Phelps v. Positive Action Tool Co.

Clifford F. Brown, J.,

dissenting. Because I consider today’s decision to be contrary to law, logic, and justice, I dissent.

The majority premises its reversal of the jury verdict primarily on the fact that Phelps was intoxicated at the time of the accident. This reasoning is totally defective for the following reasons.

First, the question of whether Phelps was so intoxicated that he was completely incapable of performing any duty on behalf of his employer is for the jury. There was competent, credible evidence from which the jury could reasonably find this issue in Phelps’ favor, such as the fact that Phelps, a short while before the accident, was clear-minded enough to seek out a specific welder at the drilling site to recruit for his employer. It is evident from the jury’s verdict that it believed this evidence. By overturning the verdict, this court is usurping the jury’s role and substituting its own views for those of the trier of fact. This, of course, is completely contrary to the most basic principles of appellate review. See, e.g., C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279 [8 O.O.3d 261].

The majority, I believe, has fashioned the result in this case to satisfy a need to express its dislike for drunk drivers. I would certainly join eagerly in such a sentiment were this an appropriate setting. But this is not a drunk driving case. Nor is this a case, as the majority apparently wishes it to be, where intoxication was the actual cause of the injury for which the claimant seeks benefits. The jury in the instant cause determined that intoxication was not the proximate cause of the injury. Proximate cause is normally a question of fact for the jury. See, e.g., Cascone v. Herb Kay Co. (1983), 6 Ohio St. 3d 155; Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51. In its haste to announce its condemnation of drunk drivers, this court has ignored this basic principle.

There is no basis whatsoever for overturning the jury verdict on the ground that Phelps’ intoxication was the sole cause of the accident. The ■ evidence presented below was conflicting on this point. There was testimony below, which if believed, proved that the accident was caused by a tire blowout. Again, this court is invading the province of the jury by essentially holding that such evidence is not worthy of belief.

*158Lastly, this court is indulging in judicial legislation. By holding that Phelps’ intoxication disqualifies him from receiving compensation as a matter of law, the majority is creating a new requirement never contemplated by the legislature. R.C. 4123.54 sets forth the sole requirements for entitlement to workers’ compensation. It provides in pertinent part:

“Every employee, who is injured or who contracts an occupational disease, and the dependents of each employee who is killed, or dies as the result of an occupational disease contracted in the course of employment, wherever such injury has occurred or occupational disease has been contracted, provided the same were not purposely self-inflicted, is entitled to receive * * * such compensation for loss sustained on account of such injury, occupational disease or death, and such medical, nurse, and hospital services and medicines, and such amount of funeral expenses in case of death, as are provided by sections 4123.01 to 4123.94 of the Revised Code.” (Emphasis added.)

It is clear from the foregoing that the only requirements for eligibility for benefits are that the injury must be incurred in the course of employment and that the injury must not be purposely self-inflicted. Yet this court today grafts a third requirement onto the statute: the employee must not have been intoxicated at the time of the injury. This exception is not only unjustified, it also sets a dangerous precedent. After today’s decision, a worker who has an alcoholic beverage with his lunch, returns to the work site and is promptly injured by a careless co-worker may lose eligibility for workers’ compensation due solely to the fact that he had indulged in alcohol, even though such fact has not the remotest connection to his injury. The legislature could never have intended such a bizarre result.

By ruling as it does today, the majority fails to exercise judicial restraint and indulges in judicial legislation, despite its alleged abhorrence for such practices. See, e.g., Strohofer v. Cincinnati (1983), 6 Ohio St. 3d 118, 125-127 (Locher, J., dissenting); Albritton v. Neighborhood Centers Assn. (1984), 12 Ohio St. 3d 210, 218 (Holmes, J., dissenting); Balyint v. Arkansas Best Freight System, Inc. (1985), 18 Ohio St. 3d 126, 137 (Wright, J., dissenting).

For these reasons, I dissent.