Swillum v. Empire Gas Transport, Inc., 13924

• Decision Date: 18 September 1985
• Docket Number: No. 13924,13924
• Citation: 698 S.W.2d 921
• Parties: Ronald A. SWILLUM, Respondent, v. EMPIRE GAS TRANSPORT, INC., and United States Fire Insurance Company, Appellants.
• Court: Missouri Court of Appeals

Page 921

698 S.W.2d 921

Ronald A. SWILLUM, Respondent, v. EMPIRE GAS TRANSPORT, INC., and United States Fire Insurance Company, Appellants.

No. 13924.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 18, 1985.

Motion for Rehearing or Transfer

Denied Oct. 4, 1985.

Application to Transfer Denied

Nov. 21, 1985.

P. Pierre Dominique, Jefferson City, for appellants.

John W. Inglish, Inglish & Riner, P.C., Jefferson City, for respondent.

CROW, Judge.

Empire Gas Transport, Inc. ("employer") and its workers' compensation insurer, United States Fire Insurance Company, appeal from an award of the Labor and Industrial Relations Commission ("Commission") affirming an award of an administrative law judge of the Division of Workers' Compensation granting Ronald A. Swillum ("claimant") benefits under The Workers' Compensation Law, chapter 287, RSMo Supp.1981, for temporary total disability and medical expenses.

Appellants insist that the administrative law judge and the Commission erred in making certain findings and in failing to make certain other findings. Inasmuch as we review only the award of the Commission, not that of the administrative law judge, Sample v. Monsanto Chemical Co., 664 S.W.2d 625, 626 (Mo.App.1984); Conrad v. Royal Brokerage Company, Inc., 612 S.W.2d 13, 14 (Mo.App.1980), we disregard appellants' assignments of error concerning the administrative law judge.

Claimant, a truck driver, was injured January 15, 1982, when an "eighteen-wheeler" he was operating overturned. Facts found by the Commission and unchallenged by appellants are recited hereunder in quotation marks.

"On January 14, 1982, claimant finished work at approximately 5:00 p.m., bought two six packs of sixteen ounce cans of beer, and returned to his home in California, Missouri. Between 6:00 p.m. and 10:00 p.m. claimant consumed all twelve cans of beer and went to bed at approximately 10:30 p.m. There is no other evidence relevant to this case that claimant consumed any other intoxicant. Claimant arose at 2:00 a.m. and drove back to employer's plant in Jefferson City, Missouri, loaded his truck, which is a propane gas truck, and drove to Versailles, Missouri, arriving at Versailles, Missouri at approximately 3:45 a.m. Claimant unloaded his trailer at the employer's plant and returned to Jefferson City, Missouri, to reload his truck.

"In order to comply with state truck weight limits, employer prohibits employees from filling its propane gas trucks in excess of 8,000 gallons of propane. Claimant knew about this rule and about the state law setting weight limits. In reloading, claimant set the meter on the pump which was filling his truck to shut off automatically at 8,000 gallons. The meter, however, failed to function, and the tank filled to 9,000 gallons. Claimant knew that he could drive to employer's plant approximately one-quarter mile away and pump off the excess gas. Although he knew his truck was overloaded and that this was a violation of company rules and state law, he failed to pump out the excess.

"Claimant's destination was Horseshoe Bend, Arkansas, and claimant knew that the specified route included taking U.S. Highway 63 from Jefferson City, Missouri, all the way to West Plains, Missouri. This route had been specifically designated by the employer. Claimant also knew that there was a truck weight station located between Licking, Missouri, and West Plains, Missouri on U.S. Highway 63 located at or near Willow Springs, Missouri. In order to avoid a confrontation at the weight station, claimant deviated from his designated route at Licking, Missouri, and turned off of U.S. Highway 63 onto Missouri State Highway 137. Claimant denied he did this for any purpose of his own. Claimant admitted that U.S. Highway 63 is easier to drive than Missouri State Highway 137. However, the difference in mileage between the two routes is insignificant.

"At approximately 8:00 a.m., three miles after claimant turned onto Missouri State Highway 137, he lost control of his truck and it overturned. Claimant attempted to telephone his employer to report the accident, but the employer could not understand what he was trying to say. Claimant was taken by ambulance to the Texas County Memorial Hospital and treated for a head laceration. He was discharged from the hospital the following day.

