Karns v. Liquid Carbonic Corp.

Smith, J., delivered the opinion of the Court. Appellant, William J. Karns (Karns), was injured on June 30,1972, while operating the truck of his employer, appellee, Liquid Carbonic Corporation (Liquid Carbonic). The ³ Workmen’s Compensation Commission found “that the claimant’s conduct was wilful due to alcoholic intoxication.” For that reason, the claim was disallowed. On appeal to the Circuit Court for Anne Arundel County the jury determined that the injury did not result solely from intoxication but did result from willful misconduct.

Accordingly, the determination of the Commission was affirmed. The Court of Special Appeals affirmed in Karns v. Liquid Carbonic Corp., 22 Md. App. 460 , 323 A. 2d 642 (1974). We granted the writ of certiorari in order that we might consider the contention of Earns that under the Maryland Workmen’s Compensation Act he could not be denied benefits on the basis of willful misconduct if that willful misconduct involved the consumption of alcoholic beverages since the jury had already determined that Earns’ injuries did not result solely from his intoxication. Maryland Code (1957) Art. 101, § 45, in effect on the date of the accident provided: “Notwithstanding anything hereinbefore or hereinafter contained, no employee or dependent of any employee shall be entitled to receive any compensation or benefits under this article on account of any injury to or death of an employee caused by self-inflicted injury, the wilful misconduct, or where the injury or death resulted solely from the intoxication of the injured employee.” 1 Related language is found in §§ 15 and 64.

By § 15 the act is not applicable “where the injury is occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty.” By § 64 there is a presumption “[t]hat the injury did not result solely from the intoxication of the injured employee while on duty.” ⁴ The facts were summarized by Judge Moore for the Court of Special Appeals: “Mr. Earns, age 33 at the time of the accident on June 30, 1972, 200 pounds, an experienced truck driver, married, and the father of two children, had been with the appellee-employer for more than ten years at the time of the hearing before the Commission in August, 1972. He was also the shop steward of the Teamsters’ Union. The employer ran a dry ice, CO2 cylinder gas business; 75% to 80% of the customers were independent restaurants and bars and approximately 25% of the business was with the Gino’s chain. Appellant received a salary plus commission.

On the day of the accident, he was driving a 1965 International Truck, van-type, with a load of gas cylinders which weighed approximately 7,000 pounds. This was not his regular vehicle but he had inspected it and found no mechanical defects. “After lunch, he made a delivery to Glacken’s Bar on Pulaski Highway. He was there from 2:25 until about 3:30 during that time delivered 2 cylinders and had some drinks. The barmaid testified that he had as many as six bourbons and beers (‘boilermakers’); that he told her in conversation that he ‘had been drinking all day’ and that he purchased a ‘six-pack’ of beer before he left.

Mr. Earns admitted the purchase but denied that he was a ‘drinking man’ and testified that he had a total of ‘three shots’ and ‘three small drafts.’ “When he left Glacken’s he was supposed to stop next at a Gino’s but traffic on the lot prevented him. He proceeded to Old Philadelphia Road (Route 7) intending to ‘come back in town and do my next stop there.’ The accident occurred after he crossed Big Gunpowder River Bridge, about five miles from his last stop. Appellant testified on cross-examination that it took him 25 minutes to ⁵ travel this distance. Before the bridge, he stated, there is a long, steep hill.

As he proceeded down the hill, the truck started to swerve. He thought something was wrong with the rear wheels because when he applied the brakes, the truck ‘leaned’ as if capsizing. He released the brakes, resigned to riding it out, intending to apply the brakes when he reached the bottom. He had difficulty controlling the vehicle and was using both sides of the road as much as possible; there was no other traffic on the road, he said.

The heavy gas cylinders had broken loose from their chains and the weight was shifting back and forth. After crossing the bridge at the bottom of the hill, he pumped the brakes. The right rear wheel locked and the truck overturned, spilling its contents on the roadway. “After the accident, it was ascertained that the retread of one of the right rear dual wheels had peeled off. Mr. Earns testified on cross-examination that this ‘caused the truck to jump up and down . . . the cylinders to break loose and the truck to swerve.’ The evidence was undisputed, however, that all four rear (dual) tires were still inflated after the accident. “A sample of appellant’s blood was taken, with his consent, at the hospital to which he was removed.

The test revealed that at 5:45 p.m. when the sample was taken, the blood alcohol concentration was 0.16%. There was also expert testimony that, at the time of the accident (one hour and 45 minutes before the test) his alcohol concentration was actually between 0.18% and 0.24%. Under Art. 35, § 100, a blood alcohol concentration of 0.10% raises a presumption that the person’s driving ability was impaired; at 0.15%, intoxication is presumed. “There was evidence before the jury that the union contract covering employees of Liquid ⁶ Carbonic Corporation provided that drunkenness, drinking during working hours or being under the influence of liquor or drugs during working hours, including lunch time, constituted grounds for immediate dismissal. The Motor Carrier Safety Regulations of the U. S. Department of Transportation, received in evidence, prohibit (§ 392.S) consuming an intoxicating liquor within 4 hours before having physical control of a motor vehicle and being under the influence of an intoxicating liquor while operating a vehicle; even possession of an intoxicating liquor, regardless of its alcoholic content, while operating a vehicle is prohibited.” Id. at 462-64.

