Driscoll v. Great Plains Marketing Co., 13564

• Decision Date: 25 March 1982
• Docket Number: No. 13564,13564
• Citation: 322 N.W.2d 478
• Parties: Duane DRISCOLL, Claimant and Appellant, v. GREAT PLAINS MARKETING COMPANY, and Lincoln Lumber, Inc., Employer and Appellee, and Farmers Alliance Mutual Insurance Co., Insurer and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 478

322 N.W.2d 478

Duane DRISCOLL, Claimant and Appellant, v. GREAT PLAINS MARKETING COMPANY, and Lincoln Lumber, Inc., Employer and Appellee, and Farmers Alliance Mutual Insurance Co., Insurer and

Appellee.

No. 13564.

Supreme Court of South Dakota.

Considered on Briefs March 25, 1982.

Decided July 28, 1982.

Thomas M. Issenhuth of Arneson, Issenhuth & Gienapp, Madison, for claimant and appellant.

Edwin E. Evans of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for employer and appellee and insurer and appellee.

PER CURIAM.

Employee, Duane Driscoll, appeals from an order of the circuit court denying his claim for worker's compensation. The circuit court's order affirmed the Deputy Director of the Division of Labor and Management, Department of Labor, who had also denied the claim after a hearing. We affirm.

Employee had been drinking beer one winter day when he had an auto accident which gave rise to his claim for worker's compensation. As a job superintendent, employee lived in Sioux Falls, South Dakota, and coordinated construction for residences in Dell Rapids, a few miles north. While returning from Dell Rapids on the day of the accident he stopped at a bar to talk to a subcontractor and socialize. After drinking five or six beers he left. By that time it was dark. As he traveled a county road to Sioux Falls, employee came to an "S" curve in the road where a bridge crossed a ditch. The road had been dry and clear up to this point. The December weather, however, had alternately thawed and frozen the snow along the curve, making it icy and slippery. Employee testified that he was driving about fifty-five when he came to the curve but he "didn't know it was there." The curve had no traffic warning sign. Employee applied his brakes but was unable to slow down; he hit the bridge and was injured. His blood test two hours after the accident showed a blood alcohol content of .16.

A deputy sheriff who investigated the accident testified that he was able to safely drive his patrol car through the curve at thirty, forty, and fifty-five miles per hour. An expert testified that employee's blood alcohol content at the time of the accident would have been .20 and that employee's judgment, vision and muscle reactions would have been impaired. This expert also testified that a driver with a blood alcohol content of .16 is about one hundred times more likely to be involved in an accident than if he had had nothing to drink.

The Deputy Director found that employee's intoxication was the proximate cause of the accident. Employee appealed the administrative denial of worker's compensation to the circuit court. The circuit court's order affirmed the findings of fact and conclusions of law of the Division of Labor and Management, Department of Labor, and affirmed the denial of employee's claim. Employee appeals from the circuit court's order, contending that the court erred in concluding that his intoxication was the proximate cause of the accident.

"In reviewing on appeal the circuit court's judgment under the South Dakota Administrative Procedures Act (SDCL ch. 1-26), we must make the same review of the administrative agency's action as does the circuit court, unaided by a presumption that the circuit court's decision is correct. [cites omitted]" Matter of Certain Territorial Electrical Boundaries, 318 N.W.2d 118, 121 (S.D.1982). This review is limited to determining whether the agency's findings are clearly erroneous. SDCL 1-26-36(5); Barkdull v. Homestake Mining Co., 317 N.W.2d 417 (S.D.1982); Matter of Clay-Union Elec. Corp., 300 N.W.2d 58 (S.D.1980).

Having found that employee's intoxication was the proximate cause of the accident, the Deputy Director correctly concluded that SDCL 62-4-37 barred the claim for worker's compensation. This statute provides:

No compensation shall be allowed for any injury or death due to the employee's willful misconduct,...