Blevins v. Safeway Stores

• Decision Date: 05 October 1988
• Docket Number: No. CA,CA
• Citation: 25 Ark.App. 297,757 S.W.2d 569
• Parties: Shirley BLEVINS, Widow of Roger Blevins, Deceased, Appellant, v. SAFEWAY STORES and Home Insurance Company, Appellees. 88-33.
• Court: Arkansas Court of Appeals

Page 569

757 S.W.2d 569

25 Ark.App. 297

Shirley BLEVINS, Widow of Roger Blevins, Deceased, Appellant, v. SAFEWAY STORES and Home Insurance Company, Appellees.

No. CA 88-33.

Court of Appeals of Arkansas,

Division I.

Oct. 5, 1988.

Cliff Jackson, Little Rock, for appellant.

Tom F. Lovett, Little Rock, for appellees.

JENNINGS, Judge.

Roger Blevins was a produce buyer for a Little Rock Safeway store. On March 10, 1983, Blevins and Alice Denson, a co-worker, went out to dinner with Quinton Lundberg, a regional produce supervisor. Sometime late that evening, or early the next morning, Blevins was killed in a one vehicle accident. He was found dead in his car at 10:00 a.m. on March 11. A posthumous blood alcohol test registered .22 percent. The Workers' Compensation Commission denied the claim for benefits filed by the appellant, Mr. Blevins' widow. On appeal, she raises three arguments: (1) that Blevins' death was not "substantially occasioned" by intoxication; (2) that even if his death was caused by intoxication, the appellee should be estopped to assert this defense, and (3) that Blevins' death arose within the scope of his employment. We affirm the Commission's decision.

Appellant first argues that Blevins' death was not substantially occasioned by intoxication. Ark.Stat.Ann. § 81-1305 (Repl.1976) (now Ark.Code Ann. § 11-9-401(a)(2) (1987)) provides that "there shall be no liability for compensation under this Act where the injury or death from injury was substantially occasioned by intoxication of the injured employee...." There is a statutory presumption that the injury did not result from intoxication. Ark.Stat.Ann. § 81-1324 (Repl.1976) (now Ark.Code Ann. § 11-9-707 (1987)).

At the hearing before the ALJ, the appellee asked to be permitted to depose a medical witness to establish the effect of a blood alcohol level of .22 percent. In response, the appellant stipulated that the effect was "bad," that .22 percent is more than double the legal intoxication level, and that it was common knowledge as to the condition of a person having such a blood alcohol level. Ms. Denson, Blevins' co-worker, testified in fair detail about Mr. Blevins' drinking that night, and Mrs. Blevins testified that he invariably came home inebriated after being out in the evening with the produce supervisor. While it is true that there was no direct evidence that Blevins was driving in a dangerous manner on the night of March 10, and there was no eyewitness to the accident, we are persuaded that there was substantial evidence to support the Commission's finding that Mr. Blevins' death was "substantially occasioned" by his intoxication.

Appellant next argues that even if Blevins' death was substantially occasioned by intoxication, the employer is estopped from raising the defense. The courts have taken two basic approaches to this issue. Some have held that the doctrine of estoppel can never bar the employer's assertion of the defense of intoxication. See Hopper v. F.W. Corridori Roofing Co., 305 A.2d 309 (Del.1973); Smith v. Traders & General Ins. Co., 258 S.W.2d 436 (Tex.Civ.App.1953). This approach has been described as "draconian." See 1 A. Larson, The Law of Workmen's Compensation § 34.36, n. 51 (1985). Another group of cases hold that an employer may, in appropriate circumstances, be estopped from asserting the defense and that the issue of estoppel is generally one of fact. See Tate v. Industrial Accident Commission, 120 Cal.App.2d 657, 261 P.2d 759 (1953); McCarty v. Workmen's Compensation Appeals Board, 12 Cal.3d 677, 527 P.2d 617, 117 Cal.Rptr. 65 (1974); West Florida Distributors v. Laramie, 438 So.2d 133 (Fla.Dist.Ct.App.1983).

This court has implied that estoppel may be available to bar the assertion of the defense of intoxication, under appropriate circumstances. See Davis v. C & M Tractor Co., 4 Ark.App. 34, 627 S.W.2d 561 (1982); In Davis we said:

The employer testified that while he was aware that appellant drank intoxicants on a regular basis and had done so for the past fifteen years, he had no knowledge of how much he drank and had never seen him so influenced by alcohol that he could not perform his duties satisfactorily or drive and control a vehicle. He had no knowledge that appellant was intoxicated on the date of the accident or at the time the accident occurred. Reviewing the testimony most favorable to the finding of the Commission, the Commission could, and did find that the employer did not know that appellant was intoxicated on the date of the accident and has no knowledge of his having previously consumed alcohol to such an extent as to affect his driving or ability to perform fully all of his duties satisfactorily. There was no evidence that the employer participated in any drinking sprees or that he knowingly permitted the appellant to continue to work in an intoxicated condition. Mere knowledge of his propensity to consume alcohol does not, in our opinion, estop the employer from raising the defense of intoxication under the circumstances presented by this record.

At the hearing in the case at bar, Mrs. Blevins testified that, at one time, she had been a produce buyer for Safeway. She said that the regional manager would come to town three or four times a year and that it was customary for the produce buyer to pick him up at the airport and spend time with him afterwards. Quinton Lundberg had been her husband's supervisor for approximately five years. She testified that there were usually dinner meetings after work, that business was usually discussed at those meetings and that there was always drinking involved. Sometimes she went with her husband to these dinners and sometimes she did not. She said that...