As pointed out by Judge Moore, Code (1957, 1970 Repl. Vol.) Art. 66V2, § 11-902 makes it “unlawful for any person to drive or attempt to drive or to be in actual physical control of any vehicle within this State while he is in an intoxicated condition” or “while his driving ability is impaired by the consumption of alcohol.” The Maryland Workmen’s Compensation Act was enacted by Chapter 800 of the Acts of 1914. On May 11, 1913, Governor Phillips Lee Goldsborough appointed a commission “to prepare a bill on the question of Employers’ Liability and Workmen’s Compensation Laws to be submitted to the General Assembly at its session held in 1914.” The report of that commission to the Governor, submitted under date of November 15, 1913, recommended the enactment of the appended statute, said to be the Uniform Workmen’s Compensation Act, § 4 of which provided: “No compensation shall be allowed for an injury caused (1) by the employee’s wilful intention to injure himself or to injure another, or (2) by his intoxication.” The proposed act contained no section or language concerning presumptions relative to intoxication similar to ⁷ that contained in § 61 of Chapter 800 of the Acts of 1914, § 64 in today’s act, to which we have made reference. What was enacted by the General Assembly as § 14 of Chapter 800, with the exception of one word, read as does § 15 today.

It provided, in language identical to that in present § 15, that the coverage was applicable “except where the injury [was] occasioned by the wilful intention of the injured employe to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employe while on duty.” It then went on to provide: “Where the injury is occasioned by the wilful intention of the inj ured employe to bring about the injury or death of himself or of another, or where the injury results from the intoxication of the injured employe while on duty, neither the injured employe nor any dependent of such employe shall receive compensation under this Act.” By Chapter 597 of the Acts of 1916 the word “solely,” found in § 15 today, was added to that sentence so that it read: “Where the injury is occasioned by the wilful intention of the injured employe to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employe while on duty, neither the injured employe nor any dependent of such employe shall receive compensation Under this Act.” The original act provided in § 45, the antecedent of today’s § 45: “Notwithstanding anything hereinbefore or hereinafter contained, no employe or dependent of any employe shall be entitled to receive any compensation or benefits under this Act, on account of any injury to or death of an employe caused by a self-inflicted injury, the wilful misconduct or the intoxication of such employe.” ⁸ This, too, was amended by Chapter 597 of the Acts of 1916 so that it read (then called § 46): “Notwithstanding anything hereinbefore or hereinafter contained, no employe or dependent of any employe shall be entitled to receive any compensation or benefits under this Act on account of any injury to or death of an employe caused by self-inflicted injury, the wilful misconduct, or where the injury or death resulted solely from the intoxication of the injured employe.” Since § 61 of the original act provided that there was a presumption “[t]hat the injury did not result solely from the intoxication of the injured employee while on duty,” as does § 64 today, the amendments in 1916 really only brought all of the language of the act in line with § 61. The first case to come before the Court on the subject of intoxication after the enactment of the Workmen’s Compensation Act in 1914 was American Ice Co. v. Fitzhugh, 128 Md. 382 , 97 A. 999 , 1917D Ann. Cas. 33 (1916). The Court said relative to the facts in that case: “The evidence shows that Seymour Fitzhugh was employed by the appellant, the American Ice Company, as driver of a two-ton ice and coal wagon; that his duties also required him to load and unload the wagon, and that on the 12th of December, 1914, while driving the wagon of the company, loaded with oysters shells, along North avenue in Baltimore City he fell or was thrown from the wagon and killed. The ice company offered evidence tending to show that he was drunk at the time of the accident, and that the accident was due to his intoxication.” Id. at 386 .

The portion of the opinion pertinent to the question here at hand concerned the propriety of the ruling of the trial court on prayers. The jury had been instructed: “ ‘If they shall find from the evidence that the deceased, Seymour Fitzhugh, met his death in an ⁹ accident while in the employ of the American Ice Company, and in the course of his said employment, and that his said death was not due to any self-inflicted injury, or willful misconduct, or intoxication on the part of the said Seymour Fitzhugh, then the verdict of the jury must be for the claimants. And the jury are further instructed that it is presumed by the law, in the absence of substantial evidence to the contrary, that the death of said Seymour Fitzhugh was not occasioned by his willful intention, and that his said death did not result solely from intoxication while on duty.’ ” Id. at 390-91 . The Court approved that prayer.

