Inscoe v. DeRose Industries, Inc.

• Decision Date: 07 July 1976
• Docket Number: No. 7526IC841,7526IC841
• Citation: 30 N.C.App. 1,226 S.E.2d 201
• Parties: Larry P. INSCOE v. DeROSE INDUSTRIES, INC. and Continental Casualty Co.
• Court: North Carolina Court of Appeals

Page 201

226 S.E.2d 201

30 N.C.App. 1

Larry P. INSCOE v. DeROSE INDUSTRIES, INC. and Continental Casualty Co.

No. 7526IC841.

Court of Appeals of North Carolina.

July 7, 1976.

Olive, Howard, Downer, Williams & Price by Carl W. Howard, Charlotte, for plaintiff-appellee.

Jones, Hewson & Woolard by H. C. Hewson, Charlotte, for defendants-appellants.

MORRIS, Judge.

Defendants contend that the Full Commission, by ostensibly requiring denial of compensation only in those instances where a claimant's intoxication was The sole proximate cause of the accident and resulting injuries, erred in concluding that the plaintiff's accident and injury were not occasioned by his intoxication. Specifically, defendants, arguing that the Full Commission misinterpreted the applicable law, cite the intoxication forfeiture of compensation provision under former G.S. 97--12 and maintain that the '. . . clear language of the statute indicates that a plaintiff is precluded from compensation if his intoxication proximately caused the accident . . . (and that) (t)here was clearly a causal relationship between th(is) plaintiff's intoxication and the accident and resulting injuries.' (Emphasis supplied.)

This appeal presents a question of first impression for North Carolina. The problem, stated simply, is whether former G.S. 97--12 requires denial of compensation only in those instances where the claimant's intoxication was The sole proximate cause for the accident and resulting injuries or whether statutory forfeitur arises, as appellants claim, when the intoxication was simply a proximate cause or stage from which the injuries result. In short, defendants raise the question of whether 'occasioned by' means the Sole proximate cause of the injuries sustained or A proximate cause of the injuries sustained. Previous North Carolina case law in this general area has never defined the term.

In Osborne v. Ice Co., 249 N.C. 387, 106 S.E.2d 573 (1959), there was evidence that the employee was intoxicated, attempted to pass a truck going in the same direction, skidded his car across the center line of the highway in the path of an oncoming car, and the two vehicles collided. The employee was killed. The hearing commissioner found as a fact that the employee 'was intoxicated at the time of his said injury resulting in his death; that his intoxication was the sole proximate cause of his attempting to pass the truck on the occasion herein complained of, of the manner in which he was driving his automobile at said time, and of the resulting collision with the automobile driven by Jimmy Wilson; and that his said injury, resulting in his death, was occasioned by said intoxication', and denied the claim. The Full Commission affirmed and adopted the findings, conclusions of the commmissioner, as did the superior court on appeal. On appeal to the Supreme Court, the plaintiff raised several questions, among them whether there was sufficient competent evidence of intoxication and, if so, whether there was sufficient competent evidence to support the finding that 'the intoxication of the deceased occasioned the accident in which he was killed.' The Court held that there was sufficient evidence of intoxication to support that finding. As to the other question the Court, at page 390, 106 S.E.2d at page 576, said

'The evidence in the case showed that Osborne left skid marks for 75 feet in a straight line forward and then skid marks sidewise across the center line of the highway to his left, with the result the truck he was attempting to pass and his skidding automobile blocked both lanes of the highway. Wilson's car, in its proper lane, struck Osborne's car on the right-hand side near the middle. The Commission found the driver of the skidding car was intoxicated. In operating the car on the highway, he was violating a safety statute. Whether the accident was proximately caused by the violation was a question for the fact finding body.'

