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JOHN WILEY CLARK AND WIFE4/15/1987
BEFORE WALKER, C.J., DAN LEE AND GRIFFIN, JJ:
DAN LEE, JUSTICE, FOR THE COURT:
This action was brought by John Wiley Clark and his wife, Cynthia, to recover for injuries sustained by Clark in a head-on collision with 19-year old Bruce Bosarge on January 10, 1980. Bosarge was killed in the accident. Clark's complaint, filed on March 1, 1983, alleged that Bosarge had become intoxicated at Silver's Lounge on the night before the incident. Silver's was owned and operated by the Velardo's, in space leased to them by the Travel Motor Inn. After leaving the lounge, Bosarge was involved in a minor traffic accident and was arrested for DWI.
He was arrested by Pascagoula Police after the 2:17 a.m. accident, and an intoxilizer test taken at about 3:30 a.m. showed a blood/alcohol result of .22%. Pascagoula police released Bosarge to his mother about an hour later, with instructions to keep him at home in bed for five hours. The fatal accident between Bosarge and Clark occurred approximately 2 1/4 hours after his release, at about 6:45 a.m. Bosarge was killed instantly, and Clark was rendered a quadriplegic. A blood sample drawn from Bosarge's body four hours later, at 10:35 a.m., showed his blood-alcohol content to be .08%.
Clark originally sued the City of Pascagoula, Silver's Lounge, the Velardos, the Estate of Bruce Bosarge, Allstate Insurance, and Home Insurance. Allstate and Home Insurance were dismissed by the trial court prior to trial. The Estate of Bruce Bosarge settled immediately prior to trial by paying the plaintiffs $10,000, which was the amount of Bruce's insurance.
The remaining defendants' case rested primarily on two points: 1) that the blood alcohol test taken after Bruce's death showed that he was not intoxicated at the time of the accident; and 2) that any negligence on their part was superseded by the action of Bosarge's parents in allowing him to drive before five hours had elapsed. Additionally, Travel Motor Inn defended on grounds that it was not the holder of the liquor license under which Bosarge was alleged to be served.
The jury returned a verdict for all of the defendants. The Clarks have appealed, and assign as error forty items, which may be summarized as follows:
1) Allowing Dr. Dore to testify as an expert witness for the defendants, even though he was not listed as a witness for them prior to trial.
2) Allowing evidence of a blood chemical test taken from a sample drawn four hours after Bosarge's death.
3) Excluding testimony from two witnesses for the plaintiffs regarding the alleged practice of Pascagoula Police of keeping DUI offenders in jail for five hours.
4) Excluding testimony of one of the above-mentioned witnesses regarding his seeing Bosarge in Silver's Lounge the night before the accident.
5) Setting aside a default judgment taken against Silver's
Lounge and the Velardo's.
6) Dismissing Allstate Insurance Company and Home Insurance Company.
7) Erroneously instructing the jury that the Bosarge parents' actions, or the negligent driving of Bosarge, could be superseding, intervening causes of Clark's injuries.
FACTS
Nineteen-year-old Bruce Bosarge spent a good part of the late evening and early morning hours of January 9-10, 1980, drinking at Silver's Lounge. Laura Barrett, a waitress for Silver's, testified that she observed him drinking from a highball glass, and her impression was that he was visibly intoxicated.
Silver's was a local disco owned and operated by Michael and Nick Velardo. They leased the space for the lounge fr
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