Board of Com'rs of Henry County v. Dudley

• Citation: 340 N.E.2d 808,167 Ind.App. 693
• Decision Date: 29 January 1976
• Docket Number: No. 2--774A164,2--774A164
• Parties: BOARD OF COMMISSIONERS OF HENRY COUNTY, Appellant (Defendant below), v. Richard L. DUDLEY, Appellee (Plaintiff below).
• Court: Court of Appeals of Indiana

Page 808

340 N.E.2d 808

167 Ind.App. 693

BOARD OF COMMISSIONERS OF HENRY COUNTY, Appellant (Defendant below), v. Richard L. DUDLEY, Appellee (Plaintiff below).

No. 2--774A164.

Court of Appeals of Indiana, Second District.

Jan. 29, 1976.

Theodore L. Locke, Jr., and Michael A. Bergin, Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellant.

Charles S. Brown, Jr., and Nancy S. Brown, Brown & Brown, New Castle, for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY

Review is sought of an affirmative Award by the Full Industrial Board of Indiana (the Board) compensating Plaintiff-Appellee, Richard L. Dudley (Dudley), for injuries received by him in an auto accident while employed by Defendant-Appellant, Board of Commissioners of Henry County (the Employer), the Employer claiming the Award is contrary to law because Dudley was intoxicated.

We reverse.

FACTS

The facts and evidence before the Board most favorable to Dudley are:

On August 18, 1971, Dudley was severely injured in a two-truck accident on State Road 38 in Henry County, about 8/10 of a mile west of New Castle, Indiana.

Dudley filed a Form 9 Application for Compensation with the Board on March 16, 1972. The Employer responded with a Special Answer and Defense alleging that Dudley's claim should be denied because 'at the time of Plaintiff's injuries on August 18, 1971, he was intoxicated, which intoxication was the proximate cause of his injuries.'

The parties stipulated:

'. . . that on or about August 18, 1971, the plaintiff was in the employ of the defendant at an average weekly wage of $100.00; that on said date plaintiff sustained accidental injuries when he was involved in a collision between a pickup truck that he was driving and a dump truck owned and operated by the defendant.'

At the hearing evidence established that on August 18, 1971, Dudley was scheduled as part of his job as the County Service Officer to take a World War I veteran to Veteran's Hospital in Indianapolis; that the two men left New Castle at about 7:30 A.M. in Dudley's pickup truck traveling west on State Road 234 and arrived at Veteran's Hospital on West 10th Street at around 9:30 A.M. Leaving his passenger Dudley began the return trip to New Castle after making a short stop at the PX at Fort Benjamin Harrison.

Dedley testified he had no recollection whatsoever of August 18, 1971, or the events leading to the accident. He did testify, however, to receiving a letter from the General Motors Corporation approximately one month before the accident which requested that he take his truck to the nearest GMC truck dealer who would inspect and correct a possible defect in the brake system. He complied with this letter and was told that the defect pertained only to 1 1/2 ton trucks . . . his being a 1/2 ton pickup. He stated his 1/2 ton truck operated normally between March, 1971 (when it was purchased new) and the date of the accident. Dudley received a follow-up letter from GMC dated July 27, 1972, ¹ which in no way indicated a defect in the brake system of 1/2 ton trucks.

Sydney Shrout, the driver of the gravel dump truck involved in the collision (Shrout), testified at the hearing that the collision occurred at approximately 12:00 noon on August 18, 1971, while he was traveling west on State Road 38 at between 15 to 20 miles per hour. It was a hot, clear day and as he approached a slight hill in the otherwise straight two-lane blacktop road, he saw Dudley's pickup truck 'just cut right out' of its lane into his (the westbound) lane. With Dudley's truck coming headon, Shrout pulled his truck to the right and slammed on his brakes in an attempt to avoid the collision. In so doing Shrout's truck left approximately 30 feet of skid marks and was about halfway off its side of the road at the point of collision.

No evidence was presented that Dudley's swerving was caused by reduced braking efficiency.

The depositions of Trooper Lowell Dean Petree, the investigating officer at the scene of the collision, and Lieutenant Paul Asa, the officer conducting the blood alcohol analysis of the sample of Dudley's blood, were also admitted into evidence at the hearing over Dudley's objection. Trooper Petree testified to the smell of alcohol in Dudley's truck although he did not remember such an odor on Dudley's person. He also testified that after obtaining permission from a doctor attending the unconscious Dudley, he filled a blood capsule at the hospital by holding it under Dudley's mutilated leg. This container was then mailed to the Indiana State Police Laboratories.

Lieutenant Asa testified he received Dudley's blood sample envelope on August 20, 1971, placed it in a refrigerator on the same day, analyzed the sample on September 13, 1971 according to normal procedures, and that two separate gaschromatograph tests indicated a .41 percent blood alcohol level at the time the sample was taken. He further testified that the level established by law for operating a vehicle under the influence of intoxicating beverage is a .10 percent blood alcohol and that refrigeration has no effect on the blood whatsoever.

Based on this evidence, the Hearing Member denied compensation to Dudley. Thereafter on July 11, 1974, pursuant to Dudley's Form 16 'Application for Review by the Full Board', the Board filed its Findings of Facts which in pertinent part state:

'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 summary 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 Hsopital 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 '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.

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 [167 Ind.App. 698] defective in other vehicles of like kind; however, the testimony also included the truck had always operated properly prior to this day.

'That this accident was an almost head-on 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...