The precise question, presented in this civil case, arose in the corresponding civil case of
McGowan
v.
City of Los Angeles,
100 Cal App 2d 386 (
“Patently the court had discretion to determine whether the paper was relevant and whether ‘the sources of information, method and time of preparation were such as to justify’ the admission of the coroner’s record”;
and having then cited copious authority in support of such rule of discretion, the district court held (p 392; 21 ALR2d 1213):
“In the absence of proof that the blood analyzed was the blood of Cox, taken from his body prior to the injection of any fluid therein, oral testimony of the result of the analysis would not be admissible.”
The annotator of McGowan sums up, and we adopt for civil cases as at bar, the consensus of reasoned authority (p 1220) :
“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.”
This suit for damages arose out of an automotive collision, caused, according to plaintiff, by unlawful sales of intoxicating liquor, by the defendant tavern licensees to one William Hanover, with result that Hanover went forth in an intoxicated condition and drove his automobile in a manner actionable in-plaintiff’s favor as against such licensees. Trial to court *4 and jury resulted in a verdict and judgment for defendants.
Plaintiff, appealing, presents but one question of reviewable moment. He states it as follows:
“Hid the court err in refusing to admit plaintiff and appellant’s proposed exhibit 12, Mercy Hospital records of the blood alcohol test of "William Hanover, and excluding the testimony of Hr. William H. Benner?”
The question is concluded by the foregoing rule of evidence, the desideratum of which is that such a test and its results are inadmissible in the absence 'of proof that the blood specimen analyzed was actually taken from the person in scrutiny or the body of that person.
According to the record of Hr. Benner’s testimony, such testimony having been taken separately in the absence of the jury, plaintiff’s exhibit 12 purports to have been indorsed by Hanover and prepared in accordance with the requirements of CLS 1961, § 257.625a (Stat Ann 1963 Cum Supp § 9.2325[1]), (copied into People v. Lyall, 372 Mich at pages 623, 624). As in Lyall, however, the offeror of the exhibit failed to present the laboratory technician as a witness, by deposition or otherwise. Such technician, according to Hr. Benner, took the necessary specimen of Hanover’s blood and tested it. However, plaintiff submitted the exhibit only, together with the aforesaid segregated testimony of Hr. Benner.
Hr. Benner was the pathologist at the hospital where the specimen was allegedly taken and tested by the technician. The substance of his testimony was that the exhibit disclosed evidence of intoxication on the part of Hanover. The doctor, of course, had no knowledge of the taking of the specimen, its identification with Hanover, or of the fact of accuracy of the *5 test and its results. He testified from the exhibit only.
The trial judge refused to permit either the exhibit or the testimony to go before the jury. We agree, as portended above, with such ruling.
Michigan’s “business entry” statute (CL 1948, § 617.53 [Stat Ann § 27.902]; now CLS 1961, § 600.2146 [Stat Ann § 27A.2146]) provided no means for admission of exhibit 12, in the guise of a hospital record. Preparation of the instrument, and attachment thereof (if there was such attachment, which is not shown) to any hospital record, could hardly be termed an entry or record made “in the regular course of such [hospital] business.” Nor could it be claimed that it was “the regular course of such [hospital] business to make such memorandum or record.” Indeed, it may and should be said that any such memorandum, if actually prepared and made a part of any hospital record, would be a matter of irregular if not extraordinary course of hospital record keeping. Decidedly, such action would not be deemed as incident to or a part of hospital treatment.
What was said in
Case
v.
Vearrindy,
“Portions of hospital records which do not refer tp acts, transactions, occurrences or events incident to the hospital treatment, however, are hearsay and inadmissible. Valenti v. Mayer,301 Mich 551 . In point from Sadjak v. Parker-Wolverine Co.,281 Mich 84 , 87, is the following:
“ What decedent told the hospital authorities did not refer to any act, transaction, occurrence, or event in the hospital treatment. The portion of the record thus objected to was pure hearsay and of no evidentiary force and inadmissible. Also, see Kelly v. Ford Motor Co.,280 Mich 378 .’ ”
*6 No other question requires discussion. Judgment affirmed. Costs to defendants.
The McGowan Case is annotated under this heading (21 ALR2d 1216 et seg.).: -,
“Proof of identity of person or thing where object, specimen, or part is taken from a human body, as basis for admission of testimony or report of expert or officer based on such object, specimen, or part.”