Smith v. State Roads Commission & State Accident Fund

⁵²⁸ McWirriams, J., delivered the opinion of the Court. On 17 September 1962, within a few minutes of 8:00 p.m., Joseph Leo Smith, an employee of the State Roads Commission, on his way home, drove his pickup truck off of Liberty Road and struck a telephone pole. He sustained injuries which caused his death. A post mortem examination was performed the following morning.

In a specimen of blood taken from the heart there was present a concentration of alcohol amounting to 0.27%, indicating intoxication. Within sixty days the widow (appellant), on behalf of herself and six minor children, presented her claim to the Workmen’s Compensation Commission. A hearing was held 16 January 1963 on two issues. Was the deceased in the course of his employment when fatally injured?

Was the accident the result of intoxication? The Commission found that the deceased was in the course of his employment and that the accident did not result solely from his intoxication. The employer and its insurer (appellees) noted an appeal to the Baltimore City Court. By agreement, the case was submitted for determination to the court without a jury on the single issue of intoxication.

This appeal is from the court’s finding that Smith’s death resulted solely from his intoxication. Not since S. Rosenbloom, Inc. v. Willingham, 190 Md. 552 , 59 A. 2d 311 (1948), have we been asked to consider the language of Sections 15 and 45 of Art. 101 of the Maryland Annotated Code (1957), which provides that where injury or death results solely from the intoxication of the injured employee, no compensation shall be paid. In that case the employee, who during twenty years of married life had never been seen intoxicated by his wife, drove his car off of the Matapeake Ferry at Sandy Point and a few minutes later, after the ferry had left, turned the car around, drove it toward the empty ferry slip and plunged into the Chesapeake Bay. No bottle was found on his person and the police who attempted to revive him by artificial respiration did not detect any odor of alcohol.

Judge Henderson, for the Court, said at 558: “No one saw the decedent take a drink. His conduct may have been due to alcohol or something else. * * * The action of the decedent was more suggestive of dementia than intoxication. We cannot say that the trial court ⁵²⁹ was clearly wrong in finding that causes other than intoxication played a part in the accident.” Judge Henderson also reviewed the earlier cases, in all of which the evidence of intoxication was either conflicting, minimal or presented situations demonstrating that intoxication was not the sole cause of the death or injury. 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. I. The evidence produced at the trial shows that Smith, a resident of New Windsor, was 40 years old, 6 feet tall, and weighed 214 pounds. He commuted daily in his 1948 half-ton Ford pickup truck to White Marsh, a distance of about 55 miles, where the construction of the Northeastern Expressway (now Kennedy Expressway) required his services as an inspector. Because rain fell during most of the last day of his life, Smith and Jack Hartman, another inspector, quit work around 3:30 and went to a tavern nearby.

Smith borrowed five dollars from Hartman and they each had two glasses of draft beer and a barbecue sandwich. Hartman recalled that Smith had a few dollars besides the five he had loaned him. They both left around four o’clock, each going his separate way. Where Smith went or what he did thereafter we do not know.

At 8:08 p.m., Officer Robert Borgmann of the Baltimore County Police received a call directing him to investigate an accident on Liberty Road at a point 8.1 miles north of its intersection with the Beltway. Upon arrival he found Smith’s severely damaged truck lying on the north shoulder of the road just beyond a shallow curve, slightly banked to the left, and 47 feet beyond a telephone pole with which it had collided. The front wheels and the front axle were about half way between the pole and the truck. The pole itself was fractured about four feet above the ground and the impact had pushed it at ground level about a foot away from its normal position.

There were ⁵³⁰ no marks on the road or the shoulder to indicate skidding or sliding prior to the collision. Although it had stopped raining, the surface of the road was damp. Liberty Road at this point is 25 feet wide with a solid double yellow line in the center. The posted speed limit is 30 miles per hour.

There was no evidence of any mechanical defect in the truck nor any evidence of malfunction in its operation. There was no evidence of blowout or other tire trouble nor of any defect in the road. Dr. Russell S. Fisher, the Chief Medical Examiner, testified that both the American Medical Association and the National Safety Council take the position that a person with a concentration of 0.15% alcohol in his blood must be considered under the influence of alcohol insofar as motor vehicle operation is concerned. 1 He said the presence of 0.27% would indicate that the person was highly intoxicated, and that he would show .this-in terms of some staggering and a very clear cut and evident decrease in. his ability to perform finer motions such as ■braking or steering an automobile, walking in a straight line, or any activity requiring a high, degree of physical coordination, and that many people “pass out” at this level. He also said that the amount of alcohol in Smith’s body at the time of ■the accident amounted to a pint of o.ne hundred proof whiskey and that he did not drink less than that amount because that was the amount that was present.

It was stipulated that in September of 1962 in the eight mile stretch .of Liberty Road between the. Baltimore Beltway and the scene of the accident there were located six’ bars, saloons or cocktail- lounges.. It is conceded that Smith habitually used .this part of Liberty Road going to and returning from work. Appellant claims that there were other factors besides intoxication which contributed to the accident.

She cites the fact that the road surface was-damp; that it was a dark, cloudy day; that illumination was poor; that it- was hazy; that excessive speed is indicated; that the telephone pole was 2 feet east of the shoulder; that this was the fifth of a series of curves; ⁵³¹ that some of the curves were double curves. She suggests that any number of things could have happened, such as Smith’s having been blinded by on-coming lights; swerving to avoid an animal; being run off the road by an on-coming car; sneezing; falling asleep. She argues that something else must have contributed to the accident and that a finding that intoxication was the sole cause is pure speculation. She might, with equal force, have argued that the road ran north and south instead of east and west, that the sun was not shining, that it was September instead of May.

