227 is to restrict it to the situation in that particular case, even though the court there took cognizance of that and related statutes. As has been indicated, the blood-alcohol test in that case was made pursuant to Code Ann. 08-1025 (b, 4), which provides that the Director of Public Safety is to designate the physicians to administer the test. The State Crime Laboratory is not specifically authorized to make such a test under that particular section, as it is under Code Ann. 21-227.
The Pittman case expressly did not decide whether an official record of a blood analysis made by statutory direction or authority would have to be accompanied by evidence showing the identity and chain of custody of the blood to make such a record admissible in evidence, since it was found that the blood analysis in that particular case was not made by statutory direction or authority. Since we have decided that the test in the present case was made by statutory direction or authority, this issue is now before the court. As has been already indicated, Code Ann. 21-219 permits the copy of the report to be received as evidence for any purpose for which the original could be received. Since this statute does not change the rules of competency or relevancy, and since the most this evidence could tend to prove is the analysis of the particular sample tested, it would seem necessary for the admissibility of this evidence to lay a proper foundation by showing the identity of the sample tested with the decedent and the chain of custody to render the report admissible as relevant evidence.
It would be unduly lengthy to discuss each detail of the evidence which establishes the chain of custody, which information can be obtained from the statement of facts hereinabove set out. Perhaps the following abbreviated synopsis of this evidence will serve to show that such evidence, if believed, would form a sufficient chain of custody to prove the ultimate fact: The police officer investigating the collision identified the body in the morgue as that of D. J. Whitlock by his personal papers and driver's license. The medical examiner, according to his records, took the blood sample from the decedent on the evening of his death, sealed, labeled and packaged the sample and kept it refrigerated in a locked room in his office overnight. The police officer assigned to the coroner's office as investigator under the medical examiner carried a sealed package labeled with the decedent's name from the coroner's office to the State Crime Laboratory on the following morning. The toxicologist at the State Crime Laboratory received the sealed package from the police investigator and saw that it contained a sealed vial of blood labeled with the decedent's name. The toxicologist ran a routine blood-alcohol test on the sample, following usual procedure and issuing a routine report thereon.
In the Pittman case, supra, p. 627, the court listed a number of "missing links" in the claim of evidence as to the identity and custody of the sample. These links are quoted below, with the pertinent evidence in the present case inserted in brackets: "It did not show by whom the blood sample was taken [Dr. Tom Dillon], how the container was labeled [contained decedent's name, age, address, date of receipt, case number, name of person by whom brought in, determination to be made from sample and examining doctor's signature and was filled out by the person receiving the body and the medical examiner], by whom [Sgt. McKillop] or by what means it was transmitted to the laboratory, when [the morning after the sample was taken] and by whom [Earl A. Gober] it was received." While the above enumeration might not exclude other factors which might be proved to form the chain of evidence, an examination of a number of such cases shows that the claim is as well or better documented here than most of those which have been held sufficient. An examination of the standard used in some of these cases may be helpful. In Ritter v. Village of Appleton, 254 Minn. 30, supra, the Supreme Court of Minnesota stated that it was not likely that the mortician who had taken the sample had confused them. "There is nothing to indicate that anyone had mislabeled the bottles or tampered with them at any time while they were at the mortuary, or at any time thereafter." (Emphasis supplied.) In State v. Fornier, 103 N. H. 152 (107 A2d 50), the court said: "It is not necessary that each evidentiary fact relied upon by the State be established beyond a reasonable doubt . . . The ultimate question remains whether on all the evidence it could be found that the blood analyzed by the State chemist was the defendant's blood . . . No rigid rule to fit every situation can be laid down, but each case must rest on its own facts . . . Considering the entire record, especially the unbroken seal on the container and the writing found therein, the only logical and sensible explanation of the situation is that the trooper wrote the transmittal slip, placed it in the container along with the tube of defendant's blood, and that these were what the State chemist received. Although the exact course by which the container was transferred from the refrigerator in the State Police headquarters to the laboratory of the State chemist was not detailed there was sufficient evidence to warrant a finding that the blood analyzed was the defendant's." (Emphasis supplied). In a 1963 Florida decision, Urga v. State, 155 S2d 719, 723, the court pointed out that "[n]o evidence was offered by the defense suggesting any laxity in the custodial or laboratory procedures of the Government, or any reason why the exhibits should be regarded as in any way untrustworthy." In Eisentrager v. State, 79 Nev. 38 (378 P2d 520), the Supreme Court of Nevada held: "The burden is upon the party relying
upon expert testimony to prove the identity of the object upon which such testimony is based. However, the practicalities of proof do not require such party to negative all possibility of substitution or tampering. He need only to establish that it is reasonably certain that substitution, alteration, or tampering did not occur . . . In such circumstances it was proper for the trial judge to admit the evidence and let what doubt, if any, regarding its identity, go to its weight."
There was a sufficient foundation laid by the evidence in the case at bar to make the copy of the laboratory report admissible; therefore the trial court erred in overruling the special ground of the motion for a new trial excepting to the exclusion from evidence of the document.
4. In ruling on the court's judgment overruling the motion for a new trial on the general grounds, reference is made to the evidence as set forth in the statement of facts, including that which we have held to have been improperly excluded. As has been indicated hereinabove, there was sufficient evidence which, if believed, might form a chain of identity and custody of the blood sample. As to the results of the test, Gober, the State Crime Laboratory toxicologist, testified as to the percentage of alcohol in the sample. This was supported by the copy of the report, which was improperly excluded from evidence. As to the probative value of such evidence on the question of the decedent's intoxication at the time of his death, the Pittman case, supra, p. 627, held that generally, in the absence of a statute dealing with the evidentiary effect of blood tests, the probative value of such evidence on the question of a person's intoxication must be shown by expert testimony. Ga. L. 1953, Nov. Sess. pp. 556, 575 (Code Ann. 68-1625 (b, 3)) provides as follows: "If there was at that time 0.15 percent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor." While this presumption is contained in a criminal statute, as this court held in Russell v. Pitts, 105 Ga. App. 147, 150 (1), supra, "We are cited to no rule of law which would make such tests, authorized in criminal cases under Code Ann. 68-1625, inadmissible in civil cases." The evidence of 0.30 percent of alcohol in the decedent's blood, having been supported by the evidentiary foundation as above discussed, authorized an inference of intoxication and the jury should have been allowed to decide whether it found in favor of the inference prima facie and if so whether it had been rebutted by the other evidence.
Furthermore, Dr. Fox's testimony, that 95% of persons whose blood contained 0.30% alcohol would be considered clinically intoxicated, was entitled to consideration by the jury. Although the possibility of the decedent's having been among the 5% who would not be intoxicated under these circumstances was not eliminated by the evidence, this testimony could nevertheless be weighed, and with the other evidence be found to preponderate toward the probability of the decedent's intoxication.
The trial court erred in its judgment directing the verdict in favor of the plaintiff and against the defendant for the face amount of the policy and in overruling the general grounds of the motion for a new trial.
Judgment reversed. Jordan and Deen, JJ., concur.
William Edward Spence, contra.
Nall, Miller, Cadenhead & Dennis, Theodore G. Frankel, Lynn A. Downey, for plaintiff in error.
ARGUED JULY 8, 1965 -- DECIDED SEPTEMBER 9, 1965.
Friday May 22 21:00 EDT


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