Branch v. Wilkinson

(1973); McCown, State v. 203 N. W. (1973). 2d 445

The judgment of the District Court is correct is affirmed.

Affirmed. Branch, Dolores J. administratrix estate v. John S. Branch, deceased, appellant, Hubert L. appellee.

Wilkinson, 256 N. 2d 307 W.

Filed June 1977. No. 40893. Jensen, & for appellant. J. Beal of Beal Gregory Brower, Mullin & Hol- Chaloupka, Steenberg, Van for appellee. yoke, J.,

Heard before White, Spencer, Boslaugh, C. JJ. and White, McCown, Clinton, Brodkey, White, C. J. action wrongful brought

This is a death Branch, Dolores J. Administratrix plaintiff, Branch, plain- L. deceased. The of Hubert Estate result of an was killed as a automo- tiff’s decedent Nebraska, on March County, in Morrill bile accident passenger was a plaintiff’s The decedent 1974. owned and oper- The defendant the motor vehicle. the plaintiff alleged vehicle. In her petition, ated intoxication, and speeding including negligence, dam- damages, including general sought special her dece- suffering pain for conscious ages dent. denial and general with a answered

The defendant from evidence derived suppress a motion filed the defendant after from taken samples sustained the defend- Court The District accident. aleo- evidence the blood suppress ant’s motion theory hol test of the defendant the test privilege. was within the The de- denying filed fendant then an amended answer the time he was intoxicated at accident and al- plaintiff’s leging risk, that the decedent assumed the specifications along negligence with other on the part, essence, which, decedent’s were failure to approaching danger warn of and failure to have seat place belt in and fastened. jury.

The case was tried to At the close plaintiff’s case, the defendant moved for a directed verdict. The Court District sustained this motion. trial, filed a motion new which appeals. overruled, and now affirm We judgment of the District Court. plaintiff’s primary appeal contention on con- admissibility

cerns of the results of a blood alco- hol test conducted on blood from taken shortly brought defendant after he had been hospital. The results this of test showed an alcohol percent content of the 0.10 defendant’s blood at sample approximately withdrawn, the time the was 2y2 hours after the accident. The District Court held that missible the results the blood alcohol test were inad- privilege. the

due to plaintiff argues that the blood alcohol test results privileged they that, are, are not if by was waived the defendant. following

The record reveals the facts relevant to taking sample of a blood from the defendant. place approximately The accident on March took at 3:12 a.m. 1974. At 4:11 a.m. Officer Harris Patrol State arrived at the At accident scene. 4:50 a.m. ambulances at arrived the accident scene. Of- accompanied ficer Harris Bridgeport the ambulances to the hospital, they approxi- where arrived at mately 5:30 a.m. Branch was taken to emer- by gency room and attended Dr. to Blackstone. x-ray was taken to the room Wilkinson and attended to Dr. Post. Wilkinson unconscious by was when At trial Dr. Post testified: brought hospital. “I an for made order the usual or profile battery tests to evaluate blood general condition.” Hadden, time, Techologist on call at the stated in a that she was Dr. deposition directed Post to draw Branch, sample a blood from both Wilkinson and that after she sample drew from Wil- kinson, she placed it in the refrigerator. The blood Wilkinson, sample which was tested for alcohol labeled, Wilkinson, Oshkosh, content was “John 5:35 3-9-74, B. a.m. Hadden.” After Dr. Post had been minutes, with Wilkinson for 15 or 20 he was inter- rupted by Nurse Bateman concerning Branch. He Branch, proceeded who died shortly thereafter at 6:07 a.m.

