Woosley v. Central Uniform Rental

• Decision Date: 12 February 1971
• Citation: 463 S.W.2d 345
• Parties: Joyce D. WOOSLEY et al., Appellants, v. CENTRAL UNIFORM RENTAL, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 345

463 S.W.2d 345

Joyce D. WOOSLEY et al., Appellants, v. CENTRAL UNIFORM RENTAL, Appellee.

Court of Appeals of Kentucky.

Feb. 12, 1971.

D. H. Robinson, Leland Monhollan, Robinson, Rectenwald, Tackett & DeMoss, Louisville, J. Chester Porter, Givhan & Porter, Shepherdsville, for appellants.

Larry L. Johnson, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellee.

PALMORE, Judge.

Early in the morning of October 18, 1968, Foster J. Woosley was found dead at the wheel of his employer's truck, which had left the highway, struck an embankment, and come to rest against a tree. There were no passengers and no eyewitnesses. A blood sample taken from the body several hours later disclosed a blood alcohol content of .25%, indicating, according to competent expert testimony, a state of 'absolute drunkenness.' The ensuing claim of Woosley's widow and children for the benefits provided by the workmen's compensation law (KRS 342.070) resulted in an award in their favor, from which the employer appealed to the circuit court. KRS 342.385. The widow and children now appeal to this court from a judgment of the circuit court setting aside the award and directing a dismissal of the claim.

The employer specifically pleaded as a defense that Woosley's death was caused by intoxication. The board found that the employer had not met the burden of satisfying it 'that the alleged intoxication was the proximate cause of the accident.' The effect of the circuit court judgment is that the evidence did meet that burden conclusively and as a matter of law, compelling the board to reject the claim.

KRS 342.015(3) provides that no compensation may be paid for injury to or death of an employe 'caused by a willful, self-inflicted injury, willful misconduct or intoxication of such employe.' Though it has been a part of the workmen's compensation law since the beginning (c. 33, § 3, Acts of 1916), the 'intoxication' aspect of this exclusion does not appear to have been a dispositive basis for any opinion of this court denying recovery until Banks v. Department of Education, Ky., 462 S.W.2d 428 (decided January 15, 1971), and in that case it was enmeshed in a holding that by becoming intoxicated and entrusting the operation of his employer's automobile to another intoxicated person the employe had been guilty of wilful misconduct as well as a substantial departure from the course of his employment. The Banks case, incidentally, is distinguishable from Mason-Waller Motor Co. v. Holeman, 284 Ky. 374, 144 S.W.2d 796 (1940), in at least two respects, (1) that in Mason-Waller Motor Co. though intoxication appears to have been present, evidently the issue as presented was confined to whether the employe had abandoned the course of his employment in turning the car over to another driver, and (2) that in Banks the board itself denied the claim, whereas in Mason-Waller Motor Co., the board had allowed it, and in each instance the action of the board was sustained by this court.

No case in this jurisdiction seems to have discussed the meaning of the statutory words 'caused by' in the context of intoxication, though it was held in Ford Motor Co. v. Smith, 283 Ky. 795, 143 S.W.2d 507, 509 (1940), that in the absence of a 'clear showing that either the rapid driving or the drinking was the direct and proximate cause of the accident,' compensation should not be denied to an employe 'merely because he was operating an automobile in excess of the statutory speed limit and had taken two drinks,' the car having left the highway and struck a tree.

Some statutes require that intoxication be the 'sole cause' in order to bar compensation. Those which, like ours, use the words 'caused by' are generally construed to mean proximate cause. Larson's Workmen's Compensation Law, § 34.33.

There have been decisions in other jurisdictions that when the facts disclose, in addition to the intoxication, a special source of hazard bearing upon the accident the intoxication is not the proximate cause. Ibid. The evidence in this case proved that the road on which the accident happened was narrow, hilly and crooked and that the weather conditions were rainy and wet. Apparently Woosley's truck skided as he attempted to negotiate a bad curve on a hill. Nevertheless, the difficulty of driving a motor vehicle under dangerous highway conditions merely increases the likelihood that the driver's intoxication will result in an accident. Moreover, there may be more than one proximate cause, and we are not persuaded that our statute may be construed to require that intoxication be the proximate cause, because from the standpoint of legal causation that would really amount to sole cause. Cf. Campbell v. Markham, Ky., 426 S.W.2d 431, 438--439 (1968). As we construe the statute, it means that if the accident would not have happened but for the intoxication, then it was caused by intoxication. That it may have been or was caused by other things also, proximately or otherwise, is immaterial.

Since in the ordinary course of things a motor vehicle under the exclusive control of the driver does not run off the road if he is exercising ordinary care, the occurrence of such an event gives rise to a rebuttable presumption that it was caused by the driver's negligence. Eaton v. Swinford, Ky., 424 S.W.2d 118 (1968). Further evidence proving conclusively that the driver was intoxicated to the degree that his ability to operate a motor vehicle was 'severely impaired,' as in this case, certainly would enlarge the scope of that presumption to embrace the conclusion (based upon ordinary probabilities) that not only did the accident result from bad driving, but also that the bad driving resulted from the intoxication; and in the absence of explanatory proof sufficient to rebut the presumption or reduce it to the status of a permissible inference the fact-finding agency would be compelled to find that the accident was caused by the driver's intoxication. Therefore, depending on the admissibility of the evidence relating to the blood sample, we are of the opinion that the conclusion reached by the trial court is sound and correct.

Both the board and the circuit court treated the result of the blood test as admissible evidence. ¹ The claimants contend it was inadmissible and that the board should have sustained their motion to exclude it. Without it there would be no substantial evidence of intoxication.

The arguments against admissibility are that the taking of the blood sample was not within statutory authorization and that it was not carried out in such a manner that the analysis of its contents could be accepted as reliable.

Subsections (1) and (2) of KRS 186.565 (c. 184, Acts of 1968, eff. March 27, 1968) provide as follows:

'(1) Any person who operates a motor vehicle in this state is deemed to have given his consent to a chemical test of his blood, breath, urine or saliva for the purpose of determining the alcoholic content of his blood, if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle in this state while under the influence of intoxicating beverages. The test shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle in this state while under the influence of intoxicating beverages. The law enforcement agency by which the officer is employed shall designate which of the aforesaid tests shall be administered, and provide necessary equipment.

'(2) Any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusal, is deemed not to have withdrawn the consent provided in section one of this Act and the test may be given.'

In the same legislative act the following two subsections were added to KRS 189.520:

'(7) Only a physician, registered nurse or qualified medical technician, duly licensed in Kentucky, acting at the request of the arresting officer can withdraw any blood of any person submitting to a chemical test under this act.

'(8) The person tested shall be permitted to have a duly licensed physician of his own choosing administer a chemical test in addition to the one administered at the direction of the police officer.'

Again, as in Com., Dept. of Public Safety v. Brent, Ky., 452 S.W.2d 819 (1970), the constitutionality of these provisions relating to the taking of blood samples is not challenged and we assume but do not necessarily decide it.

Subsection (1) of KRS 186.565 deems the operator of a motor vehicle to have given consent 'if arrested.' It does not purport to say that he consents if not arrested. Then subsection (2) says that such consent is not withdrawn by death, unconsciousness or other incapacity; but if the person who is dead, unconscious or otherwise incapacitated has not been arrested, literally there is no statutory consent to be...