
    HUBENSCHMIDT v SHEARS
    Evidence — Negligence—-Protective Orders — Blood-Alcohol Tests —Wrongful Death Action — Medical Examiner — Official Acts — Statutes.
    A protective order precluding testimony, tests or records from being admitted into evidence relative to the alcohol level of plaintiffs decedent at the time of her death was properly granted in a wrongful death action where the evidence sought to be excluded was the report of a deputy medical examiner who conducted a blood-alcohol sample test on the decedent and the taking of blood-alcohol was not a necessary official act of the deputy medical examiner (MCLA 52.205; MSA 5.953[5]).
    Reference for Points in Headnote
    29 Am Jur 2d, Evidence § 830.
    Appeal from Genesee, Harry B. Me Ara, J.
    Submitted October 11, 1977, at Detroit.
    (Docket No. 30722.)
    Decided November 8, 1977.
    Leave to appeal applied for.
    Complaint by Linda Hubenschmidt, administratrix of the estate of Alvaina R. Miller, deceased, against Harold E. Shears for damages for wrongful death. Plaintiffs motion for a protective order precluding testimony, tests or records from being admitted into evidence relative to the alcohol level of plaintiffs decedent’s blood at the time of her death was granted. Defendant appeals by leave granted.
    Affirmed.
    
      Rowe, Talon & Jones, P. C., for plaintiff.
    
      Neal & Lengauer (by Paul Lazar), for defendant.
    
      Before: D. E. Holbrook, P. J., and N. J. Kaufman and J. E. McDonald, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment.
    
   D. E. Holbrook, P. J.

Defendant, Harold Shears, appeals from a protective order precluding testimony, tests or records from being admitted into evidence relative to the alcohol level of plaintiffs decedent’s blood at the time of her death. Trial has not yet been held.

This is a wrongful death action arising from an accident which occurred on July 5, 1975, in Iosco County, Michigan. There has been a stipulated statement of facts filed in this case from which it appears that plaintiffs decedent, Mrs. Alvaina Ruth Miller, was a pedestrian who was struck and killed by a recreational motor vehicle driven by the defendant, Shears.

Decedent was a pedestrian and was walking in a northerly direction, either on the west shoulder of M-65 or on the west edge of the roadway (there is a factual dispute between the parties as to where the decedent was walking at that time), facing oncoming traffic. Defendant, Shears, driving his recreational vehicle in a northerly direction on M-65, pulled out onto the southbound lane to pass another motor vehicle. While in the process of passing that other northbound vehicle, defendant’s vehicle struck plaintiffs decedent.

Thereafter, the remains of the decedent were transported to the Tawas Hospital located in Ta-was, Michigan, and delivered into the custody of the deputy medical examiner for that county. No post mortem was performed. The deputy medical examiner determined that decedent’s death was the result of the physical impact to her body from the defendant’s vehicle. The deputy medical examiner collected a blood specimen from decedent’s remains for the purpose of conducting a chemical analysis to determine the alcohol content in decedent’s blood. Plaintiffs decedent was dead at the time the blood sample was taken; no medical treatment was rendered or to be rendered to plaintiffs decedent by the deputy medical examiner; there was no criminal investigation in process or contemplated and no consent to the taking of the blood sample or its analysis was given by anyone.

Subsequent to the death of plaintiffs decedent, the administratrix of the estate commenced suit in the circuit court for the County of Genesee. Thereafter, plaintiff brought a motion for a protective order for the purpose of preventing the introduction into evidence at the time of trial of the results of the aforementioned chemical analysis pertaining to decedent’s blood-alcohol content. Plaintiffs motion was granted on April 26, 1976.

The issue raised on appeal is whether the trial court erred in granting plaintiffs pretrial motion for a protective order thereby excluding the evidence of decedent’s blood-alcohol content as of the time of her demise.

Defendant has asserted that the blood sample should be admitted because the deputy medical examiner, clothed with the duties of his office, took said blood sample as an official act as medical examiner. Defendant cites MCLA 52.202; MSA 5.953(2), MCLA 52.205; MSA 5.953(5), and MCLA 326.8; MSA 14.228. The only one which is on point is MCLA 52.205; MSA 5.953(5), which provides:

"When a county medical examiner has notice that there has been found or is lying within his county or district the body of a person who is supposed to have come to his death in a manner as indicated in section 3, [MCLA 52.203] he shall forthwith repair to the place where such body lies and take charge of same; and if, on view thereof and personal inquiry into the cause and manner of the death, he deems a further examination necessary, the county medical examiner or his deputy may cause such dead body to be removed to the public morgue. * * * The county medical examiner may perform or direct to be performed an autopsy and shall then and there carefully reduce or cause to be reduced to writing every fact and circumstance tending to show the condition of the body and the cause and manner of death, together with the names and addresses of any persons present at the autopsy, which record he shall subscribe.” (Emphasis added.)

The deputy medical examiner decided that the cause of death was so obvious that it was not necessary to conduct a post mortem examination. It is likewise as obvious to us as it was to the deputy medical examiner that the taking of the blood-alcohol sample test was unnecessary to ascertain the cause of death. Therefore, the said test was not a necessary official act of the deputy medical examiner. The only reason given by the deputy medical examiner as to why he gave the test was that it was part of a routine procedure where a death occurred as a result of an accident. We rule that the taking of the blood-alcohol sample was not a necessary official act of the deputy medical examiner under the statute. Under this finding we also conclude that the protective order of the trial court was properly granted. Lebel v Swincicki, 354 Mich 427; 93 NW2d 281 (1958).

For such evidence to be gathered by a police officer in order to be used in a potential criminal charge and retained for that purpose, may be proper. However, as in this case, to use such sovereignty powers of the state to acquire such evidence that becomes part of a civil case of one or another of two litigants we consider to offend our sense of fairness.

It also appears to us that the purpose defendant wishes to have the blood test admitted is to prejudice the plaintiff, and we rule that this purpose is untenable.

The defendant raises other issues which we feel are unnecessary to discuss in resolution of this case.

Affirmed, costs to plaintiff.  