In her deposition, Mrs. Hadden stated that blood alcohol sample from Wilkinson was given to the State Patrol. She stated: “This was the order it, from Dr. Post if they requested it was to be them. given They did it the request following morn- ing.” She stated that she believed Officer Hansen of Patrol, the State who hospital arrived at the shortly arrived, after the ambulances requested the sample. She stated that she did not whether know Officer spoke Hansen to Dr. Post previously concerning not; her he asked the blood sample; and that she it to him. gave Lott,

Roger county attorney County of Morrill at time, that he arrived the hospital testified shortly after Branch had died. He stated that discussed with possibility drinking Officers Harris and Hansen before the three left at 7:39 a.m. scene. Lott testified that inspect the accident he ascertained that a blood alcohol had been taken from and that he had a conversation Wilkinson with one of the State Patrol officers concerning sample of the blood alcohol from Wilkinson. taking that he did not specifically request He stated sample sample doctor to take the but knew that a had been taken. He testified that he had a discus- concerning sion with Officers Harris and Hansen policy respect with to the blood alcohol policy was told that it was the of the State Patrol any patrolman on take blood test state who was in- personal injury fatality volved in either a or acci- personal knowledge dent. Lott stated that he had no that the blood had been obtained the State provided Patrol, but later the State Patrol him with the results of the test. He stated that he was told that Officer Hansen took the test to Scottsbluff and understanding it that was his the test would be ob- hospital morning tained from the and taken to Scottsbluff. deposition, following exchange

In Dr. Post’s place: took your

“Q. patient, In the course of the treatment of you, yourself, any would or have reason need de- patient? sire for a blood alcohol test of the my patients “A. Yes. It is custom that suffer any injury, reason, kind of head for whatever I ask any blood alcohol if there is evidence whatso- * * * Also, ever that it’s needed. we test for diabetes. question Well, you

“Q. was whether or not patient needed the blood alcohol test to treat particular time? entry shortly “A. On thereafter?

“Q. Or thereafter. knowledge “A. I believe the of blood alcohol pertinent important place would have treatment in the patient. this developed, though, “Q. it As whether or not Mr. did Wilkinson have some alcohol content in his blood was not a critical factor? * * “A. This is true support

In an filed affidavit defendant suppress, Dr. Post his motion stated that performed blood alcohol test Wilkinson as a pa- unconscious for an procedure normal diagnostic tient; requested official that no law enforcement Wilkinson; test be taken from that a blood alcohol he had a dis- after the test was taken that sometime Lott, con- county attorney, Roger cussion with taken; he a test had been that cerning whether such taken; that that such a test had been informed Lott Patrol; to him or the State and that it was available him he wanted the test. Lott told The presented: is thus following picture from sample blood was withdrawn Wilkinson at 5:35 a.m., arrived within minutes after the ambulances at Dr. Post that he ordered hospital. testified from Wilkinson. Of- sample the blood be taken hospital ficer Hansen did not arrive at the until 5:42 a.m., after Branch county attorney and the arrived Thus, had died. the time the blood was sample taken, Officer Harris was the law enforcement only person present, having arrived with ambulances. absolutely There is no evidence in the record that Harris Dr. to withdraw the requested Officer Post from Dr. Post sample blood Wilkinson. testified as to the medical reasons a blood obtaining sample Later, Hansen, from Officers Harris and Wilkinson. attorney possibility Lott discussed the of county in the accident. It as- drinking being involved certained that a blood had been taken from sample Wilkinson and was available for a blood alcohol test. Dr. Post made the available to either Lott or sample Patrol, the State and later the State Patrol obtained from and conducted Mrs. Hadden a blood alcohol test on it in Scottsbluff.

The question initially which we must decide on ap- peal whether the District Court was correct suppressing to admit into evidence refusing results of the blood alcohol conducted test taken from the defendant on the ground said contemplation results were within the. the physician-patient privilege. present stating physician-patient statute

privilege 27-504, 1943, is section R. S. R. the Ne- adoption braska Rules Evidence. Prior to the privilege 27-504, R. R. section S. was found 25-1206, law, in section R. R. S. 1943. At common privilege. there was no Simonsen (1920). Swenson, 177 N. W. 831 We granting have held that the statute strictly being derogation construed, should be Co., common law. Culver v. Union Pacific R.R. (1924). 441, party seeking Neb. 199 N. W. 794 to proof exclude evidence has the burden of to show by physician the information was obtained the professional capacity during relationship in his his patient. Stapleton Chicago, with the Q. v. B. & R.R. (1917). Co., object 201, 101 Neb. 162 N. W. 644 patient the statute is to enable the to secure medical betrayal, disqual- services without fear of and not to ify physicians Falkinburg as witnesses. v. Pruden- America, 831, tial Ins. Co. of N. 273 W. 478 (1937). See, also, 2d, p. Witnesses, 231, 81 Am. § Jur. 262.

