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MARY JANE GALLAGHER v. DR. ING (10/20/87)

filed: October 20, 1987.

MARY JANE GALLAGHER, ADMINISTRATRIX OF THE ESTATE OF WILLIAM E. GALLAGHER, DECEASED, APPELLANT,
v.
DR. ING, H.C.F. PORSCHE KG AND FOREIGN WHEELS, INC. AND BOB FOX T/A BOB FOX PORSCHE SERVICE, APPELLEES. MARY JANE GALLAGHER, ADMINISTRATRIX OF THE ESTATE OF WILLIAM E. GALLAGHER, DECEASED, APPELLANT, V. VOLKSWAGEN OF AMERICA, INC., FOREIGN WHEELS, INC. AND BOB FOX T/A BOB FOX PORSCHE SERVICE, APPELLEES



Appeal from Judgment of the Court of Common Pleas, Civil Division, of Montgomery County, No. 80-3316. Appeal from Judgment of the Court of Common Pleas of Montgomery County, No. 79-22567.

COUNSEL

Francis J. Moran, Philadelphia, for appellant.

Joseph V. Pinto, Philadelphia, for appellees.

Brosky, Wieand and Beck, JJ.

Author: Wieand

[ 367 Pa. Super. Page 349]

William E. Gallagher was killed when the Porsche which he was operating failed to negotiate a curve in a narrow road, left the roadway, struck a stone wall, and careened back into the roadway where it collided with an oncoming vehicle. In subsequent death actions the administratrix of his estate contended that the Porsche had been defectively designed. Volkswagen of America, Inc., the manufacturer, denied that there had been a design defect and presented evidence that Gallagher had lost control of the vehicle because he was intoxicated. The jury which heard the case returned a verdict in favor of the manufacturer, finding specifically that the vehicle had not been designed defectively.*fn1 Post-trial motions were denied, and judgment was entered on the verdict. The administratrix of the decedent's estate appealed. We affirm.

The accident occurred on February 6, 1979 at or about 9:00 p.m. on Morris Road, a narrow, winding road in Whitpain Township, Montgomery County. Witnesses testified that Gallagher had passed them at a high rate of speed approximately one mile from the scene of the accident and had accelerated after completing the pass. An analysis of a blood sample removed shortly after Gallagher had been pronounced dead revealed a blood alcohol content of .18 percent. Prior to the accident, Gallagher had been with friends where, during a period of approximately one hour and a half, he had been drinking scotch. A toxicologist opined, based on the alcoholic content of the decedent's blood, that he must have had at least six or seven drinks and was unfit to drive a motor vehicle.

Appellant moved pre-trial to exclude evidence of her decedent's consumption of alcohol on the day of the accident.

[ 367 Pa. Super. Page 350]

The trial court received an offer of proof and on the basis thereof held that the evidence, if believed by a jury, was sufficient to show that Gallagher had been unfit to drive a vehicle safely. Therefore, the court ruled, the evidence was admissible. Appellant argues on appeal that the receipt of this evidence was erroneous.

In Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956), the Supreme Court pronounced the applicable law as follows:

[W]hile proof of intoxication is relevant where reckless or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive.

Id., 386 Pa. at 148, 125 A.2d at 476. See: Billow v. Farmers Trust Co., 438 Pa. 514, 516-517, 266 A.2d 92, 93 (1970); Morreale v. Prince, 436 Pa. 51, 52, 258 A.2d 508, 508 (1969); Cook v. Philadelphia Transportation Co., 414 Pa. 154, 159, 199 A.2d 446, 448 (1964); Balla v. Sladek, 381 Pa. 85, 93, 112 A.2d 156, 160 (1955); Critzer v. Donovan, 289 Pa. 381, 384-385, 137 A. 665, 666 (1927); Hawthorne v. Dravo Corp., 352 Pa. Super. 359, 369, 508 A.2d 298, 303 (1986); Ackerman v. Delcomico, 336 Pa. Super. 569, 574-575, 486 A.2d 410, 413 (1984); Emerick v. Carson, 325 Pa. Super. 308, 313, 472 A.2d 1133, 1135 (1984); Couts v. Ghion, 281 Pa. Super. 135, 143, 421 A.2d 1184, 1188-1189 (1980); Cusatis v. Reichert, 267 Pa. Super. 247, 249-250, 406 A.2d 787, 788-789 (1979); Schwarzbach v. Dunn, 252 Pa. Super. 454, 461, 381 A.2d 1295, 1298 (1977). In Billow v. Farmers Trust Co., supra, the Court, by applying this standard to a case involving a fatal collision, held that an opinion by a physician that the decedent's blood alcohol content of .14 percent would have been sufficient "to affect his driving" was properly excluded because it failed to show "'a degree of intoxication which proves unfitness to drive.'" Id. 438 Pa. at 517, 266 A.2d at 93, quoting Morreale v. Prince, supra.

[ 367 Pa. Super. Page 351]

Where the evidence of intoxication is such as to demonstrate an unfitness to drive, however, the evidence is admissible. "Our legislature has expressly approved the blood alcohol test as a means of determining whether a person is driving under the influence of intoxicating beverages. Indeed, a blood alcohol content of .10 percent or more of weight raises a presumption of intoxication. 75 Pa.C.S. ยง 1547(d)(3)." Cusatis v. Reichert, supra 267 Pa. Super. at 251-252, 406 A.2d at 789-790. See: Beneshunas v. Independence Life & Accident Insurance Co., 354 Pa. Super. 391, 396, 512 A.2d 6, 8 (1986); Ackerman v. Delcomico, supra 336 Pa. Super. at 575-577, 486 A.2d at 414; ...


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