Board of Com'rs of Henry County v. Dudley
| Decision Date | 06 April 1976 |
| Docket Number | No. 2774A164,2774A164 |
| Parties | BOARD OF COMMISSIONERS OF HENRY COUNTY, Appellant (Defendant below), v. Richard L. DUDLEY, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Appellee Richard L. Dudley has filed his Petition for Rehearing addressed to the decision and opinion of this Court which were rendered January 29, 1976 as reported at 340 N.E.2d 808. The decision, in which the author of this opinion concurred, reversed an affirmative award by the Industrial Board upon the basic premise that the only reasonable conclusion which could be reached from the Board's findings and from the evidence was that the claimant was intoxicated at the time of the vehicle collision which injured him, that such injury was due to his intoxication and that therefore pursuant to Ind.Ann.Stat. § 22--3--2--8 (Burns Code Ed. 1974) claimant was, as a matter of law, not entitled to compensation.
The 'Findings' of the Full Industrial Board are set forth in their entirely in the reported decision 340 N.E.2d 808 at 810--811. They are here repeated:
'At the initial hearing, on April 2, 1973, in New Castle, Indiana, it was mutually STIPULATED at the commencement of the evidence that the alleged accident occurred August 18, 1971; that plaintiff's average weekly wage exceeded the maximum of $100; and that plaintiff was employed as a Veterans' Service Officer for Henry County; that he was married and had two dependents.
'The issue was the question of whether by plaintiff's conduct he destroyed his right to compensation. Defendant filed special answer on December 14, 1972, alleging that the proximate cause of plaintiff's injuries at the time of said accident was plaintiff's intoxication; which special answer is in the following words and figures, to-wit:
'Plaintiff testified that he and his wife, both of whom worked, arose early because both had to be at their offices, she by 8:00 A.M.; that sons Dean, fifteen, and Douglas, seventeen, were home for summer vacation.
'That Mrs. Evelyn Dudley was a candidate for New Castle City Treasurer, and the whole family campaigned daily when possible, including each evening following work.
'That on this day of August 18, 1971, plaintiff was scheduled to take a World War One veteran, Mr. John Black, to Veterans Hospital in Indianapolis.
'That the two men left New Castle about 7:30 A.M. in plaintiff's pickup truck, traveling west on Indiana State Road 234, and arrived at the Veterans Hospital on West Tenth Street around 9:30 A.M. Plaintiff left Black at the Veterans Hospital and began the return trip to New Castle.
'That Mrs. Dudley had requested plaintiff to stop at the PX at Fort Benjamin Harrison and purchase some cigarettes, charcoal, and other items.
'In his testimony plaintiff repeatedly denied any remembrance of having an automobile accident.
'There was testimony that plaintiff had sometime prior to this day of August 18, 1971, received a letter from General Motors to deliver his Chevrolet truck back to the dealer for check or repair of some part of the front end spring and brakes, which the factory had apparently found defective in other vehicles of like kind; however, the testimony also included the truck had always operated properly prior to this day.
'That the plaintiff on the above date and time was the County Service Officer; however, he was forced to give that up following this vehicle accident, which has left him badly incapacitated.
'That this accident was an almost headon collision west of New Castle on No. 234, when plaintiff, while returning to New Castle, collided with a Henry County Highway gravel dump truck.
'That since the plaintiff has denied any recollection of the accident, the facts concerning it have been supplied by the other driver, Mr. Sidney Shrout, and the investigative State Police Officer--eight-tenths of a mile west of New Castle City limits.
'That following said accident and while plaintiff was lying in Emergency Receiving and blood was dripping from plaintiff's badly mutilated left leg, State Police Officer Petree held a blood capsule under the dripping leg. He collected some blood as it left plaintiff's body.
'That following obtaining this specimen Officer Petree put capsule, with a filled-out alcohol influence form, in a blood vial container and mailed it to Indiana State Police Laboratories. That testimony presented indicates the test was not processed in the Laboratory for four to twenty-seven days, after which time the officer conducting the test testified that the test result was .41, et. (sic)
'That it was as a result of this specifically named gaschromatograph test that defendant, by its attorneys, filed the special answer, addressed to the principle that 'due to the fact that plaintiff was, while on a mission for his employer, the defendant, under the influence of alcohol and that, as a direct result, caused the collision between his, the plaintiff's truck and a Henry County Highway gravel dump truck, the plaintiff should be denied compensation.'
'That as a result of this collision the plaintiff suffered near fatal painful and permanent injuries, which an examining physician, Dr. Lowell Thomas, estimated as being 75% of the man as a whole.
'That the blood sample obtained from the injured plaintiff was obtained by the investigating State Police Officer in the hospital emergency room from the unconscious plaintiff and there is no additional evidence to establish that intoxication was a proximate cause of plaintiff's injuries.
'That it is further found the disagreement between the parties, resulting in the filing by the plaintiff of a Form 9, results in the majority of the Full Board's decision that the plaintiff is entitled to compensation for his injuries since he obviously has reached the highest level of improvement he will ever attain.
'It is further found that plaintiff should be awarded compensation for temporary total disability at the rate of $66 per week for the statutory period of 26 weeks, beginning August 18, 1971, and compensation at the rate of $60 per week for a specific period of 375 weeks, beginning August 18, 1971, for permanent partial impairment of 75% of the body as a whole, his statutory medical expenses; and costs, if any there be.
'The Full Industrial Board of Indiana now finds for the plaintiff and against the defendant on plaintiff's Form 9 application filed herein on March 16,...
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French v. ICI America, Inc.
...Whispering Pines Home for Senior Citizens v. Nicalek (1975), Ind.App., 333 N.E.2d 324. See also, Board of Commissioners of Henry County v. Dudley (1976), Ind.App., 344 N.E.2d 853. As pointed out in Whispering Pines, supra, the findings must contain all the specific facts relevant to the con......