Opinion
July 20, 1970
Appeal from judgments of the Supreme Court in favor of plaintiffs and defendant Helen A. Granger (Action No. 1) and in favor of plaintiff Helen A. Granger, as Administratrix (Action No. 2), entered June 18, 1968 and July 11, 1968 in Essex County, upon a verdict rendered at a Trial Term, and from an order of said court, entered July 11, 1968, which denied plaintiffs' motion to set aside the verdict of no cause of action against Helen A. Granger (Action No. 3). These actions arise out of an automobile collision which occurred on the afternoon of October 10, 1965, in the Town of Putnam, Washington County. Defendant Leonard David was operating a 1957 Buick belonging to defendant Wilma Woodard, in a southerly direction on New York State Route 22, and one Bernard Granger was operating a 1959 Volkswagen belonging to the latter in a northerly direction on the same road. The collision occurred at a point where Gull Bay Road enters the State highway from the west. Sally Witherbee David, the plaintiff, who was a passenger in the Woodard automobile, was seriously injured and Bernard Granger was killed either instantly, or as a result of a subsequent explosion and fire, which partially cremated his body. The impact drove the Granger automobile 131 feet south of the intersection and the cars came to rest with the Woodard automobile atop that of Granger's. The sole substantive issue on this appeal concerns the admissibility of the results of a blood alcohol test. Counsel for appellants David and Woodard requested that the results of the blood test performed on a blood sample taken from the decedent Bernard Granger, be received into evidence. In testimony taken outside of the presence of the jury, for the purpose of laying a foundation for the admission, several witnesses testified in an effort to establish its authenticity. The following facts were adduced. After a fire which consumed both cars had been extinguished, Sergeant Russell Guard, of the New York State Police, requested permission from the County Coroner to secure a blood sample from the decedent. The Coroner instructed a funeral director, who had been called to the scene, to take the sample. This he did by holding a vial, given to him by the coroner, under the decedent's head, and allowing the fluid flowing therefrom to drip into it. The contents of this vial were sent to the State Police Laboratory, where analysis revealed it contained .11 of 1% of ethyl alcohol. The Trial Judge refused to admit these results, holding that the blood test had not been administered as required by section 1194 Veh. Traf. of the Vehicle and Traffic Law, and thus the proffered evidence was incompetent. The jury returned verdicts for Sally Witherbee David and her father against defendants David and Woodard only and in the Granger suit a verdict was returned for Helen A. Granger. Appellants Sally Witherbee David and her father moved after entry of the judgments to set aside the verdict of "no cause" in favor of Helen A. Granger, and for judgment to be entered in their favor or a new trial. The court denied the motions. Appellants David and Woodard join with appellants Sally A. Witherbee David and her father in contending that the results of the blood test were properly admissible and that they were prejudiced by the court's failure to allow their use. No testimony was adduced at trial relating to the manner of operation of decedent's car. The driver of the Woodard vehicle, respondent Leonard David, testified only that when he broke over the crest in the road, decedent's car was "right in the middle of the road. It happened in just about a split second." The remaining testimony failed to reveal any circumstances surrounding the accident other than the fact that the Woodard vehicle was traveling at an excessive rate of speed. Admission of the blood test result would not by itself establish decedent's liability but would at most permit an inference to be drawn that he was driving while his ability was impaired. It would still remain to be established whether such impairment was a proximate cause of the accident. ( Cole v. Swagler, 308 N.Y. 325; O'Neil v. Hamill, 22 A.D.2d 691.) Proof of such causal connection may not be supplied by an inference which itself rests upon another inference or presumption ( Lamb v. Union Ry. Co., 195 N.Y. 260). The jury should not be allowed to indulge in speculation and surmise not supported by evidence. Under these circumstances, the ruling of the Trial Judge was correct that the report of the chemical analysis of the blood drippings could not be received in evidence. Judgments and order affirmed, with costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Greenblott, J.