NAPA/General Automotive Parts v. Whitcomb

• Decision Date: 20 August 1985
• Docket Number: No. 2-1184,2-1184
• Citation: 481 N.E.2d 1335
• Parties: NAPA/GENERAL AUTOMOTIVE PARTS, Defendant-Appellant, v. Helen WHITCOMB, et al., Plaintiff-Appellee. A 340.
• Court: Indiana Appellate Court

Page 1335

481 N.E.2d 1335

NAPA/GENERAL AUTOMOTIVE PARTS, Defendant-Appellant, v. Helen WHITCOMB, et al., Plaintiff-Appellee.

No. 2-1184 A 340.

Court of Appeals of Indiana Third District.

Aug. 20, 1985.

Robert C. Rupp, Donn H. Wray, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for defendant-appellant.

F. Boyd Hovde, John F. Townsend, Jr., Townsend, Hovde, Townsend & Montross, Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

NAPA/General Automotive Parts (NAPA) appeals from the Industrial Board's award of death benefits, medical expenses and funeral expenses to Helen Whitcomb and her two children for the death of her husband Steven.

Steven sustained fatal injuries when his car left a curved road in Hancock County on May 7, 1981. He suffered severe head injuries after being thrown from his car which had apparently flipped end over end. There were no skidmarks in the area where the car must have left the road nor were there any witnesses to the accident.

Prior to the accident Steven had been working with John Burkett, the manager of the Pendleton Auto Supply, a NAPA customer. Both men worked together at the Pendleton store from early that morning until approximately 5:30 p.m. at which time they went to a bar for food and drinks. From there the two men went on to a "strip joint" where they had more drinks and shot some pool. At approximately 12:30 a.m. the men left and Steven dropped Burkett off at the Pendleton store before starting for home. The wreck occurred on his way home.

A hearing was conducted on Helen Whitcomb's claim for compensation before a single member of the Industrial Board. NAPA sought Full Board review of the initial award entered in favor of Helen Whitcomb. On October 22, 1984, after reviewing the matter, the Full Industrial Board voted to adopt the initial award including all of the single hearing member's findings of fact. The findings relevant to this appeal are as follows:

"That plaintiff's husband, Steven Whitcomb, died on May 7, 1981, as a direct result of a one car automobile collision.

It is further found that at the time of the collision, plaintiff's decedent had a blood alcohol level of .13%; that at the time of the collision plaintiff was intoxicated.

It is further found that plaintiff's decedent and John Burkett had been drinking the evening prior to the collision; that John Burkett was the manager of Pendleton Auto Supply and that plaintiff's decedent had no expense account.

It is further found that the undisputed evidence in the record is that plaintiff's decedent was expected to entertain business associates including persons such as John Burkett in the furtherance of defendant's business.

It is further found that even if plaintiff's decedent was not instructed to drink with business associates, it is only reasonable to believe that the defendant was aware of the practice and, at the least, acquiesced in such activity.

It is further found that the defendant failed to prove that the intoxication of plaintiff's decedent was the proximate cause of the collision.

It is further found that even had the defendant proven intoxication to have been the proximate cause, that the defendant acquiesced.

It is further found that Defendant's Special Answer, filed May 6, 1983, is denied.

"It is further found that at the time of the collision, plaintiff's decedent was on his way home and was in the course of his employment.

It is further found that the plaintiff's decedent was attended by several medical vendors which vendors are statutory medical.

It is further found that the plaintiff is entitled to last expenses.

It is further found that plaintiff's decedent was survived by plaintiff, Helen Whitcomb, James Whitcomb and Robert Whitcomb, who are each presumptive dependents."

NAPA now appeals from the Full Board's decision, presenting a single issue for review: Was the Board's award contrary to law because NAPA sustained its burden of proving that Steven's death was due to his intoxication and due to the commission of the offense of driving while intoxicated?