We all know that a road surface is damp after a rain and that tire adhesion may be less precise than it is on a dry road, depending, of course, on the type of tread and its condition, the degree of inflation, the surface of the road, the efficiency of the vehicle’s suspension and the judgment and skill of the operator. Every motorist knows that driving on wet, damp roads is one of the facts of life common to all users of the highways. The day was indeed dark and cloudy. But what of that?

This accident happened at night. Perhaps illumination was poor at the scene of the accident but must we not assume that Smith, as the law - requires, had turned on his headlights ? Perhaps it was hazy, but there are many degrees of haziness and there is no evidence here that the haze, if any there was, in any way inhibited visibility. That the pole was 2 feet east of the shoulder has no relevance.

The shoulder was 7 feet wide which would put the pole at least 9 feet from the traveled portion of the road. It is not suggested that under the circumstances this amounted to a hazard in any way peculiar to Smith’s daily travel. Much is made of the curves and the claim of excessive speed. It is impressed upon us that this is the fifth of a series of curves and that some of them were double curves.

What the other four, whether single or double, have to do with this accident has not been demonstrated. The photographs in evidence show a simple, shallow, slightly banked left-hand curve. One could speculate endlessly on what speed would be too great for its successful negotiation. Appellant argues that the damage to the truck and the nature of Smith’s injuries require a finding that his speed was “excessive” or, in other words, that he was going too fast to get ⁵³² safely around the curve.

Appellant does not provide us with a definition of “excessive” as used herein. “Excessive speed” is one side of an equation, the other side of which has many factors which can be arranged in infinite combinations. What weight, for instance, should be given to the skill and experience of the driver? Was he a Stirling Moss or a teen-ager just licensed? Was he drunk or sober and if drunk, how drunk?

How shall the vehicle be rated? Was it a gran turismo or a candidate for the junk yard? What of the suspension — simple or sophisticated? Were the tires sound, balanced, properly inflated, with adequate treads ?

Did the vehicle have its engine in the front or in the rear? Was it driven by the front wheels, rear wheels, or all four wheels? What was the condition of the road — concrete, smooth blacktop, rough macadam, covered with oil, mud, sand, snow, ice? What of the weather?

Was it light, dark, clear, rainy, foggy? We know nothing of Smith’s driving skill. We know nothing of the condition- of his truck except that it was 14 years old. We don’t know how fast it could safely be driven around the curve either by Smith or by Stirling Moss.

It is entirely possible that a skilled driver could have driven Smith’s truck through the curve at speeds greater than his old truck could attain. We know that the curve was there but in itself this signifies nothing. We do not believe there is any meaningful connection between the fact of the curve and the accident. About all that can be said with certainty concerning speed is that Smith was going too fast to be running into telephone poles with safety.

The absence of any evidence of skidding or sliding is some indication that Smith did not or could not reduce his speed, whatever it was, before striking the pole. Nor is there any basis for assuming that Smith could not have brought about the damage to his truck, to the pole, and to himself at a speed of 30 miles per hour or less. Appellant complains that the trial judge was guilty of speculation because he declined to attach any significance to the fact that the road was damp, that the day was dark and that there were curves and indications of “excessive speed.” In the next breath she chides him for not speculating about blinding lights, dogs, cats and other animals, sneezing, falling asleep, being ⁵³³ chased off the road by another car and “countless other possibilities” despite the fact that the record is devoid of any evidence of the things she mentions. Indeed, to quote from her brief, “The exact factor that caused him to run off the road is a matter of strict conjecture.” Appellant offers in support of her contention decisions 2 of the courts of Arkansas, New York and the District of Columbia.

Since we think these decisions are inapplicable here we shall not undertake a discussion of them. The Arkansas statute 3 makes the Commission’s findings of fact conclusive and binding on the court and restricts the review to questions of law. Also prohibited is the production on appeal of any additional evidence. In New York 4 the decision of the Board is final as to all questions of fact and, except in certain cases, as to all questions of law.

In the District of Columbia 5 the findings of the Deputy Commissioner are conclusive upon review, if supported by evidence. Maryland, on the other hand, in common with sixteen other states, authorizes a review of the facts as well as the law. Our statute contemplates a trial which essentially is de novo. Richardson v. Home Mutual, 235 Md. 252 , 201 A. 2d 340 (1964).

We are urged to consider two cases from New Jersey 6 where, as in Maryland, appeals are tried de novo. In O’Reilly v. Roberto Homes, 31 N. J. Super. 387, 107 A. 2d 9 (1954), despite a conflict in the testimony in regard to tire marks and ⁵³⁴ the fact of intoxication, the Commission refused to award compensation. The court reversed the Commission and found in favor of the claimant; Because there was competent believable evidence sufficient to sustain-the court’s finding it was not disturbed by the appellate court. Judge Foster, the trier of facts in this case, also reversed the Commission.

If the evidence supporting his findings is legally sufficient then, if we follow the New Jersey court, we should not disturb his findings. The other New Jersey-case is Olivera v. Hatco Chemical Co., 55 N. J. Super. 336, 150 A. 2d 781 (1959), where the employee, who was -killed by a piece of timber thrown from a nearby centrifuge, had 0.163% alcohol in his system. A medical expert testified that there was no evidence to show that the amount of alcohol in his blood had anything to do with his death. Holding that the employee’s death flowed from the operation of the machine, the court, quoting Kulinka v. Flockhart Foundry Co., 9 N. J. Super. 495, 75 A. 2d 557 (1950), said at 789, “ * * in order to defeat recovery the employer must show by the greater weight of the evidence that the employee’s injury was produced solely by his intoxication.

In other words, the employment must supply no more than the setting, the stage, the situation in which the fall occurred; it cam be no more than an inactive condition as distinguished from a moving cause. If the hazards or risks which are incidental to the employment concur with the employee’s insobriety in producing the fall or