The essential elements which must exist before privilege apply generally the can are to said be as (1) (2) physician-patient relationship: follows: A in- (3) acquired during relationship; formation this and necessity propriety the and of this information to en- physician patient skillfully able the to treat in his professional capacity. privilege apply,

In order to there must physician-patient relationship. exist a This relation- ship by be can formed the fact of treatment an in- jured person by physician. Staat, In State v. Minn. 192 N. W. 2d 192

(1971), hospital physicians it held was that where required give diagnosis to were and treatment to brought defendant hospital was who in unconscious to the emergency room, a relation- confidential ship developed hospi- between defendant and physician. state unconscious The defendant’s

tal relationship. against In Carlton militate did not Angeles County, Superior 261 Cal. Court of Los (1968), Rptr. App. it was held that 2d 67 Cal. patient relationship physician existed be- and motorist, who was taken to the the defendant tween hospital injuries in an sustained ac- for treatment hospital physicians cident, who under- diagnose, examine, and furnish curative took to treatment hospital time of his arrival at the from the relationship discharge. A his until brought clearly Wilkinson, who was existed between hospital unconscious, Dr. Post who was upon him. to examine and treat called The blood from Wilkinson withdrawn Hadden at the direction of Dr. Post. The Mrs. only physi- physician-patient privilege extends not agents cians but to their as well. Co., in Culver R.R.

As stated v. Union Pacific professional assisting physician “A nurse supra: such to whom been made confidential communications have patient agent physician. is an of the stands in the same She relation confidence to the may testify patient permitted not be to such unless has communications been by patient.” waived the

The next to be factor determined is whether the sample blood extraction of a comes within the con- templation privilege. physician-patient of the The privilege protects patient only by not statements made the physician, but also facts obtained physician by Bry- the observation or examination. America, 372, v. ant Modern Woodmen of 86 Neb. 125 (1910). Stapleton Chicago, N. W. 621 In v. B. Q. & Co., it R.R. was held thát when one submits supra, acquired knowledge examination, to an physician so privileged. Freeburg State, is In v. 92 (1912), 346, 138 143 Neb. N. W. it was held that a doc- defendant, tor dressed the who wound of the who

657 incompetent drunkenness, was accused was under reciting physician-patient privi- the statute then testify lege to as to his observations of the defend- during ant’s drunken condition treatment. taking sample patient

The a blood from a clearly contemplation physi- comes within the of the cian-patient privilege. plaintiff The cites Su- preme California, case of Court Schmerber v. 384 U. (1966), 757, 1826, S. 86 Ct. S. 16 L. Ed. 2d 908 which recognizes the distinction drawn between oral com- physical e.g., evidence, munications a blood sample, purposes See, for Fifth Amendment. also, Oleson, 546, State v. 180 Neb. 143 W. 2d 917 N. (1966); Swayze, 149, v. State Neb. 197 247 N. W. 2d (1976). plaintiff points out that section 27- speaks 1943, R. R. S. of “communications” be- physician patient argues, tween the based upon sample above, that the blood is not a “com- only munication.” The above distinction is relevant analysis application to Fifth Amendment and has no physician-patient privilege. to the analysis Extraction and sample clearly

of blood is within the con- templation privilege. of the argues physician-patient

privilege apply not does to the results of the blood al- provisions implied cohol test because of the of the statute, 39-669.08, consent section R. R. S. 1943. It pursuant has been that a held secured implied to an consent statute not within information purposes of a statute only because the is taken for blood alcohol diagnosis pa- tests for and not or treatment of e.g., See, Erickson, tient. State W. 2d 854 N. (N.D., 1976). Howard, In State v. 2d 391 N. W. (1975), provisions implied we held: con- “The of the applicable only prosecutions sent are statutes arising alleged offenses been out of acts to have person driving committed was while 658 physical