IC 22-3-2-8 provides:

"No compensation is allowed for an injury or death due to the employee's knowingly self-inflicted injury, his intoxication, his commission of an offense, his knowing failure to use a safety appliance, his knowing failure to obey a reasonable written or printed rule of the employer which has been posted in a conspicuous position in the place of work, or his knowing failure to perform any statutory duty. The burden of proof is on the defendant." (emphasis added)

The Industrial Board specifically found that decedent was intoxicated at the time of the accident with a .13% blood alcohol level. A level of .10% or more represents prima facie evidence of intoxication for the purpose of proving that an individual is guilty of the offense of driving while intoxicated. IC 9-11-1-7 (1984 Supp.). ¹ However, such a finding standing alone does not mandate the denial of compensation unless NAPA has satisfied its burden of proving that Steven's death was due to or proximately caused by his intoxication or commission of an offense. Seagram & Sons, Inc. v. Willis (1980), Ind.App., 401 N.E.2d 87; DeMichaeli and Associates v. Sanders (1976), 167 Ind.App. 669, 340 N.E.2d 796; Motor Freight Corporation v. Jarvis (1975), 163 Ind.App. 442, 324 N.E.2d 500, 505; Small, Workmen's Compensation Law of Indiana, Section 11.1, pp. 314-20 (1950 Ed.).

The Industrial Board determined without detail that NAPA failed to prove that decedent's intoxication was the proximate cause of the collision. NAPA interprets this finding as a determination that decedent's intoxication did not cause the accident. The Board's findings do not, in fact, make any determination as to what may or may not have caused the accident but do charge NAPA with failing to carry the burden of proof on their special answer.

The cases are legion in Indiana that:

"On appeal, this Court can neither determine credibility of witnesses nor weigh the evidence heard by the Board to determine for whom it preponderates and we will not disturb the Board's Findings unless the evidence is undisputed and leads inescapably to a contrary result. See Bohn Aluminum & Brass Co. v. Kinney (1974), , 314 N.E.2d 780; Smith v. Graver Tank & Mfg. Co. (1973), , 302 N.E.2d 852; Williamson Company v. Review Board of Ind. (1969), 145 Ind.App. 266, 250 N.E.2d 612; Lockwood v. Board of Trustees (1969), 144 Ind.App. 430, 246 N.E.2d 774; Dormeyer Industries v. Review Board (1962), 133 Ind.App. 500, 183 N.E.2d 351; Blue Ribbon Pie Kitchens, Inc. v. Long et al. (1952), 230 Ind. 257, 103 N.E.2d 205; Warren v Indiana Telephone Co. (1940), 217 Ind. 93, 26 N.E.2d 399; Vonnegut Hardware Co. v. Rose (1918), 68 Ind.App. 385, 120 N.E. 608."

Motor Freight Corp. v. Jarvis (1975), 163 Ind.App. 442, 324 N.E.2d 500, 503; see also Martin v. Monsanto Company (1975), 166 Ind.App. 5, 333 N.E.2d 828, 833; Gentry v. Jordan (1975), 166 Ind.App. 695, 337 N.E.2d 530, 532 ("[W]e may only reverse if reasonable men would have been bound to reach a conclusion contrary to the Board's decision." ); Anton v. Anton Interiors, Inc. (1977), 173 Ind.App. 419, 363 N.E.2d 1286; Penn-Dixie Steel Corp. v. Savage (1979), 180 Ind.App. 627, 390 N.E.2d 203; Duncan v. George Moser Leather Co. (1980), Ind.App., 408 N.E.2d 1332; Talas v. Correct Piping Co., Inc. (1982), Ind., 435 N.E.2d 22.

The finding of the Board on NAPA's special answer is a negative finding and cannot be attacked on the ground that there was a lack of evidence to support it, as the decision being against the party with the burden of proof does not rest upon the quantum of evidence. Wilson, Admx. v. Rollings (1938), 214...