Lockhart v. Liberty Mut. Ins. Co.

• Decision Date: 08 February 1977
• Docket Number: No. 53099,No. 3,53099,3
• Citation: 141 Ga.App. 476,233 S.E.2d 810
• Parties: Helen LOCKHART, n/f v. LIBERTY MUTUAL INSURANCE COMPANY et al
• Court: Georgia Court of Appeals

Page 810

233 S.E.2d 810

141 Ga.App. 476

Helen LOCKHART, n/f v. LIBERTY MUTUAL INSURANCE COMPANY et al.

No. 53099.

Court of Appeals of Georgia, Division No. 3.

Feb. 8, 1977.

Rehearing Denied March 2, 1977.

Savell, Williams, Cox & Angel, Andrew Robert Greene, A. Cullen Hammond, Atlanta, for appellant.

Langstaff, Campbell & Plowden, George P. Donaldson, III, Albany, for appellees.

MARSHALL, Judge.

Appellants, survivors of the deceased employee in this workmen's compensation claim, appeal the reversal by the superior court of an award in their favor by the administrative law judge and the State Board of Workmen's Compensation. The issues presented are: (1) whether or not the evidence supports a finding of non-intoxication, (2) whether or not the statement of the decedent as to the cause of the accident was admissible, and (3) whether or not the evidence supports a finding that the injury was work related.

The deceased, Lockhart, was one of two drivers employed by one White to drive a truck for Lumber Transport, Inc. (hereinafter Lumber Transport) with whom White had a contract to furnish the drivers and trucks for Lumber Transport's hauling operation. As a part of his duties, he was required to perform simple maintenance upon his tractor (i. e., minor tune-ups, lubrication, oil changes, and the like). The facts show that he completed a hauling mission for Lumber Transport on a Thursday or early Friday. Lockhart reported to his direct employer, White, on the Friday, but did not submit his time reports or perform any maintenance upon his tractor on that Friday. He was allowed to take the tractor to his lodgings on Friday evening. White testified that Lockhart was required to bring the tractor back to the work area on Saturday, in accordance with usual custom, to complete necessary paper work and to complete required maintenance on the tractor.

On the way to White's place of business early on Saturday morning, Lockhart apparently drove off the road and overturned the tractor (minus its trailer). He suffered a fractured spine and paraplegia. Approximately four months later, Lockhart died as a result of these injuries. At the time of the wreck, the investigating state patrolman obtained a blood specimen which, upon analysis, disclosed that Lockhart had a 0.2 blood-alcohol level. However, there was testimony by a passenger in the tractor (who apparently was intoxicated himself) that Lockhart did not seem to be intoxicated. The police officer, White, and others at the scene and later at the hospital, testified that Lockhart showed no signs of intoxication nor was there any evidence of intoxicants. Over objection of the employer, evidence was admitted that Lockhart stated to the police officer and his employer White, that the accident was caused by evasive action taken by Lockhart to avoid a house trailer.

Based upon this state of facts, the administrative law judge's findings, as amended by the findings of the Full Board of Workmen's Compensation, concluded that notwithstanding the evidence of the blood-alcohol level with its presumption of intoxication, Lockhart was not intoxicated at the time of the accident nor was intoxication a proximate cause of the accident. The board found that the proximate cause of the accident was the evasive action taken by Lockhart to miss the house trailer (that only he had seen). The board also found that because Lockhart was required to bring the vehicle to White's maintenance area to perform routine maintenance on the tractor and was engaged in this required mission at the time of the accident, the accident occurred while Lockhart was performing his employer's business and that the accident arose out of such employment.

Upon appeal by the employer/insurer to the superior court, the findings of fact and conclusions of law were reversed by the superior court. That court concluded the board could not legally disregard the presumption of intoxication, and, therefore, could not disregard the established state of intoxication in arriving at the proximate cause of the accident. The superior court also held that the board erred in accepting the "hearsay" statement of the deceased that the accident was caused by evasive action to miss a house trailer because that statement, in the opinion of the court, did not fit within the res gestae exception to the hearsay rule. Thus the court concluded that there was no competent evidence, other than intoxication, to establish a proximate cause for the overturning. Lastly, the superior court concluded that, inasmuch as there was an employer-employee relationship between Lumber Transport and Lockhart only while Lockhart was actually hauling material for Lumber Transport, under the facts of the case, Lockhart was not carrying out any job-related activities for Lumber Transport at the time of the injury.

Appellants enumerate five errors, all dealing with the failure of the superior court to apply the "any evidence" rule and to construe the evidence in favor of the board's original finding of a compensable accident. Held :

1. A cardinal principle followed by this court in workmen's compensation cases is that neither this court nor a superior court has any authority to substitute itself as a fact finding body in lieu of the Board of Workmen's Compensation. Employers Ins. Co. v. Amerson, 109 Ga.App. 275, 135 S.E.2d 12. Thus a finding of fact by a director or administrative law judge of the State Board of Workmen's Compensation, when supported by any evidence, is conclusive and binding upon the courts, and the judge of the superior court does not have any authority to set aside an award based on those findings of fact merely because he disagrees with the conclusions reached therein. Speight v. Container Corp., 138 Ga.App. 45, 46-47, 225 S.E.2d 496; Turner v. Baggett Transportation Co., 128 Ga.App. 801, 804(3), 198 S.E.2d 412; Indemnity Ins. Co. v. O'Neal, 104 Ga.App. 305(3), 121 S.E.2d 689; Dept. of Revenue v. Graham, 102 Ga.App. 756(2), 117 S.E.2d 902; Hartford Acci. etc. Co. v. Davis, 73 Ga.App. 10(1), 35 S.E.2d 521. Moreover, upon appeal from an award of the State Board of Workmen's Compensation granting compensation, the evidence must be construed in a light most favorable to the party prevailing before the board. Fulmer v. Aetna Cas. etc. Co., 85 Ga.App. 102, 68 S.E.2d 180. For a full discussion of these principles and their application, see Howard Sheppard, Inc. v. McGowan, 137 Ga.App. 408, 410-411, 224 S.E.2d 65.

2. It is at once apparent that the board and the superior court disagreed as to the legal implication of the blood alcohol test results. The board accepted the test and the presumption of intoxication that accompanied a 0.2 level and weighed that against the evidence indicating no intoxication. While the board may have concluded that the evidence showed that Lockhart had been drinking, the board did not feel obligated to accept as mandatory a presumption of legal intoxication when weighed against other evidence indicating a lack of intoxication. The superior court obviously concluded that the board was bound by the presumption, and could not disregard intoxication as a proximate cause of the accident.

". . . In truth there is but one type of presumption in the strict legal meaning of the word, and that is merely a general rule of law that under some circumstances, in the absence of any evidence to the contrary, a jury is compelled to reach a certain conclusion of fact. But a presumption...