Dane Trucking Co. v. Elkins, 93A02-8802-EX-44
| Decision Date | 11 October 1988 |
| Docket Number | No. 93A02-8802-EX-44,93A02-8802-EX-44 |
| Citation | 529 N.E.2d 117 |
| Parties | DANE TRUCKING COMPANY, Appellant (Defendant Below), v. Joseph R. ELKINS, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Robert A. Fanning, Locke, Reynolds, Boyd & Weissel, Indianapolis, for appellant.
Gary G. Hanner, Hanner, Hanner & Hanner, Rockville, for appellee.
Appellant Dane Trucking Company of Montezuma, Indiana appeals an Industrial Board Worker's Compensation award to Joseph R. Elkins. On October 19, 1983, Elkins sustained an accidental injury while driving a semi-tractor trailer for Dane Trucking.
On that date, Elkins picked up a load of particle board in Oxford, Mississippi and drove north toward Indiana. The semi-tractor trailer he was driving turned over in Graves County, Kentucky. Elkins suffered a spinal cord injury in the accident. Elkins filed a Form 9 application with the State Industrial Board. Dane Trucking raised the affirmative defenses of intoxication commission of an offense and knowing failure to perform a statutory duty.
A member of the Industrial Board conducted a hearing on the Form 9 claim. The Full Industrial Board adopted the findings and decision of the single hearing officer. The findings relevant to this appeal are as follows:
"The plaintiff testified as to the details of his relationship with the defendant, Dane Trucking Company, and Schilli Motor Lines, Inc. He further testified as to the loading of particle board which was 16 feet long and 27 inches wide and that the same was loaded approximately six feet high on the trailer. He testified that there were two rows lengthwise and two sections long and that he would describe the load as being top heavy. He indicated that he had never hauled a load this narrow and tall. He further testified as to the purchase of four sixteen-ounce cans of beer and subsequent stopping to eat at Kentucky Fried Chicken. He testified as to the details of being stopped by the police for speeding and thereafter the details at the time of the accident. He stated that at the time of the accident he was coming to a curve in the road and was checking for the load shifting. He testified that in looking out of his right-hand mirror things did not look right and he leaned forward in order to obtain a better view of the load on the trailer. He stated that when he returned to his normal position he jerked the wheel to the left, causing the accident.
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It is further found that after 6:30 P.M. and prior to 8:00 P.M. the plaintiff drank approximately two-and-a-half sixteen ounce beers.
It is further found that at approximately 8:00 P.M. the plaintiff was stopped for speeding and was not cited or questioned concerning any alcohol consumption.
It is further found that the plaintiff finished the rest of the beer by approximately 9:00 P.M. and that the accident in question occurred at approximately 9:20 P.M.
It is further found that after the accident at approximately 11:17 P.M. the plaintiff's blood was drawn and tested for blood alcohol content on a DuPont ACA.
It is further found that said machine tests the blood alcohol content of serum and not whole blood.
It is further found that factors such as the amount of food in the stomach, type of alcoholic beverage consumed, and the individual's ability to dissipate alcohol controls the rate of absorption into the blood stream.
It is further found that the blood alcohol content increases as a function of time after consumption and then plateaus and decreases.
It is further found that based on factors in this case, the plaintiff's blood alcohol content expressed with reference to whole blood was between .07 and .08 grams percent alcohol at the time of the accident.
It is further found that the plaintiff was travelling slightly over 60 miles an hour at the time of the accident and that this was in excess of the posted speed limit.
It is further found that the road conditions where the accident occurred were that the road was straight, dry, and without obstruction.
It is further found that there has been no showing of any steering defect or other mechanical problem with the tractor.
It is further found that the consumption of alcohol while operating a truck for hire violates applicable federal regulations.
It is further found that at approximately the time of the accident, in checking the right rear view mirror the plaintiff perceived that the load on the truck did not look right or could have shifted.
It is further found that in order to check such load the plaintiff leaned forward in the seat to gain a wider view of the trailer.
It is further found that after having leaned forward and upon returning to a normal upright position, the plaintiff inadvertently in such process jerked the steering wheel, which jerking of the steering wheel was the operative cause of the accident.
It is further found that although the plaintiff violated speed regulations, the accident would have occurred even if the plaintiff was travelling at the posted speed limit. Therefore, such violation cannot be viewed as the proximate cause of the accident.
It is further found that within the finding hereinbefore made that the plaintiff's blood alcohol content was no more than .08 grams percent alcohol, there is no presumptive evidence that the plaintiff was intoxicated.
It is further found that the plaintiff was stopped by a law enforcement officer after he had consumed two to three beers and was not questioned or tested with regard to any alcohol consumption.
It is further found that the act of leaning forward to check in the mirrors to deem the status of the load was reasonable under the circumstances.
It is further found that there is no evidence that the plaintiff was not in control of his bodily functions such that the jerking of the wheel was some form of involuntary alcohol induced action.
It is further found that the undersigned does infer that the act of jerking the wheel while shifting positions to see out the mirror is an act that could have occurred, notwithstanding the plaintiff's alcohol consumption, through mere mistake or inadvertence and that the defendant has failed to carry their burden of proof that the consumption of alcohol proximately caused the truck accident herein.
It is further found that the plaintiff is permanently and totally disabled as a result of this incident and is entitled to recover from the defendant, Dane Cox Trucking Company."
Dane Trucking appeals the Full Board's decision. The issues as restated are as follows:
(1) whether the Industrial Board erred in failing to find prima facie evidence of intoxication at the time of the accidental injury;
(2) whether the Industrial Board erred in finding that Dane Trucking failed to prove...
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