In Gant v. Crouch, 243 N.C. 604, 607, 91 S.E.2d 705, 707 (1956), the hearing commissioner denied compensation, having found that the employee's death was occasioned by his intoxication. The Full Commission, on review, found that his death was not occasioned by his intoxication and made an award allowing compensation. The superior court, on appeal, affirmed the Full Commission. On appeal to the Supreme Court, Justice Higgins, speaking for the Court said:

'In order to defeat the claim for compensation, however, the defendants sought to prove that death of the employee was occasioned by his intoxication. The burden of proof was on the defendants (G.S. 97--12). There was evidence before the Commission that the pickup truck Gant was driving was forced off a very narrow mountain road by other vehicular traffic; that the shoulder of the road gave way, causing the vehicle to turn over and roll approximately 90 feet down the mountainside, killing Gant instantly. There was evidence from defendants' witness that Gant and his two companions had consumed about one-half pint of whiskey during a period of about four hours. There was evidence from one of defendants' witnesses that she and Oliver Paine had been with Gant from about noon, at which time they took one drink each, until the accident about 4:30; that Gant took another drink before they got to Soco Gap (time not given), and at Soco Gap he drank one bottle of beer. The witness further testified that Gant ate his lunch about 3:30 or 4:00 o'clock; that he had nothing to drink after that time. There was evidence the witness had made contradictory statements about the amount of liquor consumed. However, in the opinion of the Commission the defendants did not carry the burden of showing the death was occasioned by the intoxication of the employee. As was said by this Court in the case of Brooks v. Rim & Wheel Co., 213 N.C. 518, 196 S.E. 835:

'There was competent evidence to support the contention of both plaintiff and defendant upon this question, but the Commission having found as a fact that the accident in which the plaintiff was injured was not occasioned by his intoxication, the Judge of the Superior Court was bound by such finding, and we are likewise bound. " (Citations omitted.)

In Yates v. Hajoca Corp., 1 N.C.App. 553, 162 S.E.2d 119 (1968), claimant was employed by defendant as an outside salesman and had his office in his home in Hamlet. Every Thursday he drove to Charlotte, using a car furnished by defendant and maintained by defendant, to turn in orders received, money collected, and to discuss with defendant deliveries and procedures for billing for orders taken by him. The accident in which he received disabling injuries occurred while he was returning to his home in Hamlet from Charlotte from one of his Thursday trips to defendant's office. There was evidence that there was a whiskey bottle and two beer cans in the front seat of the car immediately after the accident which occurred on a dark and foggy night when claimant's car left the highway in a curve and struck a tree. Writing for this Court, Chief Judge Mallard said at page 556, 162 S.E.2d at page 121:

'The appellants also contend that the Commissioner and the full Commission committed error in failing to find that the injuries sustained by Thomas Henry Yates, Jr., were occasioned by his intoxication. The burden of proof as to this was on the defendants. G.S. 97--12. The appellee contends that the evidence was not sufficient to make such a finding. There was competent evidence to support the contention of both the plaintiff and defendants upon this question. By making an award in this case, the Commission has found that the defendants failed to carry the burden of proof that the plaintiff's injury was caused by his intoxication, and we are bound by such finding. Gant v. Crouch, 243 N.C. 604, 91 S.E.2d 705.'

In Lassiter v. Town of Chapel Hill, 15 N.C.App. 98, 189 S.E.2d 769 (1972), there was conflicting evidence with respect to claimant's intoxication. The Commission found that "even though deceased had sufficient alcohol in his blood at the time of his death to be intoxicated, the death of deceased was not occasioned by intoxication." Lassiter, supra, at page 99, 189 S.E.2d at page 770. Defendants argued on appeal that the commissioner erred in failing to find the injuries resulting in claimant's death were occasioned by his intoxication or that he was or was not intoxicated as a matter of law at the time of the accident. We held that G.S. 97--12 does not require the commissioner to find whether the employee was intoxicated as a matter of law, because the statute does not require forfeiture of benefits if the employee is intoxicated at the time of the accident, but does require forfeiture if the injury or death 'was occasioned by the intoxication'. Judge Brock, now Chief Judge, writing for the Court, adopted Chief Judge Mallard's phraseology in saying, at page 101, 189 S.E.2d at page 771,

'(a)lthough there was contradictory evidence, the Commissioner found that the injuries and death of Lassiter 'was not...