"At 10:40 a.m., January 15, 1982, while in the emergency room at the hospital, claimant consented to a blood alcohol test. The report from the Ozark Clinical Laboratory showed the level of alcohol in claimant's blood to be 0.17%. The discharge summary stated claimant's blood alcohol content was 0.15% instead of the 0.17% indicated on the laboratory report. The report of the attending physician indicated a strong odor of alcohol on claimant's breath, and the nurse's records state that when claimant was checked into his room at 12:05 p.m. there was a strong odor of alcohol on his breath and clothing. Claimant attributed the strong odor of alcohol upon his person due to the presence of a bottle of ether alcohol in the cab of the tractor which spilled when the accident occurred. Claimant testified that he had not consumed any alcohol since 10:00 p.m. the preceding night and there was no evidence to contradict this testimony.

"Claimant admitted he was ticketed and pled guilty to failing to have his vehicle under control and claimant paid the fine."

Appellants' first point asserts the Commission erred in finding that the extent of claimant's intoxication "did not take him out of the scope and course of his employment." Specifically, say appellants, the Commission failed to consider § 577.030.1(3), RSMo 1978, ¹ which provided:

"If there was ten-hundredths of one percent or more by weight of alcohol in the person's blood, this shall be prima facie evidence that the person was intoxicated at the time the specimen was taken."

Appellants emphasize that the test of claimant's blood within 3 hours after the accident "showed his blood alcohol content level to be 0.17%."

Appellants also argue in support of their first point that the Commission failed to consider "other indicia" of the extent of claimant's intoxication including (a) claimant's admission that when he phoned the employer's terminal they could not understand what he was talking about, (b) claimant's admission that the highway patrolman thought he could smell alcohol on claimant, (c) a note by the emergency room nurse that there was a strong odor of alcohol on claimant's breath and clothing, (d) a doctor's note at 12:05 p.m., January 15, noting "alcoholic breath," and (e) a physician's progress note stating "alcohol intoxicated & severe alcohol breath."

Appellants maintain that the evidence compelled a finding that claimant "was so physically unable to operate and control his vehicle that he cannot be deemed to have been working within the scope of his employment."

The law applicable to this contention is well settled in Missouri. In Phillips v. Air Reduction Sales Co., 337 Mo. 587, 85 S.W.2d 551, 555 (1935), we find this:

"Appellants do not contend that there is anything in our Compensation Act which forfeits the right to compensation upon a showing that an employee had been drinking before going to work. Some states have made specific provisions concerning it.... If there should be similar provisions in our act, it is for the Legislature to provide them, not this court. Until the Legislature sees fit to do so, we cannot deny compensation because of intoxication, at least unless it was shown that the degree of intoxication was such that it could be held that the injury did not arise out of the employment because the employee could not have been engaged in it."

Cases since Phillips have consistently followed the rule that intoxication of an employee is a defense to a workers' compensation claim only if it be shown that the employee was intoxicated to such an extent that it was impossible for him to physically and mentally engage in his employment. Page v. Green, 686 S.W.2d 528, 532 (Mo.App.1985); Brown v. Mid-Central Fish Co., 641 S.W.2d 785, 787 (Mo.App.1982); McCue v. Studebaker Automotive Sales, Inc., 389 S.W.2d 408, 411-12 (Mo.App.1965); Coonce v. Farmers Ins. Exchange, 228 S.W.2d 825, 827-28 (Mo.App.1950); O'Neil v. Fred Evens Motor Sales Co., 160 S.W.2d 775, 778-79 (Mo.App.1942).

The Commission considered the issue of claimant's intoxication and made the following findings, set off by quotation marks.

"The Commission finds in the instant case that the competent and substantial evidence does not support a finding that the claimant was intoxicated to such an extent that it was impossible for him to physically and mentally engage in his employment. The evidence is uncontradicted that at least ten hours had elapsed from claimant's final consumption of any intoxicating liquor and the accident. The evidence is also uncontradicted that prior to the accident claimant had been working for six hours. This six hour working period included the following: the claimant drove from his home in California to the employer's plant in Jefferson City; the claimant drove a tractor-trailer from Jefferson City to Versailles; the claimant returned in the tractor-trailer from Versailles to Jefferson City; the claimant then drove a tractor-trailer from Jefferson City to a few miles south of Licking, Missouri. The only conclusion the Commission can come to from this evidence is that claimant was physically and mentally capable of engaging in his employment. The fact that his blood alcohol level content was 0.17% is in no way determinative of the issue. From the evidence, the claimant did not abandon his employment due to intoxication."

Whether an employee was intoxicated to such extent that he could not be engaged in the furtherance of his employer's business at the time of injury was held to be a question of fact to be determined by the Commission in O'Neil, 160 S.W.2d at 778-79. In reviewing...