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JOHN WILEY CLARK AND WIFE4/15/1987
on a .22 level at 3:30, Bosarge should have been at about 1.6 at 6:30. It is nowhere to be found in the evidence in this record, but Raymond Brown, attorney for the City of Pascagoula, stated (without objection) during closing argument that the reason the blood alcohol level would not have changed significantly from the time of death until the second blood test was made at 10:30 a.m. was that the liver stopped functioning to filter out alcohol.
The plaintiffs attempted to make out a case that the City of Pascagoula was negligent for failing to follow their standard practice of restraining drunken drivers for five hours before releasing them on bond. Several policemen testified that the alleged" five-hour rule "was only a guideline, and that a decision was made to keep someone or let them go based upon the specific circumstances of that case. Authority rested with the shift captain, and the testimony was to the effect that bonding out was allowed if the person taking custody of the person was responsible.
After this evidence, the plaintiffs attempted to offer two witnesses in rebuttal. Luther Kuykendall and Francis Larson both would have testified that they had been arrested for DUI and told that they could not be released to anyone for five hours. Additionally, Kuykendall would have testified to seeing Bosarge at Silver's Lounge, intoxicated, on the night before the accident. However, since their arrests did not occur until 1983 or 1984, three or four years after the arrest of Bosarge, the court disallowed their testimony.
The case went to the jury with instructions requested by the defendants on superseding and intervening cause. In particular, 4D1, 4D2, and 4D3 were substantially the same, and offered for the city, Travel Motor Inn, and Silver's
(and the Velardo's). Instruction 4D1 is set out below:
The Court instructs the jury that a superseding or intervening cause is an independent and unforeseeable act of omission by a third person which follows the negligence, if any, of a defendant and is a substantial factor in causing the plaintiff's injuries and/or damages; thus, a superseding cause becomes a proximate cause for the injuries and/or damages sustained by the plaintiffs, and the negligence, if any, of the defendant becomes a remote cause for which the defendant is not liable.
If you find, from a preponderance of the evidence, that the Defendant, City of Pascagoula, was negligent, but that an independent and unforeseeable negligent act or omission, if any, by a third person, such as (1) entrustment of a vehicle to, or permitting operation of a vehicle by, a person whose condition was such that operation of a vehicle by such person created a danger to that person and to others, if you so believe from a preponderance of the evidence, or (2) operation of a vehicle in a negligent manner, if you so believe from a preponderance of the evidence, were substantial factors in causing the Plaintiffs' injuries and/or damages, then the Defendant, City of Pascagoula, is not liable for the injuries and/or damages which proximately resulted from the superseding cause or causes.
The jury returned a verdict for the defendants.
I. ALLOWING DR. DORE TO TESTIFY.
Although the defendants had never listed Dr. Dore as an expert witness, they called him to correct an earlier error in testimony. Officer Anglada of the Mississippi Highway Patrol testified that the blood test run after Bosarge's death showed a blood alcohol content of .22%, obviously confusing it with the earlier intoxilizer test. Dr. Dore, as a physician who ran the test, was needed as a witness to clarify the error.
This testi
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