Citations
- 169 Ohio St. 145
Full opinion text
Taft, J.
Plaintiff’s first assignment of error is that “the Court of Appeals erred in reversing and not in affirming the judgment of the ’ ’ trial court; and it will be considered with the fifth assignment that “the judgment of the Court of Appeals is contrary to law” and with the fourth assignment that “the Court of Appeals erred in finding and holding that the Court of Common Pleas erred in submitting to the jury the issue of driving under the influence of alcohol by the defendant’s decedent.”
The only evidence which plaintiff relies upon with respect to that issue is defendant’s exhibit 32ZZ, the testimony of a state highway patrolman and the testimony of a police officer who made a laboratory analysis of decedent’s blood.
Defendant’s'exhibit 32ZZ is a four-page written report of the accident, rendered on an accident report form by two Toledo patrolmen to an inspector of the Toledo Police Department, and was offered by defendant, after identification by the Toledo Law Director, “solely for the purpose of impeaching” the testimony of the driver of the police car. Plaintiff’s attorney, though not objecting to its admission in evidence when offered, stated that he did “not think it * * * competent.” The portion now relied upon by plaintiff as evidence that decedent was under the influence of alcohol reads:
“In answer to my question (Officer Warner) as to whether Mr. Weilnau had any alcoholic beverage, Mr. Weilnau stated yes, that he had a small drink before dinner and also had two Scotch and soda drinks over a period of three hours the last one being about one half hour before the accident. Mr. Weilnau stated he never saw the other car and didn’t know what happened. These statements were made in the presence of both Officers Warner and Beidleman, in Mr. Weilnau’s hospital room * * *."
■The testimony of the state highway patrolman relied upon by plaintiff is as follows:
“Q. Did you make an investigation to determine whether or not Mr. Weilnau had been drinking? A. Yes, sir.
“Q. What did you discover? A. Upon talking to him at the hospital I had to get quite close to hear what he was saying and I noticed the odor of alcohol on his breath and I asked him, inquired if he had been drinking and he said he had a couple of drinks at dinner.”
“ Q. * * * Just what * * * you did in discovering whether or not Mr. Weilnau had been under the influence of liquor? A. I attempted to get a blood test to determine the amount of alcohol he had in his system. ’ ’
“Q. Now, when did you interview Mr. Weilnau at the hospital, at what time? A. I would estimate it was around three o’clock in the morning.
“Q. And at that time you smelled liquor on his breath, didn’t you? A. Yes, sir.”
The testimony of the police officer who made the laboratory analysis of decedent’s blood, relied upon by plaintiff, is as follows :
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