Nichols v. McCoy

240 P.2d 569, 38 Cal. 2d 447, 1952 Cal. LEXIS 193

• Court: California Supreme Court
• Decided: February 21, 1952
• Docket: L. A. 22173
• Status: Published

Opinions

TRAYNOR, J.

Plaintiff brought this action for the wrongful death of his father, who was struck and killed by defendant’s automobile while attempting to cross San Fernando Road on foot. The accident occurred in the early evening at or near a poorly lighted pedestrian crosswalk. There was evidence from which the jury could infer that defendant was negligent in failing to yield the right of way to decedent or in failing to observe him crossing the highway until the moment of impact. There was a conflict in the evidence as to whether or not decedent was in the crosswalk, and the jury could infer that he was negligent in walking or running into the path of defendant’s automobile. The jury returned a verdict for defendant upon which judgment was entered, and plaintiff has appealed.

Plaintiff’s only contention is that the trial court erred in allowing the head toxicologist of the Los Angeles County coroner’s office to testify to the contents of an official record of his office. The record stated that a test made of the blood of decedent indicated the presence of 0.11 per cent alcohol. Plaintiff made no objection in the trial court to the fact that the record was proved by allowing the witness to testify to its contents rather than by introducing the paper itself in evidence, and accordingly, it is now too late to object to the manner in which the evidence of the record was presented. (Estate of Huston, 163 Cal. 166, 173 [124 P. 852].) Plaintiff contends, however, that it was prejudicially erroneous to admit the results of the test in evidence, on the ground that there was no proof that the blood tested was that of decedent. (See People v. Smith, 55 Cal.App. 324, 327 [203 P. 816]; American Mut. Liab. Ins. Co. v. Industrial Acc. Com., 78 Cal.App.2d 493, 496-497 [178 P.2d 40].) Defendant, on the other hand, contends that under sections 1920 and 1953e-1953h of the Code of Civil Procedure, the record of the coroner’s office was admissible to prove all the facts stated therein, including the source of the blood, and that in any event there was sufficient additional evidence to prove that the blood referred to in the coroner’s record was that of decedent.

Since we have concluded that the challenged record was admissible under the Uniform Business Records as Evidence Act (Code. Civ. Proc., §§ 1953e-1953h), it is unnecessary to decide whether it was also admissible under section 1920 of the Code of Civil Procedure. Section 1953e provides: ‘ ‘ The term ‘business’ as used in this article shall include every kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not.” Section 1953f provides: “A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.” In McGowan v. City of Los Angeles, 100 Cal.App.2d 386 [223 P.2d 862], it was the opinion of the trial court that the sources of information, method and time of preparation of the record in question were not such as to justify its admission. In that case neither the embalmer nor any other witness from the mortuary testified as to the procedure followed in taking blood samples, and the trial court was therefore justified in concluding that the proper foundation had not been laid. In the present case, however, the trial court concluded that a proper foundation had been laid, and the evidence supports this ruling. There was evidence that as part of the regular operation of the coroner’s office, blood samples were collected from undertakers for the purpose of analysis. An analysis was made from a sample taken from a bottle bearing decedent’s name. The embalmer testified that he took the sample before embalming the body, labeled the bottle, and left it for an employee of the coroner’s office to pick up. He was informed of the name of decedent at the time of the embalming and again the next day when his employer had him sign the embalming certificate. It was not necessary that he have personal knowledge of the identity of decedent. (Loper v. Morrison, 23 Cal.2d 600, 608-609 [145 P.2d 1].) The trial court was justified in concluding that the embalmer’s sources of information with respect to the identity of decedent were accurate and that he would not label a bottle of blood with decedent’s name unless he were reasonably sure that it was decedent’s. (See Health & Saf. Code, § 10451.) “It is the object of the business records' statutes to eliminate the necessity of calling each witness, and to substitute the record of the transaction or event.” (Loper v. Morrison, supra, 23 Cal.2d 600, 608.) Accordingly, it was unnecessary to call the witness who supplied the embalmer with the information he recorded.

Aside, however, from the evidence provided by the record itself, there was additional evidence that the blood in the bottle labeled with decedent’s name was his blood. Decedent’s daughter-in-law testified that his body was taken to the Pasehall Mortuary shortly after the accident. The embalmer testified that he took a sample of blood from the only body in the mortuary that night and labeled it with decedent’s name. Since decedent’s body was in the mortuary, and since there was only one body there, it is clear that the sample of blood taken was that of decedent. It is immaterial, therefore, whether or not the embalmer knew personally the identity of decedent. A sufficient foundation was laid to justify the trial court’s conclusion that the blood tested by the coroner’s office was decedent’s, and accordingly, there was no error in admitting the record in evidence.

The judgment is affirmed.

Gibson, C. J., Shenk, J., Edmonds, J., and Spence, J., concurred.