the actual control of a motor vehicle while liquor.” under the influence of alcoholic We have implied also held that for an consent to be effective person from whom the blood taken is custody must have been arrested or else taken into given. Baker, before the test State v. 184 Neb. (1969); Prigge 724, Johns, 171 N. 2d 798 W. (1969). 103, 165 N. W. 2d 559 This Neb. case is a civil wrongful prosecution. action, death, not a criminal custody. The defendant was never under arrest or in implied application consent statute has no here. privileged, during To be information obtained physician-patient relationship of a existence must be necessary physician properly to enable the dis- charge Wigmore See, Evidence, his duties. VIII 1961); (McNaughton Ed., § 2383 Rev. Koskovich v. (1921). Rodestock, 116, 107 Neb. 185 N. W. 343 Where purpose, the information is not obtained for this it is privileged. State, not Nichols v. 191 N. (1922). W. 333 (Iowa 1971), Bedel, In State v. 193 N. 2d 121 W. court found that neither the certification to withdraw following driving the defendant’s blood his arrest for intoxicated, itself, while nor the blood test were re- diagnosis lated to either medical or treatment of the privi- defendant, and held that the results were not leged necessary showing they because there was no were proper physician to enable the patient. physician treat did not see the de- personally morning, fendant until next nor was any showing there that the nurse was ordered doctor to take the test. Woodhouse,

In Hanlon v. 113 Colo. 160 P. 2d (1945), holding court, in a civil action that was not violated testimony analysis the doctor’s of a blood while he was unconscious showed sufficient blood al- to the effect that an taken from the defendant driver drunkenness, cohol to cause a state of stated that necessary to en- not test was alcohol the blood since properly physician af- the defendant to treat able in obedience accident, made was rather but ter the police officer, request not encom- it was from a to a passed privilege. physician-patient Super. 597, Amaniera, 334 A. 132 J.N. In State v. (1974), police fact the that the court held 2d 398 acting prevented standing by to from and were were ongoing only by request reason of the test a blood being given after to the defendant medical attention emergency hospital treat- for was taken to he pre- following did not accident ment an automobile privi- application of the clude performed lege of for alcohol to the results tests physician’s pursuant blood, the defendant’s reasons. motivated medical order which was Ragsdale State, 296, 432 S. 2d 11 In v. 245 Ark. W. (1968), held that the result of a blood alco- the court purpose pro- on the defendant for the hol test run treating injury, scribing which was sus- his per- in one police in automobile accident which tained an request killed, not at the of a offi- son was attorney, privileged. prosecuting or the was cer (1958), State, E. 239 Ind. 154 N. 2d Alder v. involuntary manslaughter. prosecution for involved a While lying appellant was uncon- in that case hospital, physician on call who was in the a scious appellant sample in order to from the took a blood giving type preparatory him to his blood determine officer, who was A Police State a blood transfusion. physician requested present time, to take at the pur- appellant’s sample him for the blood for of the physi- making pose test. After an alcoholic blood, 15 cubic centimeters had drawn about cian assisting present nurse, who was he instructed him, officer, give Police to the State to one-half it Police the State then forwarded the who appel- analysis. laboratory Indianapolis physi- to allow it error lant contended that was testify cian to that he took the from the appellant privileged. because the transaction was Supreme agreed ap- Court of Indiana with the pellant’s support holding, contention. In of its previous Chicago, decisions, cited one of court its S. Ry. Walas, L. B. & S. Co. v. 192 Ind. 135 N. E. (1922), physician in which it had held that a was precluded testifying opinion from as to his of the de- upon fendant’s intoxicated status based his observa- emergency tions the defendant in the room. We holding note that the Walas case is similar its Freeburg supra. case, State, our The Indiana physician may testify court stated: “If a not from opinion patient observation whether or not in his on whom he was about to perform operation an logically intoxicated, it would seem to follow that a physician may patient’s not, consent, without give sample of his blood which he had drawn ‘in professional police- the course of his business’ to a pur- content, man to ascertain the alcoholic for the pose determining patient of whether or not such intoxicating liq- at the time under the influence of 75, uor.” 239 Ind. at 154N. E. 2d at 720.

