BEFORE PATTERSON, ROY NOBLE LEE and ROBERTSON
ROY NOBLE LEE, JUSTICE, FOR THE COURT:
Rickie Alford was indicted, tried and convicted in the Circuit Court of Jackson County, Honorable Robert Mills, presiding, for manslaughter by culpable negligence resulting from an automobile collision and sentenced to ten (10) years with the Mississippi Department of Corrections. He has appealed and assigns seven errors in the trial below.
On February 21, 1981, around 10 p.m., appellant was driving a 1977 Chevrolet Corvette in a southerly direction on Telephone Road near its intersection with Hospital Road in Pascagoula, Mississippi, and Randy Breedlove was driving a 1978 Ford Fairmont in a northerly direction on said street. Appellant drove his automobile around another southbound vehicle into the northbound lane, colliding headon with the Breedlove vehicle. Mrs. Breedlove was killed in the collision.
Did the lower court err in admitting the testimony of Cheryl Hatten with reference to the withdrawal of a blood sample from appellant in violation of the medical privilege?
Four witnesses testified that appellant was highly
intoxicated. Cheryl Hatten, emergency room nurse, obtained a blood sample from appellant upon the instruction of a Dr. Horn (emergency room physician). Over objection, she explained how the sample was taken and what she did with it and that it was not obtained at the request of police officers. She also testified over objection, that, in her opinion, appellant was intoxicated, based on her observation of him that night. The lower court suppressed evidence indicating the result of the blood test.
Mississippi Code Annotated 13-1-21 (Supp. 1982) is the privileged-communication statute. In Ramon v. State, 387 So. 2d 745, 750 (Miss. 1980), in discussing the application of the statute to nurses, the Court said:
On the question of privileged communications heard or received by nurses, this Court clearly laid down rules to be followed in Mississippi Power & Light Co. v. Jordan, 164 Miss. 174, 143 So. 483 (1932). We do not recede from our pronouncement that if a nurse at the time of receiving medical information was an agent of the physician attending the patient and the nurse's presence was in connection with the physician's treatment, that knowledge is privileged and the testimony would be excluded upon objection.
The Court held in Yazoo & MVR Co. v. Messina, 109 Miss. 143, 67 So. 963 (1915), rev. on other grounds, 240 U.S. 395, 60 L.Ed. 709, 36 S. Ct. 368 (1961), that communications between a physician and patient included not only verbal communication but anything which is revealed by a physical examination.
Intoxication was an important issue in the trial. Four witnesses testified that, in their opinion, appellant was highly intoxicated. Since the results of the blood test were excluded, we do not think that there was a violation of the privileged-communication statute. Testimony of Nurse Hatten that appellant was intoxicated from her observation of him would not constitute reversible error since it was cumulative of the other testimony of intoxication by the State.
Did the lower court err in declining to strike testimony of Patrolman Richard Horn?
Officer Horn was one of the first officers to arrive at the collision scene. He observed the appellant and
described his conduct as loud and boisterous. Officer Horn also testified that he could smell alcohol five to six feet from the car and that appellant was intoxicated. On cross-examination, appellant's attorney questioned Officer Horn as follows:
Q. So other than just the smell or that you smelled alcohol at the car is all you know about whether or not the defendant was ...