Birch v. Malvern Cold Storage Co.
| Decision Date | 06 May 1941 |
| Docket Number | 45481. |
| Citation | 297 N.W. 818,230 Iowa 357 |
| Parties | BIRCH v. MALVERN COLD STORAGE CO. |
| Court | Iowa Supreme Court |
Appeal from District Court, Pottawattamie County; J. A. Murray Judge.
A workmen's compensation case. Claimant, surviving wife of Ralph C. Birch, filed an application alleging her husband received injuries arising out of and in the course of his employment by defendant which resulted in his death. The deputy industrial commissioner, acting as sole arbitrator found the injuries arose out of and in the course of his employment and awarded plaintiff compensation. On defendant's application for a review of the award to the industrial commissioner, the award was sustained. On appeal by defendant to the district court the decision of the industrial commissioner was affirmed. Defendant appealed.
Affirmed.
Woodford R. Byington, of Malvern, for claimant-appellee.
Cook & Cook, of Glenwood, for defendant-appellant.
Decedent Ralph Birch, transported and sold products of defendant by truck on a regular route. On July 24, 1938, on his return trip, Birch was traveling south on the west side of a graveled highway. There was a ridge of gravel about 12 inches high and 12 inches wide made by a road scraper on the west side of the highway and about 2 feet from a ditch on the west side of the highway about 2 feet deep and 10 feet wide. When Birch was a mile and a half south of Treynor, his left rear tire went flat. After the tire was repaired and he had driven south a quarter of a mile, his right front wheel entered and traveled in the ridge of gravel for about 20 feet. The truck then traveled from 30 to 40 feet with the right wheels between the ridge of gravel and the ditch and then went into the ditch where the car overturned and crushed Mr. Birch who died before he could be removed from under the car.
The accident happened about 6:20 P.M. The material parts of sections 1376 and 1453, 1939 Code, read:
The defense to the claim is that Birch was intoxicated and his intoxication was the proximate cause of the injury.
The industrial commissioner found that the evidence was not sufficient to show that the injury sustained by the deceased was due to intoxication and that the injury was " due to an inadvertence of the right front truck wheel coming in contact with a row of loose material along the right-hand side of the roadway which pulled the truck westward into the ditch."
The issue is whether the evidence supports the finding of the commissioner.
Plaintiff's claim is based on circumstantial evidence referring principally to the condition of the road and the tire tracks. We will refer briefly to plaintiff's evidence:
Birch had driven on the west side of the highway and along the east side of the ridge for 60 or 70 feet when the right front wheel " caught" or " hooked" the ridge and traveled therein for about 10 or 15 feet. The right wheels of the truck then traveled for about 20 to 40 feet between the ridge and the ditch and then went into the ditch.
One witness testified:
The steering apparatus was loose, and, as a witness for defendant stated, " the play in the wheel was not too safe for driving."
The injury arose out of the employment and claimant is entitled to an award unless defendant has established its defense that intoxication was the proximate cause of the injury. On this issue, the defendant's evidence is substantially as follows:
About 12:30 on the afternoon of the day of the accident Birch had a pint or quart bottle of whiskey one-half full in a customer's store in the town of Neola. Birch took one drink about 1 or 1:30 in this store. Three other persons in the store drank from the bottle. Birch left the store about 2 o'clock. The customer saw Birch on the streets of Neola about 4:30 and testified that he was not intoxicated when in his store or when he saw him on the street and that his speech and actions were normal.
A dentist of Neola testified that Birch saw him in a pool hall about 2 and asked him to take out some teeth and whether he could take a drink before having them extracted. The doctor stated that he could take one drink. Birch then left the pool hall and later returned, played pool with the doctor and at 3 P.M. had five teeth extracted. The doctor testified he left his office at 4 o'clock; that he was not intoxicated at any time that he observed him during the afternoon and that he appeared to be normal. So far as shown by the record, Birch took one drink of whiskey in Neola. He reached the town of McClelland at 5 o'clock P.M. where he had a small glass of whiskey.
A witness observed Birch driving his Chevrolet panel truck south on the graveled highway at 5:30 P.M., about 1 1/2 miles north of Treynor and about 3 miles north of the place of the accident. He testified that the road was rough and uneven; that the car was traveling from 60 to 65 miles per hour and that it was bouncing and jumping over the road and weaving.
When Birch had traveled south of Treynor about a mile and a half his left rear tire went flat. Henry Kohl, a mechanic, changed the tire for Birch. He testified on direct examination:
" Q. How did he talk? A. Well, he didn't seem to want to talk very much. Q. Well, did he talk like a drunken man would talk, thick? A. Yes, he did. I didn't notice him walking any; he was leaning against the truck, and, of course, I was busy with my work. I didn't notice that he staggered, but he walked around on the west side and sat down on the running board. He started to take...
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