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LONNIE B. EDWARDS v. WILLIAM C. ELLIS

OCTOBER 02, 1985

LONNIE B. EDWARDS
v.
WILLIAM C. ELLIS



BEFORE WALKER, HAWKINS AND DAN LEE

DAN LEE, JUSTICE, FOR THE COURT:

This appeal is made from a jury verdict and judgment rendered in the Circuit Court of Tate County, where the appellee, Bill Ellis, was awarded $80,000 for personal injuries sustained in an automobile accident. We affirm.

On June 14, 1980, Bill Ellis, a Mississippi Highway Patrolman, was traveling on U. S. Highway 51 near the town of Como in Panola County, Mississippi. At approximately 1:00 o'clock p.m., Ellis clocked an approaching northbound vehicle on radar at 75 miles per hour in a 55 miles per hour zone. When Ellis turned in pursuit of the vehicle,

 the driver fled onto a county gravel road. Eventually the chase led onto a north-south section of gravel road where the collision which gave rise to this case occurred.

 As the vehicle driven by Ellis and the vehicle he was following were proceeding in a southerly direction, the appellant, Lonnie Edwards, was driving a 1979 Ford pickup truck in a northerly direction on the same road. The fleeing vehicle, stirring up a cloud of dust and gravel, passed Edwards's pickup. The pickup and Ellis's patrol car then collided headon on the gravel road.

 Both Edwards and Ellis were injured in the accident. Edwards suffered a broken neck and was unconscious for several weeks. Ellis sustained a laceration and fracture just below the left knee, two fractured ribs and other contusions and abrasions.

 Edwards subsequently filed a declaration against Ellis and the Mississippi Highway Patrol for damages sustained in the collision. The Highway Patrol was dismissed as a defendant and the cause was transferred to the Circuit Court of Tate County. Edwards's claim was eventually settled and dismissed with prejudice.

 Bill Ellis filed a counterclaim against Edwards, charging him with negligence in (a) operating the pickup truck while under the influence of alcohol; (b) failing to drive on the right side of the road; (c) failing to pass on the right half of the road; (d) turning his truck from a direct course when that movement could not be done with reasonable safety; (e) failure to maintain proper control; (f) failing to keep a proper lookout; (g) allowing his vehicle to crash headon on the wrong side of the road; and (h) other ways. Ellis demanded judgment against Edwards in the amount of $500,000 actual and punitive damages, together with costs.

 Edwards answered the counterclaim denying any negligence on his part and charged negligence on the part of Ellis in operating his patrol vehicle at a high rate of speed on a narrow, dusty, gravel road, without just cause. Edwards further asserted that Ellis's negligence was the sole proximate cause of the collision and damages to both parties, and affirmatively pled assumption of risk and contributory negligence on the part of Bill Ellis.

 The appellant, Lonnie Edwards, makes six assignments of error. They are:

 I. The court erred in admitting blood alcohol

 test results: (a) in violation of 63-11-7 of the Mississippi Code; and, (b) in violation of the appellant's medical privilege, which was not waived.

 II. The court erred in allowing the appellee to appear throughout the trial in the uniform of the Mississippi Highway Patrol.

 III. The court erred in allowing expert testimony on the effects of alcohol.

 IV. The court erred in allowing testimony to" reconstruct "the accident.

 V. The court erred in refusing Instruction D-3 on assumption of risk.

 VI. The jury's verdict was grossly excessive.

 I. Did the court err in admitting the results of blood alcohol tests performed on Lonnie Edwards?

 This assignment of error is made in two distinct parts which must be considered separately. The first question is whether the admitted evidence resulted from tests performed pursuant to 63-11-7 Miss. Code Ann. (1972). The alternative question is whether the test results were admitted in violation of Edwards's medical privilege, which is alleged to have not been waived.

 Miss. Code Ann. 63-11-7 (1972) states:

 If any person be unconscious or dead as a result of an accident, or unconscious at the time of arrest or apprehension or when the test is to be administered, or is otherwise in a condition rendering him incapable of refusal, such person shall be subjected to a blood test for the purpose of determining the alcoholic content of his blood . . . if the arresting officer has reasonable grounds to believe the person to have been driving . . . while under the influence of intoxicating liquor. The results of such tests or test however, shall not be used in evidence against such person in any court or before any regulatory body without the consent of the person so tested. . . . [B]lood samples taken under this section shall be used exclusively

 for statistical evaluation of accident causes with safeguards established to protect the identity of such victims and to extend the rights of privileged communications to those engaged in taking, handling and ...


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