v. (1956)

This is a proceeding to review an award of compensation made by the respondent Commission in favor of the respondent MacDowell and against petitioner Industrial Indemnity Company as the insurance carrier of petitioner Douglas Aircraft Company, Inc.

On December 11, 1954, MacDowell was in the employ of Douglas as a tool control dispatcher. He was employed upon the night shift and testified that it had been customary for him to, on two or three occasions each night, take a three-wheeled motor scooter and return blueprints to the blueprint room and pick up other blueprints and take them back to the tool room. His lead man, who was his immediate superior, testified that it was not a part of applicant's duties to ride the motor scooter or to deliver or pick up blueprints, but that that was the work of another employee, called the follow-up man; and that he had on several occasions instructed MacDowell not to leave the tool room and not to perform any service in connection with picking up blueprints from the blueprint room or in delivering blueprints to that room. Such instructions were denied by MacDowell.

MacDowell testified that on the night of December 11, 1954, about 10:40 p. m., he took the motor scooter, went to the blueprint room, picked up blueprints, and while returning from the blueprint room to the booth where he worked that he ‘struck a bump and it threw me off the motor scooter.’ MacDowell's memory was very hazy as to all facts both before and after the alleged accident. He had no definite recollection of leaving his place of employment or of getting on the motor scooter or delivering blueprints to the blueprint room or picking up other blueprints. His testimony was that he assumed he did said things because that was what he usually did. He could not say whether he or the motor scooter collided with any object or whether the place of the accident was in a lighted portion of the paved surface over which he was riding or in a dark portion. He could not say how far from his booth the accident occurred, but he did walk from the place of the accident to that booth and mounted the stairs to the booth, although in the accident he had received a compression fracture of the fourth lumbar vertebra and four broken ribs.

Several witnesses, including one physician and a trained nurse, testified that MacDowell was intoxicated when found in the control booth after the accident; and one of the attending physicians testified that without some anaesthesia or sedative MacDowell would have been unable, with the injuries he sustained, to have endured the pain of walking to his booth and climbing the stairs, but that alcohol acted as a sedative or anaesthesia and because of his intoxicated condition he was able to accomplish this feat. The medical evidence also showed without contradiction that MacDowell did not suffer any injuries which would account for his major loss of memory, but that intoxication would account for such a loss of memory.

By its findings and award the Commission found that the injuries sustained by MacDowell arose out of and occurred in the course of his employment, and that ‘The evidence fails to establish that said injury was caused by the intoxication of applicant.'¹ It is these findings that are attacked by petitioner here, as being without evidentiary support.

Petitioner first contends that the finding that the injuries arose out of and in the course of MacDowell's employment is entirely unsupported by and contrary to the evidence. It is petitioner's contention that in riding the motor scooter and delivering and picking up blueprints applicant was acting outside the scope of his employment and contrary to the express instructions of his superior. There was ample evidence to have sustained a finding by the Commission that applicant was acting outside of the course of his employment and in violation of the express instructions of his employer. On the other hand, however, MacDowell's testimony that he had not received instructions and that his superior had at no time objected to his performing these services supports the Commission's finding that he was acting in the course of his employment.

Petitioner's contention, that the evidence fails to support the finding of the Commission that the defense of intoxication had not been proved, must be sustained. The formal finding of the Commission is in reality not a finding at all but a pure conclusion, for it cannot be determined from the formal finding whether the Commission found that MacDowell was not intoxicated or whether it found that he was intoxicated but that his intoxication was not a proximate cause of the accident and injuries. The intent of the Commission by this finding is, however, made clear by its report, for in its report it expressly finds that MacDowell was ‘inebriated’ at the time of the accident, but that the evidence failed to show that his inebriation was a cause of his injury.²

All parties contend that the findings contained in the report of the Commission are to be treated here as its findings of fact, and respondent concedes that the Commission did find as a fact that applicant was inebriated at the time of the accident.

We assume that the Commission used the word inebriated in its common sense. The verb inebriate is defined in Webster's International Dictionary (2d ed.) as ‘To make drunk; to intoxicate. 2. Hence, to disorder the senses * * * to deprive of sense and judgment * * *’ Inebriated is synonymous with intoxicated or drunk, and imports the loss of normal control of one's bodily and mental faculties. Standard Life & Accident Insurance Co. v. Jones, 94 Ala. 434, 10 So. 530; Freeburg v. State, 93 Neb. 346, 138 N.W. 143; O'Connell v. State, 5 Ga.App. 234, 62 S.E. 1007.

