Certain general principles applicable to the issue presented need first be recounted to supply the background for a statement of the facts. In Missouri, it has generally been held that in an action to recover damages for injuries sustained in a motor vehicle accident, evidence of intoxication of a party is admissible as a circumstance to be considered along with the other facts in evidence in determining the question of negligence. Jones v. Freese, 743 S.W.2d 454, 456 (Mo.App. 1987); Sewell v. MFA Mut. Ins. Co., 597 S.W.2d 284, 288 (Mo.App. 1980). Evidence of the mere drinking of alcohol, however, as opposed to actual intoxication is admissible only when coupled with evidence of erratic driving, Jones, 743 S.W.2d at 456; Boehm v. St. Louis Pub. Serv. Co., 368 S.W.2d 361, 372 (Mo. 1963); Cheatham v. Chartrau, 237 Mo.App. 793, 800-01, 176 S.W.2d 865, 868 (1944), or some other circumstance from which it might be inferred that defendant had an impaired physical condition at the time of the collision.
The court invoked the "other circumstances" exception to infer impairment. 597 S.W.2d 284, 290 (Mo. App. 1980). Likewise, in Parry, supra, a test showing a blood alcohol content below the legal limit was admissible because failure to take evasive action was not erratic driving, but was other circumstances inferring impairment.
In the present case, even if it were assumed that Fair's blood alcohol was relevant to show Fair was driving while intoxicated, there still would not be a single operative fact to support an inference that Fair's intoxication would cause him to drive erratically or to support the additional inference that his inferred erratic driving caused the collision. Thus, evidence of Fair's blood alcohol concentration was not relevant, Doisy v. Edwards, 398 S.W.2d 846, 849-50 (Mo. 1966); Bohn v. James, 573 S.W.2d 448, 449 (Mo.App. 1978); Cheatham v. Chartrau, 237 Mo.App. 793, 176 S.W.2d 865, 868 (1944); see Sewall v. M. F. A. Mutual Ins. Co., 597 S.W.2d 284 (Mo. App. 1980), and the trial court's ruling was correct. Judgment affirmed.
By disdaining to set forth the language of the challenged instructions anywhere in its brief, defendant is in gross violation of Rule 84.04(e) and has preserved nothing for review relating to instructional error. Sewell v. M.F.A. Mutual Insurance Co., 597 S.W.2d 284, 290 (Mo.App. 1980); East v. Landmark Central Bank Trust Co., 585 S.W.2d 222, 225 (Mo.App. 1979). However, serendipity graces defendant in that its point that a directed verdict should have been given is viable and meritorious.