The court further stated: “In the case at bar the in patient completely was unconscious and was physician. If, trust and care of the under such cir- physician prohibited by cumstances, statute testifying from as to the intoxicated condition of the patient, prohibit opinion it is our that the statute would also

testimony physician concerning of a sample patient of blood which he took from the caused to be delivered to the State Police officer to determining be used the alcoholic content of the clearly blood. This was information obtained physician ‘in the sick room’ and it was error to over- testimony concerning appellant’s objection rule the same” 239 Ind. at 154 E. 2d 720. N. at sample Dr. Post testified that he the blood ordered withdrawn from the He that it defendant. stated earlier, was done As for medical reasons. stated sample there is no evidence that the was withdrawn request any law enforcement officer. The fact the was later made available to law en- purposes authorities forcement blood alco- testing privileged did not hol effect its status. We hold that the blood and the results privileged physi- test blood alcohol were under the cian-patient privilege. plaintiff draws our attention to the rule cur- (4)(c),

rently stated in section 27-504 R. R. S. privilege the effect that there is no regarding physical, communications relevant patient any mental, or emotional condition of the proceeding patient places in which the his condition issue, claim, into either as an element of his or de- petition plaintiff alleged fense. In her answer, defendant was intoxicated. In his amended the defendant denied that he was under the influence liquor perceptible degree. of alcoholic to a argues denying allegations thus her put physical intoxication, the defendant his condi- privilege regarding tion into issue thus no exists disagree matters relevant to that issue. We with the plaintiff’s contention. Superior Angeles County,

In Carlton v. Court Los here, the court stated: far as “So relevant supraj 996 of the section Evidence Code reads: ‘There is no this under as to a article communication concerning relevant to an issue the condition of the (a) patient by: if issue such has been tendered the * * patient by *.’ Plaintiff contends that his denial allegation complaint the the that defendant was accident, the intoxicated at time of the defendant concerning ‘tendered’ the issue his condition which by be must decided the court at the trial of the ac- * * * agree tion. We cannot with this contention. “We hold that the case before us does not fall exception by plaintiff, within relied and that 662 privilege entitled the benefit of the defendant to

* * App. Rptr. 289, 290, 2d at 67 Cal. Cal. 573. purpose patient-litigant exception behind the

The privilege prevent is to making patient from his condition an element of the dispute, privilege prevent and then invoke the opposing party ascertaining from the true condition patient. exception of the We do not believe that this patient merely be should invoked where the denies allegations by opposing party concerning his adopt plaintiff’s argument, condition. Were we to placed position the defendant would be in the of either admitting plaintiff’s allegations intoxication, foregoing privilege. else We do not believe that physician-litigant exception was intended to such a work result. argued physician-patient priv-

It is that even if the ilege attached blood and the blood al- by results, cohol test it was waived the defendant. plaintiff finds a waiver in instances. two deposition, during defendant, In his examina- plaintiff’s objections, tion counsel and over stated that he was aware that a blood alcohol test had been conducted on him and that his mother and per- father told him that alcohol was 0.10 privi- cent. We do not find this to be a waiver of the lege. State, In Larson v. Neb. N. W. 894 (1912), defendant, it was held that where the without objection, torney upon questions prosecuting answered of the at- relating

cross-examination to treatment physician physician’s opinion his and the of his physician-pa- condition there was no waiver of the privilege by tient the defendant. also contends the defendant presence when,

waived the in his and the presence Roger county counsel, Lott, of his Morrill attorney, during read into the record the coroner’s inquest into L. Branch the death of Hubert the re- suits of the hlood alcohol test conducted on the blood plaintiff obtained from the defendant. The argues object that defendant’s failure to constituted waiver. After the blood alcohol test results were county attorney, read into the record county attorney gave opportunity counsel objections. opportunity, make however, This re- reading lated not to the of the blood alcohol test re- record, sults into the but rather to the back half of report put an accident into the record at the same time. This was not a waiver. according waiver, generally accepted