The liability imposed by the workmen's compensation laws upon the employer is a liability without fault, and to which liability the negligence of the employee is not a defense except where that negligence³ consists in the voluntary intoxication of the employee, which intoxication proximately contributes to his injury. Intoxication, however, like the negligence of a plaintiff in an ordinary tort action, does not defeat the rights of the employee unless it contributes as a proximate cause to his injury, and the defense of intoxication is an affirmative defense to be asserted and proved by the employer. It does not follow, however, that the employer must offer independent evidence that intoxication was a proximate cause of the injury suffered by an inebriated employee, where the accident is one arising out of a special hazard to which the employee is exposed, and where the use of the employee's normal physical abilities and mental faculties are requisite to his avoiding injury from that hazard.

It is a matter of common knowledge, and therefore of judicial notice, that one who is inebriated is not able to control his bodily movements in a normal manner and is dangerous to himself, and that one who drives while inebriated drives erratically. Johnston v. Brewer, 40 Cal.App.2d 583, 587, 105 P.2d 365; Dobson v. Industrial Acc. Comm., 114 Cal.App.2d 782, 786, 251 P.2d 349; People v. Salladay, 22 Cal.App. 552, 555, 135 P. 508.

When one voluntarily becomes intoxicated and loses normal control of his physical abilities and mental faculties and thus disables himself to exercise ordinary care, and in that condition exposes himself to the hazards of his employment, it necessarily follows that his intoxication must be deemed a proximate cause of an ensuing injury, unless the facts proven are such as to exclude his intoxication as a proximate, contributing cause. Therefore, when an employer proves that the employee was inebriated and that while inebriated he engaged in a hazardous activity, the hazards of which might be avoided by one in command of his faculties, he has established the defense which the statute gives him and an award to the inebriated employee cannot be sustained in the absence of evidence which would sustain a finding that the intoxication or inebriation was not a contributing cause. In order to make such a finding it is not enough that the injury is one which might occur without any negligence or by reason of negligence other than intoxication, for that is true in every accident. Sober employees are injured by the vehicles which they are driving leaving the road and overturning, by falls from scaffolds, in lighting ovens or furnaces, by being thrown from horses, or while grooming horses. Yet if it be proved that he exposed himself to the hazards of such work while inebriated, it will not be held that his inebriation was not a contributing proximate cause of his injury in the absence of evidence that would support a finding of some other cause. Pacific Freight Lines v. Industrial Acc. Comm., 26 Cal.2d 234, 157 P.2d 634; Dannenfelser v. Perry, 2 Ind.Acc.Com. 979; Suhr & Co. v. State Compensation Ins. Fund, 2 Ind.Acc.Com. 717; Atkins v. Peoples' Express Co., 2 Ind.Acc.Com. 631; Arnold v. Benjamin, 1 Ind.Acc.Com. 411, 412–413; Amell v. Byurdor Confection Co., 19 Ind.Acc.Com. 36; Ruemping v. Ind. Acc. Comm., 1 Cal.Comp.Cases 71; Calles v. Bressano, 5 Cal.Comp.Cases 177; McLean v. Vogel, 12 Cal.Comp.Cases 82.

In the case at bar MacDowell had, night after night, driven over the same paved area while in possession of his faculties, without accident or injury; but on the night in question when he exposed himself to the same hazards but without the ability to exercise his faculties to protect himself from them, the accident in question occurred. We think it must be held that the proof of inebriation was, under these circumstances, proof that that inebriation was a contributing cause of the accident and the injury.

In effect the Commission here found that there was no evidence before it that MacDowell's inebriation was a proximate cause of the accident, but that the only evidence as to the cause of his injures was his striking a bump. This reasoning is unsound. In the first place, the Commission had before it evidence showing a very high degree of intoxication, and on the basis of this evidence found MacDowell to be inebriated. From this evidence it had judicial notice that he was without the normal use of his faculties, and that in itself was sufficient evidence to find his intoxication to be a proximate cause of his striking the bump which resulted in his being thrown from the motor vehicle.

In the second place, the Commission treats the case as if the question of proximate cause turned upon the question as to whether or not MacDowell's inebriety caused him to be thrown from the scooter after striking the bump; but that is not the question upon which proximate cause turns—on the contrary, the question is, did his inebriety contribute to his striking the bump. The danger of striking an uneven place in the pavement or a bump was a hazard to which MacDowell's employment exposed him, and it was the presence of this hazard as well as any other hazards of his occupation that required him not to voluntarily expose himself to them when he could not make full use of his faculties to avoid their dangers.