The employer had offered prayers of which the Court said: “These prayers ignore the provision of the Act which disentitles the employee to recover only where intoxication is the sole cause of the injury which results in death. The prayers properly present the defense of contributory negligence applicable to ordinary cases of negligence, but the Act in question was designed to abolish the defense of contributory negligence in cases falling within its provisions, and it is only where intoxication is the sole cause, and not the contributing cause of the injury that it can be relied on as a defense to the claim of the employee or his dependents. In other words under the terms of the Act the injury for which compensation is sought must be due exclusively or entirely to the intoxication of the employee in order to constitute a defense to the claim. Sub-section 7 of section 61 declares that ‘death,’ referred to as the basis of compensation under this Act, means ‘only death resulting from such injury,’ and where the injury, which results in the death of the employee, results solely from intoxication the defendants are not entitled to compensation.” Id. at 391-92 (Emphasis in original.) ¹⁰ On motion for modification of the opinion the Court said: “Where, therefore, the intoxication of the injured employe is relied on as a defense, it must be made to appear that the injury, that is to say the accident which resulted in the injury for which compensation is sought, was caused solely and exclusively by the intoxication of such employe.

In other words, the injury for which compensation is required is the ‘accidental personal injury’ of the employe resulting in his ‘disability or death,’ except where such injury, or the accident resulting in such injury, is attributable solely and exclusively to ‘the intoxication of the injured employe while on duty.’ ” Id. at 393 . (Emphasis in original.) In S. Rosenbloom, Inc. v. Willingham, 190 Md. 552 , 59 A. 2d 311 (1948), the employee drove his car on to the Chesapeake Bay Ferry at Matapeake. A ferry employee drove it off at Sandy Point and parked it about 75 feet beyond the ferry slip, facing in the direction of Baltimore. He had noticed that Willingham staggered slightly when he left the car at Matapeake, but he staggered more than ever and came down the wrong stairway when the ferry reached Sandy Point.

The wife testified that in their 20 years of married life she had never seen her husband intoxicated. About 35 minutes after the ferry left Sandy Point on its return trip to Matapeake the employee drove his car overboard and was drowned. The police officer who attempted to revive him did not detect any odor of alcohol or find any bottle on his person. Among the objects that fell from the vehicle when it was recovered was a half-pint bottle of whiskey, still containing one drink.

The employer contended that compensation should be denied on the ground that death was due solely to intoxication while on duty. Judge Henderson there said for the Court: “There was no evidence that would supply any motive for suicide. Compare Krell v. Maryland Drydock Co., [ 184 Md. 428 , 41 A. 2d 502 (1945)]. No ¹¹ one saw the decedent take a drink.

His conduct may have been due to alcohol or something else. Even if we should draw the inference that he was intoxicated, we think the evidence falls short of establishing that intoxication was the sole cause of the accident, as required by the statute. Compare Southern Can Co. v. Sachs, 149 Md. 562 , 131 A. 760 , 43 A.L.R. 417 ; Baltimore Dry Docks & Shipbuilding Co. v. Webster, 139 Md. 616, 628 , 116 A. 842 , and American Ice Co. v. Fitzhugh, 128 Md. 382 , 97 A. 999 , Ann. Cas. 1917D, 33. That intoxication was a contributing cause is not sufficient, it must be the exclusive cause.

The action of the decedent was more suggestive of dementia than intoxication. We cannot say that the trial court was clearly wrong in finding that causes other than intoxication played a part in the accident.” Id. at 558. Smith v. State Roads Comm., 240 Md. 525 , 214 A. 2d 792 (1965), involved the death of an employee of that commission in an accident in which his pickup truck went off of Liberty Road and struck a telephone pole, causing the employee’s death. As Judge McWilliams put it for the Court: “In the case before us the fact of intoxication, if not actually admitted, is established, for the first time in Maryland, by evidence which is both overwhelming and unchallenged.

Whether or not the trial judge was clearly erroneous in concluding that the death of Smith resulted solely from his intoxication is the issue raised by appellant’s principal contention and the one which we shall consider first.” Id. at 529 . The case was tried in the Baltimore City Court without a jury. The trial judge found that death resulted solely from the intoxication of the employee. The evidence showed the presence of 0.27% alcohol in his blood.

There was no evidence of any mechanical defect in the vehicle nor any evidence of malfunction in its operation. There was no evidence of ¹² blowout or other tire trouble nor of any defect in the road. Applying what was then Maryland Rule 886 a (now Rule 886), the Court stated that it could not say that the trial judge’s finding that intoxication was the sole cause of the accident was clearly erroneous and thus affirmed the judgment. Judge McWilliams also said for the Court: “Appellant argues that where intoxication and the hazards of the employment concur the claimant must prevail; that Smith, even though intoxicated, was in the course of his employment and compensation cannot be denied his widow.

If appellant is right, then the Maryland statute is meaningless and we do not agree that it is meaningless. We agree with the New Jersey court that if the employment does no more than supply the setting, the stage or the situation in which the injury occurs, if it is no more than an inactive condition and not a moving cause, compensation must be denied. Concurrence of intoxication and the setting, alone, is not enough. There must be in addition, if compensation is to be awarded, some active or moving or contributing cause.” Id. at 534-35 .

(Emphasis in original.) In Balt. Car Foundry Co. v. Ruzicka, 132 Md. 491 , 104 A. 167 , 4 A.L.R. 113 (1918), the Court first faced the issue of willful misconduct. The employee was crushed in the car-erecting shop of his employer. As he was starting to leave the shop on his way to his home he tried to pass between two of a number of finished cars standing at intervals on the