Opinion
No. 21372.
April 3, 1950.
APPEAL FROM THE CIRCUIT COURT, CLAY COUNTY, JAMES S. ROONEY, J.
Paul C. Sprinkle, William F. Knowles, Sprinkle Knowles, all of Kansas City, for appellant.
Norman S. Howell, Kansas City, for respondent.
This is an appeal from the circuit court of Clay County affirming an award of the Workmen's Compensation Commission in favor of the claimant (employee).
It is admitted that claimant was an employee of appellant and that both were under the provisions of the Compensation Act; and that he had an accident and sustained certain injuries. The only question presented on the appeal is whether the accident arose out of and in the course of his employment. This assignment is based on the contention that the evidence clearly discloses that the employee was guilty of such a degree of intoxication as to render him incapable of performing his duties for his employer at the time of the accident, and that the commission erred in not so finding.
The record discloses that the employee was a claim adjuster for the appellant and had been in this line of employment for several years. In connection therewith he operated an automobile and traveled in a North Missouri territory. His normal working week was from Monday morning until Friday evening. The accident occurred on Friday, February 20, 1948, about 6:30 or 7 p. m. During the day the employee had made calls at Renick, Moberly, Carrollton and Richmond, arriving in Excelsior Springs about 4:30 in the afternoon, where he interviewed a Mr. Lodwick concerning a claim in which the appellant was interested. On his arrival in Excelsior Springs he telephoned Mr. Lodwick who advised him that he would meet him at the Oaks Hotel shortly thereafter. While waiting for Mr. Lodwick claimant met an acquaintance, one John Cole, and they repaired to the Coon Hunt Room in the Oaks Hotel and each had one Scotch whiskey highball before Lodwick arrived. After Lodwick arrived each of the men had another whiskey highball. While they were in the Coon Hunt Room claimant purchased a bottle of Scotch whiskey to bring to his home in Kansas City. He was not familiar with the brand and opened the bottle and each of the men tasted it merely for quality. They remained there for about twenty or thirty minutes and all three left the hotel together. Both Mr. Lodwick and Mr. Cole testified that the claimant was not intoxicated when he got in his car and left for Liberty, where he planned to interview Mr. Hale concerning another claim in which the appellant was interested. Claimant drove in a westerly direction on Highway 69 towards Liberty and about six or seven miles west of Excelsior Springs his car collided with a truck and he received the injuries complained of. Claimant testified that he had not consumed intoxicating liquor of any kind on the day of the accident prior to his arrival in Excelsior Springs; that he drank none after leaving there, and that he was not intoxicated at the time of the collision.
Appellant produced two witnesses who were riding in an automobile immediately behind the one operated by the claimant, and they testified that claimant's automobile was "weaving on the highway" as he drove along and at times would get partly on the wrong side of the road and at other times would get over against the curbing on claimant's right-hand side, and that this condition continued for a distance of approximately three miles before the accident occurred.
Mr. Curtis, of the Highway Patrol, testified that he went to the scene of the accident and found claimant lying on the ground on the north side of the pavement in an unconscious condition. He inspected claimant's car, and testified: "There was three empty coke bottles, one not completely empty but almost so, and I also found a one-fifth of Scotch whiskey of which about one drink or one jigger of whiskey was gone." That he smelled of the coke bottle which was not empty and that it had the odor of whiskey in it; that the only odor of whiskey he detected about the car was where the coke bottle had turned over on the opposite side of the car from the driver.
Mr. McClure, another highway patrolman, went to the scene of the accident and testified substantially as Mr. Curtis, with this additional bit of evidence, that he found "An empty whiskey case in the turtle shell. * * * Q. Do you recall if that was the same brand as the whiskey in the bottle? A. It is my recollection that it was."
Claimant was recalled and testified that the whiskey case had been in the trunk of his car for many months and was used by him to put tools and other articles in so that they would not be scattered over the floor of the car. He also stated that he had not purchased any coca cola bottles that day and so far as he knew they had been in the car for quite sometime, and that he had not mixed any of the whiskey with the coca cola and consumed it after leaving Excelsior Springs.
Appellant relies on O'Neil v. Fred Evans Motor Sales Co., Mo.App., 160 S.W.2d 775. In that case the commission found that the accident did not arise out of claimant's employment because he was so intoxicated he could not physically and mentally have been engaged in his employment, and the St. Louis Court of Appeals affirmed that finding. However, the evidence of intoxication in that case is so much stronger than the evidence in the instant case that it cannot be considered controlling. Furthermore, in this case the commission, after hearing the evidence, found in favor of the claimant, which finding was affirmed by the circuit court, and, under such circumstances, our inquiry is limited to the question whether the commission could have reasonably made its findings, and reached its result, upon consideration of all the evidence before it. Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55, 62. It has been said, "The finding of the commission that the injury of the deceased arose out of and in the course of his employment should be upheld unless `it is clearly contrary to the overwhelming weight of the evidence.'" Stephens v. Spuck Iron Foundry Co., 358 Mo. 372, 214 S.W.2d 534, 539. See, also, Scott v. Wheelock Bros. Inc., et al., 357 Mo. 480, 209 S.W.2d 149, 153.
In the O'Neil case, supra, in discussing the evidence of intoxication, the court said, 160 S.W.2d 779: "* * * if his mind was a total blank on this occasion such condition was not brought about by reason of his employment. Whether such condition was the result of intoxication to such extent or degree that O'Neil could not be engaged in the furtherance of his employer's business, was a question of fact to be determined by the commission. * * * The question of whether O'Neil's injuries arose from the hazards incidental to travel on the roads while engaged in his duties to his employer was one to be determined from the facts and circumstances and was not a question of law." The commission and the circuit court found against appellant's contention on this point and we think the evidence abundantly supports that finding. Concerning the question of the intoxication of an employee, as affecting his right to compensation, the Supreme Court, in Phillips v. Air Reduction Sales Co., 337 Mo. 587, 85 S.W.2d 551, 555, said:
"The evidence is not clear as to the degree of Missey's intoxication that night. Appellants do not contend that there is anything in our Compensation Act which forfeits the right to compensation upon a showing that an employee had been drinking before going to work. Some states have made specific provisions concerning it. See 1 Schneider's Workmen's Compensation Law, 1136, § 340. If there should be similar provisions in our act, it is for the Legislature to provide them, not this court. Until the Legislature sees fit to do so, we cannot deny compensation because of intoxication, at least unless it was shown that the degree of intoxication was such that it could be held that the injury did not arise out of the employment because the employee could not have been engaged in it. Employers will have to enforce their rules against drinking by discharging offending employees or by such other disciplinary measures as they see fit to adopt." (Italics ours.)
It is our conclusion that the findings of the commission are amply supported by the whole record, and that the judgment should be affirmed. It is so ordered.
All concur.