‘‘A voluntary definition, relinquish- is the and intentional right, privilege.” claim, ment of a known 28 Am. Estoppel 2d, p. Waiver, ap- Jur. § 836. It is parent from the record that the blood alcohol test people. results of Wilkinson were known to numerous any record, however, is devoid of indication that any the defendant had control over the dissemina- opportunity information, pre- tion this to halt or approved it, or vent that he it. There is no evidence in the record that the defendant ever made the re- persons. sults of test known to third Finding the taken from the de- fendant the results of the blood alcohol test are privilege, failing within any privilege by find waiver of defendant, it grant- follows that the District Court was correct ing suppress the defendant’s motion to and in refus- ing to allow the test results to come into evidence. or not the

Next to be determined is whether defend- was entitled to the directed verdict he obtained ant plaintiff’s for the close of the case. rules after of this matter were stated in Collins v. our review Supply Co., 2d Herman Nut & 195Neb. 240 N. W. “ (1976): testing sufficiency ‘In of the evidence determining propriety verdict, of a directed facts is entitled to have all controverted favor, to have the resolved her and she is entitled every reasonably benefits of inference that can be ** * drawn from the evidence. Where the facts ad- duced to sustain an are issue such that but one con- applicable can be clusion drawn when related to the duty question law, it is the of the court to decide the ” jury.’ as a matter of law and not submit it to a recover, In order for the to she had to show that the defendant was either intoxicated or guilty gross negligence. p.m. plaintiff’s 8, 1974,

Around 11 on March the de- together cedent and the defendant were observed at lounge Club, by Cynthia Kay Gering, the Stable Nebraska, a restaurant Baum and several of her girl friends, Earle, friends. One of these Joan testi- drinking fied that the defendant was a beer when she first observed him and that he ordered another beer evening. drinking “Olympia” later that He was Branch, recalled, beer. she had a mixed drink and Branch, did not order son, a beer. John decedent’s pre- testified beer, that his father never drank but Cynthia Kay expressed ferred mixed drinks. Baum opinion her that neither Branch nor the defendant appeared they to be intoxicated when all left the approximately Stable Club at 1:15 a.m. She did not anything see pack- out, the defendant take such as aged liquor. upon that, Joan Earle testified based her defendant, observations of the “I didn’t feel he was at all intoxicated.” She did not see the defend- buy any they ant beer to take out when left. happened There is no evidence as to what between a.m., 1:15 a.m. and 3:12 the time of the accident. It approximately Bridge- 45 miles from Scottsbluff to port, approximately Bridgeport 25 miles from to the Harris, scene of the accident. Officer who first accompanied arrived at the accident scene and hospital, ambulances smelled to the testified that he had not any any odor of alcohol or seen evidence of Kling alcohol in the car. Officer who arrived at the help Harris, scene to Officer and who remained be- left, hind after the ambulances observed two full “Olympia” beer in car. Two three cans empty “Olympia” also

cans were observed proximity Post, of the Dr. vehicle sometime later. upon defendant, was called who treat stated detecting he did not remember that odor alco- upon hol while defendant’s breath he was treat- ing him.

The evidence adduced on the issue of intoxication totally insufficient to warrant submission of that jury. jury finding, upon issue to the A based evidence, above the defendant was intoxicated only at time of the accident could be the result of speculation conjecture. evidence, There was no concerning all, effect the defendant of the Raskey alcohol he consumed. As was stated in (1970): Hulewicz, 177 N. W. 2d 744 presented “Where there is no evidence as to the ef- upon part parties fect of intoxicants of the in- proper volved, directly it is not submit issue jury.” Highway 26, accident occurred on U.S. No. Bridgeport, fairly of east Nebraska. The area is straight, slight just level and the road west where the accident ris observed no with a curve place. of took Officer Har- highway on the obstructions and ob- paved highway served that surface of the was only slightly higher than the shoulder of the road. any did Officer Harris not or recall moisture dew on proceeding the road. The vehicle defendant’s was easterly Starting an in direction. where the road slight left, curve takes left the defendant’s car highway. completely It traveled off the paved surface, road, on the of the shoulder about paved feet, after which it back came onto the surface, centerline, crossed crossed the west- highway, impacted lane bound north-west with the bridge corner a concrete abutment. bridge striking abutment, After the defendant’s ground, air, 69 feet in the struck the car traveled further, feet or traveled 36 then rolled was airborne ground feet, time, another 31 hit a third on, to rest another 23 feet further or 159 came feet point totally impact. from the The car was de- engine molished, torn out of car. Debris was along trajectory of the automobile. strewn Pawling, 679, In Luther v. 195 Neb. 240 N. 2d 42 W. (1976), negligence we stated: within “Gross meaning guest of the motor vehicle statute means gross negligence negligence and excessive or in a very high degree; slight the absence of care in the performance duty; an entire failure exercise slight degree care; or the exercise of so of care as justify to the momentary the belief that there was an indifference to * * * safety Negligence purely of others. that is generally in nature does not constitute * * * gross negligence. proving The burden of cause action is not sustained evidence from jury only by which the can arrive at its conclusion * ** guess conjecture. Negligence mere or is never presumed.” happening occurring

