Board of Commissioners of Henry County v. Dudley , 167 Ind. App. 693 ( 1976 )

Concurring and Dissenting Opinion

White, J.,

— The only issues of fact before the board were whether (1) plaintiff’s appellee Dudley was intoxicated at the time of his injury and, if so, (2) whether his injury was due to such intoxication. Ind. Ann. Stat. § 22-3-2-8 (Burns Code Ed., 1974) provides that if the defendant sustains the burden of proving the affirmative of both these issues no compensation shall be allowed.

The Industrial Board made no findings of fact, either general or special, on those issues. It merely recited the evidence relevant thereto. It thus failed to execute the mandate of Ind. Ann. Stat. § 22-3-4-7 (Burns Code Ed., 1974) that it file its award “with the finding of the facts on which it is based.” Whispering Pines Home for Senior Citizens v. Nicalek (1975), Ind. App., 333 N.E.2d 324, 326, 48 Ind. Dec. 568, 570; Transport Motor Express, Inc. v. Smith (1972), Ind. App., 279 N.E.2d 262, 29 Ind. Dec. 417; same case (1972), Ind. App., 289 N.E.2d 737, 34 Ind. Dec. 42; same case (1974), 262 Ind. 41, 311 N.E.2d 424, 42 Ind. Dec. 48. For that reason, and not for the reasons stated by the majority, I join in reversing the award.

Furthermore, I cannot agree with the majority’s conclusion that the only reasonable inference from the evidence (which it characterizes as “uncontradicted”), “is that Dudley was intoxicated and that his injuries were due to his intoxication which proximately caused the collision”. I do agree, however., that such an inference is reasonable and if the board had made such a finding its award of compensation would be contrary to law. In that event it would be our duty to reverse and remand with directions to enter an awárd denying' compensation.

As I read the majority’s opinion, it holds that the board found (i.e., “necessarily concluded”) that Dudley’s blood alcohol level was .41 % If I could so interpret the board’s findings, I would concur in reversing and remanding with directions to enter an award denying compensation. But so far as my reading discloses, the nearest the board came to making such a finding is in its recital that “the officer conducting the test testified that the test result was .41, et.” Other recitals suggest that the board may have entertained serious doubt as to the accuracy of that test result. Unfortunately the board’s so-called “findings” are so vague, ambiguous, muddled, and incomplete that it is impossible to state with any degree of certainty the rationale on which compensation was awarded. However, I can only rationalize the result on the hypothesis that the board rejected the testimony that Dudley’s blood alcohol content was .41 %.¹

Wright v. Peabody Coal Co. (1948), 225 Ind. 679, 77 N.E.2d 116, was a case in which the Appellate Court had reversed a negative award “with instructions ... to enter an award in favor of appellant in accordance with this opinion. . . .” (73 N.E.2d at 695.)² That result was reached because thé Appellate Court had concluded that “the evidence having probative value is without conflict and ... is so conclusive in its character as to force a conclusion contrary to that arrived at by the Industrial Board.” (73 N.E.2d at 694.) In reversing the judgment of the Appellate Court and ordering it to affirm the award, the Indiana Supreme Court said:

“. . . of course the trier of facts cannot arbitrarily reject items of oral evidence but, even though a particular item of evidence is not expressly or directly contradicted, this does not prevent the trier from taking into consideration all of the other evidence including circumstances and surroundings that might in any way affect the weight or credibility of such evidence, and the trier may disregard oral evidence if considered unreasonable or inconsistent with facts and circumstances shown by the other evidence in the case.” (225 Ind. at 687.)

Some of the circumstances which may have led the board to reject the testimony as to the blood test results (if it did) are alluded to in the board’s “findings”, others may be found in Dudley’s arguments relating to the taking and preservation of the blood sample. Other such circumstances are the failure of Trooper Petree to detect the odor of alcohol on Dudley even though he was close enough at least twice to have done so, especially if Dudley had .41% alcohol in his blood; the absence of direct or circumstantial evidence, other than odor in the truck, and the blood test, that Dudley had been drinking in it prior to the accident; and finally the doubt arising from the incredibly high percentage of blood alcohol testified to by Officer Asa who performed the blood test. (Dudley could not have climbed into and started his truck if he was “in a state ranging from stupor to coma” [majority’s note 4], from drinking at some stop en route.)

Had the board made a finding to the effect that the evidence of intoxication was insufficient to sustain defendant’s burden of proving intoxication, I would vote to affirm the award. Likewise, I would vote to affirm an award denying compensation were it supported by a satisfactory finding of facts sustaining the defense of intoxication.

Only the board has the statutory authority to decide which finding should be made. That is the lesson of Cole v. Sheehan Construction Company (1944), 222 Ind. 274, 280, 53 N.E.2d 172, 175:

“The Appellate Court found that the undisputed evidence produced by the appellant established that she and the decedent were husband and wife and they were living apart at the time of his death for their own convenience. The court concluded that, as a consequence, the appellant was entitled to compensation. Cole v. Sheehan Construction Co. (1943), 51 N.E.2d 391. It is immaterial which party produced the evidence and it does not necessarily follow that there was no conflict in the evidence merely because the testimony was undisputed. A conflict may arise out of the testimony of a single witness, though it is not disputed by any other testimony. McKee v. Mutual Life Ins. Co. (1943), ante, p. 10, 51 N.E.2d 474. Since the full board made no finding as to some of the material issues the problem presented is not that of determining whether there is some evidence tending to support an award. We think, therefore, that it was an invasion of the province of the full board for the Appellate Court to undertake to find the ultimate facts in the first instance. The statute does not contemplate that the functions of the Industrial Board may be assumed by the courts. The better practice would appear to be to remand the proceeding to the board with directions for it to discharge its statutory duty by finding the essential facts, and by entering an award based thereon. When that has been done any party feeling aggrieved may have a judicial review according to the established practice.”

I would reverse the award and remand the case to the board with directions to find the facts relevant to the defense of intoxication and to enter an award accordingly.³

Note. — Reported at 340 N.E.2d 808.

1 . The last sentence of the majority opinion’s note 4 is: “The Board apparently accepted the blood alcohol test (.41%) because it states, ‘. . . there is no additional evidence to establish . . . intoxication . . The inference I draw is quite the opposite, i.e., that because there is “no additional evidence” intoxication has not been established.

2 . The Appellate Court ■ opinions are found in 73 N.E.2d 692, and 74 N.E.2d 744.

3 . An adequate finding of the specific facts may require some finding as to the credibility of some of the testimony. See, for example, finding No. 5 in Newman v. State (1975), 263 Ind. 569, 334 N.E.2d 684, 685.