Appeal from the Circuit Court of Rock Island county; the Hon.
GEORGE O. HEBEL, Judge, presiding. Affirmed.
Rehearing denied September 30, 1960.
This action was instituted under the Illinois Dram Shop Act by the plaintiff, Marian E. Woolley, Administrator of the Estate of Winton K. Woolley, deceased, to recover damages for the loss of her means of support because of the death of her husband, the deceased, which allegedly resulted from his intoxication.
A jury returned a verdict of not guilty in favor of the defendant, Hafner's Wagon Wheel, Inc., a Corporation. Judgment was entered on the verdict. Post-trial motions of the plaintiff were overruled and plaintiff appeals.
It is contended by the plaintiff that the trial court erred (1) In refusing to admit the plaintiff's evidence relating to a blood alcohol test on a specimen taken from the decedent's body. (2) In refusing to give an instruction offered by plaintiff; and (3) In submitting an improper interrogatory on behalf of the defendant.
Evidence of the results of a blood alcohol test made from a purported specimen taken from the body of the deceased at 11:25 o'clock P.M. on the night of his injury was offered in evidence by the plaintiff for the purpose of proving the intoxication of deceased at the time of his injuries. This evidence was offered out of the presence of the jury and objected to by defendant for the reason that a proper foundation was not laid to justify its admission.
The trial court sustained the objection and refused the evidence of the results of the blood alcohol test on the ground that no proper foundation was laid for its admission in that the evidence failed to show proper intra-laboratory delivery of the blood specimen from Edward Park, who drew the specimen, to his fellow employee, Charles Lantz, who performed the analysis. A proper consideration of this question requires a detailed review of the evidence with respect to the securing, delivery, unchanged condition and analysis of the blood specimen.
Winton K. Woolley, the plaintiff's decedent, was a blind man, thirty-five years of age, self-employed as a trucker and contractor. Woolley partially conducted his business from the defendant tavern. He would on occasions meet his customers and drivers in that place and receive and make telephone calls. On January 2, 1957, plaintiff's decedent was taken to the defendant tavern by one of his employees at about 11:00 o'clock in the morning and remained there the rest of the day until he left about 5:30 o'clock in the afternoon. Upon leaving the tavern, he started to walk to his home, and at that time it was dark and while walking about four blocks from the tavern in a street with which he was familiar he was struck down by a car driven by Thorston Becker and received severe injuries which resulted in his death seven days later on January 9, 1957.
At the request of the plaintiff, Dr. Robert J. Graham, the attending physician, requested Quad-Cities Pathologists Group, a partnership of four physicians which operated the laboratory facilities of four hospitals in the quad-city area, including Moline Public Hospital, to take a blood specimen from Winton K. Woolley for analysis as to alcoholic content.
Edward Park, an employee of Quad-Cities Pathologists Group, a trained and experienced laboratory technician, drew seven to ten cubic centimeters of blood from the arm of Winton K. Woolley at 11:25 o'clock P.M. in room 220 in Moline Public Hospital on January 2, 1957, placed the blood from the syringe into a bottle (a facsimile of the bottle was offered in evidence as Plaintiff's Exhibit No. 10). Park then returned to the laboratory, filled out a label, recorded the patient's name and room number thereon, signed his name to it, affixed the label to the bottle and placed the bottle in the laboratory's refrigerator. He then recorded the same information in the "Night Call Book," a book of original entries kept by the Quad-Cities Pathologists Group covering all night laboratory calls made by them. Park then addressed a note to the secretary, Mrs. Rietus, also an employee of Quad-Cities Pathologists Group (who did not come to work until the following morning), containing the patient's name and room number and advising her that the blood specimen was in the refrigerator of the laboratory so that it would be picked up in the morning and taken to the Group's laboratory in St. Luke's Hospital in Davenport, Iowa, for analysis.
On the following day, January 3, 1957, Charles Lantz, a clinical biochemist, employed by the Quad-Cities Pathologists Group, at its laboratory in St. Luke's Hospital in Davenport, Iowa, analyzed a blood specimen containing the name of Winton Woolley, and found that it contained 82 milligrams of alcohol per 100 cubic centimeters of blood (abbreviated as mg. %). He used the Johnson-Gibson procedure, a commonly accepted test. He recorded the results of his test in another original book of entries of Quad-Cities Pathologists Group kept at St. Luke's laboratory, known as the "Blood Alcohol Log Book," transferring the information from the label filled out by Park in the Log Book, which said Log Book was offered in evidence as Plaintiff's Exhibit No. 11.
Newell T. Braatelien, M.D., a pathologist trained in the effect of alcohol on a human being, who was the head of the laboratory, testified that a person's system oxidizes alcohol at a constant rate and applying a scientific formula, he stated that the concentration of alcohol in Woolley's blood at the time of his injury (339 minutes before the sample was taken) was 166 mg. %; that 150 mg. % represents intoxication and that in his opinion Woolley was intoxicated at the time of his injury at 5:46 o'clock P.M.
Three witnesses testified as to the delivery procedures used by the Quad-Cities Pathologists Group in transporting blood specimens from its laboratory in Moline Public Hospital to its laboratory in St. Luke's Hospital for analysis and stated that it was not customary for the laboratory to keep a record of the identity of the person delivering the specimen and that a record was not kept in this case. There was, however, a definite delivery routine and the same procedure was followed in all cases. The evidence was that when a specimen was taken at night, the laboratory at St. Luke's would be notified early the next morning and the specimen would be picked up from twenty to forty-five minutes after the call was received at St. Luke's. That during January, 1957, all of the specimens were picked up and delivered either by Charles Lantz or Dwight Summers, both employees of the Quad-Cities Pathologists Group. Lantz and Summers both testified that it was most probable Lantz that picked up and delivered the Woolley specimen. There was evidence to the effect that Dr. Braatelien, the pathologist and partner in the Quad-Cities Pathologists Group, or one Jack Mehl, another employee of the Group, might possibly have on rare occasions delivered a specimen, but both were called and testified that neither of them ever delivered a specimen. The evidence was further to the effect that once a specimen is taken it remained at all times in the hands of the Quad-Cities Pathologists Group and that in the range of experience of all of the laboratory personnel there had never been a single case of loss, misplacing, mislabeling or tampering with a blood specimen handled by the Group, nor had there been a single case of false or incorrect entry ever having been made in any book or records of the Group with respect to a blood specimen. All of the foregoing testimony with respect to the analysis of the blood specimen was offered outside the presence of the jury and on objection of defendant was refused.
No case is cited in either of the briefs submitted by plaintiff or defendant where the Supreme Court of Illinois has directly passed on the question of the admissibility of evidence obtained by means of a chemical analysis of bodily breath or fluids on the issue of ...