The mere of a one-car ac- bridge not, cident with a or culvert abutment does as justify gross negli- law, a matter of an inference of gence under our decisions.

Resolving plaintiff, all inferences favor of the as required gross negli- do, arewe we cannot infer gence foregoing from the facts. There is no evi- as to dence what caused this accident. The inference strong negligence, any, that defendant’s if momentary Pawling, supra; in nature. Luther v. Brugh Peterson, 183 Neb. 159 N. W. 2d 321 (1968); Maragues, Boismier v. 126 N. (1964). 2d 844 W. granting

The District Court was correct the de- fendant’s motion for a directed verdict.

We have examined the other issues raised plaintiff and find them either to be without merit light holdings, unnecessary or, of our above discuss. judgment

The of the District Court is correct and is affirmed. Affirmed. dissenting. J., C.

White, Thomas, momentary The doctrine of inattention is now ex- justify tended to the direction of a verdict the fol- lowing facts:

(1) open highway slight On a curve, clear with a operates host driver car his 468 feet on the shoulder highway, upon of a comes back and then across the right-hand lane, impacts lane, into the left-hand bridge with a abutment on the left-hand side.

(2) through collision, After the the car travels ground, feet, air 69 strikes the travels another 36 feet through air, and lands and either rolls travels through the air another 31 feet.

(3) engine totally of the car is torn from the lying car, 3 to 4 feet from the car. The car demol- ished.

juryA could find from the circumstances easily (1) following negligence: acts recited Unrea- (2) speed circumstances; sonable under the failure (3) proper lookout; to exercise a failure to have proper the vehicle under control. defendant, as called a hostile witness

plaintiff, interroga- admitted that in his answers to expert testify tories he his stated witness would speed of defendant’s automobile could not have ex- per hour, which, 64.1 ceeded miles another act if the support finding submitted, cause had been would negligence. negligence alleged, The several acts of when con- together, support fairly finding sidered would gross negligence had the cause submitted. been See Mattson, Demont v. 196 N. 2d 190. W. majority opinion, In view of the decision relating discussion unnecessary and dicta. adequate proof in the no offer of trial

There was merely prove offered to the not court. weight percent and did of alcohol the blood expert testimony prove by the effect suitable offer thereof. Raskey Hulewicz, 608, 177 N. v. W. 744. 2d conjunction

“If be relevant with evidence would yet record, not in the the offer should be other facts prove accompanied facts an offer to those at the proper p. S., See, Trial, time.” § 88 C. J. 185. (2d p. also, Evidence, Ed., § McCormick on 1972). admissibility of alcohol

The issue of the blood test properly us not is not before and should have results been considered. join JJ., in this dissent. Clinton,

McCown America, AFL-CIO, Communication Workers City municipal appellee, Hastings, Nebraska, appellants. al., corporation, et 254 N. W. 2d 15, 1977. 41041.

Filed June No.

Case Details

Case Name: Branch v. Wilkinson

Court Name: Nebraska Supreme Court

Date Published: Jun 15, 1977

Citation: 256 N.W.2d 307

Docket Number: 40893

Court Abbreviation: Neb.