Hazard of injury is present in a greater or lesser degree in all employments, and it is this fact that caused the Legislature to place the normal risk of loss from these hazards upon industry rather than upon the employee; and the hazard, whatever it may be, to which the employee is exposed, is always one of the causes of an industrial injury. The injury may result from the hazard with or without negligence on the part of the employee, and yet the law compensates the injured employee unless he intentionally contributes thereto or contributes thereto by depriving himself, through voluntary intoxication, of his ability to avoid the risk of the hazard.

Here the danger of hitting a bump or uneven place in the pavement while riding the motor scooter and thereby being thrown and injured was one of the hazards of MacDowell's employment which he was obligated not to increase by exposing himself to it while inebriated. Yet the Commission here places its finding that inebriation was not a contributing cause of his injuries upon the proposition that a sober employee might have been thrown and injured if he failed to avoid the hazard.

The Commission thus entirely loses sight of the fact that it is the failure to avoid the danger of the hazard rather than the results of failing to avoid it which is the test of whether or not MacDowell's inebriation was a proximate cause of those results. Inebriation became a causative force to the resulting injuries the moment that MacDowell mounted the motor scooter while inebriated. It was a causative force from that moment on because he could not, while operating the motor scooter, exercise the care, judgment, and caution that he would have been able to exercise had he been sober. (See 1 Larson, Workmen's Compensation Law, sec. 34.34, pp. 493–495.)

The finding that MacDowell was inebriated at the time of the accident and was thus unable to use his faculties to avoid the hazards of his occupation, together with the fact that he had many times when sober followed the same course without accident or injury, compels, as we have heretofore said, a finding that his inebriation was a proximate cause of the accident, there being no other explanation of it.

To hold that the employer must produce independent evidence that the proven inebriation of an employee was a proximate cause of an accident resulting in injury to the employee would wholly deprive the employer of this defense in any accident which occurred and to which there were no witnesses other than the employee. In the case at bar the instrumentality, the motor scooter, was entirely under the control of MacDowell. He and he alone had the knowledge of any facts which would explain the accident and show that his inebriation did not contribute to it. The same practical reasons that cast upon a defendant driver of an automobile in a tort action whose passenger has been injured by his car leaving the highway or colliding with an inanimate object, or upon a hospital or a doctor where an unconscious person receives injury, or upon a claimant for compensation against whose award a lien is claimed, the burden of explanation or of going forward with the evidence, place upon an inebriated employee the burden of offering some explanation which would exclude his inebriation as a proximate cause of the accident. Garcia v. Industrial Accident Comm., 41 Cal.2d 689, 694, 263 P.2d 8.

The award is annulled.

FOOTNOTES

1.  The affirmative defense of intoxication was placed in issue by petitioner.

2.  The following are the findings of the Commission upon this issue as set forth in their report: ‘The Panel has again reviewed the record including the additional testimony produced at the hearing of April 24, 1956. The Panel is aware that applicant stated in his testimony on June 23, 1955, ‘I struck a bump and it threw me off the motor scooter.’ However, the Panel also has noted the applicant's apparent complete loss of recollection with respect to many of the incidents which occurred at the time of his accident and prior thereto and after. He did not know whether or not the accident had caused any damage to the motor scooter and he did not know whether he himself had collided with anything other than the ground or the street surface but he did state that the scooter did not collide with anything while he was on it. The area on which he traveled on the motor scooter was approximately 600 yards in length and was paved with asphalt or something of that nature and there were lights along the street. He was unable to say whether the spot at which he fell was within the area of an adjacent light or whether it was just outside the lighted area. There was a regular headlight on the motor scooter which was burning at the time but he was unable to recall whether the light illuminated the area where the accident occurred sufficiently to enable him to see any object that was in the way of the motor scooter and to either stop or swerve the scooter to one side. Applicant's objection to the Panel's Notice of Intention pin-pointed the alleged specific cause of the accident as being a bump in the street and the matter was thus again open for rebuttal or clarification as the case may be. Defendants have produced no evidence to show that there was no bump in the street as testified to by applicant and he testified further that striking this bump threw him from the motor scooter. The Panel remains of the opinion that applicant was inebriated at the time of his accident but, mindful of the fact that the defense of intoxication proximately causing injury must be proved by the party asserting such as a defense and after further review of the record, the Panel has come to the conclusion that such defense has not been proved. To bar the injured employee from compensation benefits, intoxication must have proximately caused his injury and even a sober driver may well be thrown from a motor scooter if the scooter strikes a bump or other inequality in the street over which it is traveling.' [Italics ours.]

3.  Where one renders himself incapable of acting normally to avoid danger to himself or others by becoming intoxicated or inebriated, he is negligent. Frisvold v. Leahy, 15 Cal.App.2d 752, 755, 60 P.2d 151.

NOURSE, Justice pro tem.

WHITE, P. J., and FOURT, J., concur.