I dissent. There are several controlling factors in this case which the majority opinion has failed to consider, and which compel a conclusion contrary to that reached in said opinion. It is conceded that the accident which caused the death of Oates occurred in and arose out of the course of the employment. When this fact was established the applicants had made out their case. The death certificate and verdict of the coroner’s jury showing the cause of death were not a necessary part of applicants’ case, for they had made out their case once they established that the accident which caused the death of Oates arose out of the employment. The issue as to where the blame for the accident might be lodged was, up to that point, wholly immaterial, because negligence of the employer need not be shown and contributory negligence is no defense. The freedom from liability afforded the employer when the employee is intoxicated, and that intoxication is the cause of the accident, is an affirmative defense. The burden of proving it is squarely placed upon the employer by the workmen’s compensation law. (Lab. Code, § 5705.) Thus, we have a case of the employer coming forward with evidence to establish a defense, the applicants having made out their case. The death certificate must be considered in the light of a rebuttal to the employer’s evidence rather than a part of applicants’ case. We must therefore examine that defense and the rebuttal thereto to see whether the commission could have disbelieved or disregarded the employer’s evidence and found that the employer did not sustain his burden. That it could have done so is clear. It is true that Reynolds, the *242truck driver who was driving a truck on the same route as Oates, the decedent, testified that between about noon and 4:30 in the afternoon while the two drivers were en route to El Centro to pick up their trucks, Oates had a quart of beer and half a pint of whiskey; that on arrival in El Centro he had more whiskey, but when he arrived at the truck terminal at 10 p. m. he walked all right, and the only evidence of consumption of liquor was that he was “talkative” and had the smell of liquor on his breath. Oates then ate some food. At Yuma, Arizona, Oates had a pint of whiskey but as far as Reynolds’ testimony is concerned there was nothing in Oates’ conduct to indicate intoxication. He was driving his truck. Later at Welton, Reynolds expressed the opinion that Oates was a “drunk driver,” and shortly before the accident, that Oates was drunk. However, it is very pertinent to observe that at the coroner’s inquest he was evasive about Oates’ intoxication. He testified: “Would you say the driver had had plenty to drink? Ans. I’d say he had a few. He had another drink at Tonys where we ate. ’ ’ Moreover, it should be remembered that Reynolds was an employee of Oates’ employer and cannot be said to have been unbiased. This court said in Gray v. Southern Pacific Co., 23 Cal.2d 632, 637 [145 P.2d 561] : “It must be remembered that practically all of the witnesses were employees of the defendant and thus cannot be said to be disinterested witnesses. . . . The jury could have disbelieved those witnesses.” How can it be said under these circumstances that Reynolds was wholly unimpeached and that the commission was absolutely bound to accept his evidence? Further it is to be noted that the question of whether or not a person is intoxicated is entirely a matter of opinion (2 Cal. Jur. 10-Yr. Supp., Automobiles, § 26) and such evidence is not binding upon the trier of fact. It may be disregarded. It was said in Southern Pacific Co. v. City of Los Angeles, 5 Cal.2d 545, 548 [55 P.2d 847] : “. . . opinion evidence [which] is not conclusive either upon the trial court or an appellate court.” (See, also, 10 Cal.Jur. 971-2.) In the face of that rule the opinion evidence as to Oates’ intoxication was not binding and could have been disregarded by the commission. Hence, it cannot be said that the evidence on the issue of intoxication was beyond question and that the commission was required to give it full credit and sustain the defense based thereon.
In addition to proving intoxication the employer had the burden of proving that the intoxication was the sole cause of *243the accident. The evidence on that subject is of only two kinds, that is, expressions of opinion, which, as above shown, were not binding on the commission, or an inference that because Oates was intoxicated when the accident occurred, the accident was caused by that intoxication. In the first place, the commission was not obligated to draw that inference. “An inference is a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect.’’ (Italics added.) (Code Civ. Proc., § 1958.) And as expressed in Blank v. Coffin, 20 Cal.2d 457, 461 [126 P.2d 868] : “The jury is not compelled to draw the inference, however, even in the absence of contrary evidence and may refuse to do so. Whether a particular inference can be drawn from certain evidence is a question of law, but whether the inference shall be drawn, in any given case, is a question of fact for the jury.” (Emphasis added.) Therefore, in the instant case, the commission was not required as a matter of law to infer that the intoxication caused the accident, at least, unless it is the only reasonable inference. Not being compelled to do so, how can this court say in this ease, that it must? It is clear from the record in this case that the inference of intoxication as the sole cause of the accident is not the sole inference that may flow from the evidence. For illustration, at the coroner’s inquest, Mr. Bell, who arrived at the scene of the accident immediately after it occurred, testified: “Did you observe anything that could have caused the accident ? Ans. I couldn’t figure it out, unless he dropped off to sleep.” Mr. Jameson, under like circumstances testified: “In your opinion, what caused the accident ? Ans. I’d say he was either drunk or asleep unless the brakes went wrong. I did notice the two right hand rear tires had been skidded, but there was no sign of skidding on the highway.” The circumstances of the scene of the accident, a down grade with a curve, indicate that the truck may merely have gotten out of control, and that may have occurred without regard to intoxication. The traffic officer who examined the scene of the accident and the truck testified: “In your opinion, what was the cause of the wreck? Ans. Excessive speed.” To reach the result arrived at in the majority opinion, it is necessary to say that whenever there is an automobile accident, and the driver has been drinking intoxicating liquor, the sole and inevitable conclusion is that the drinking caused the accident. That is not reasonable.
*244In addition to the foregoing there is the rule that the death certificate is prima facie evidence of the facts therein stated. That is equivalent to saying that it is presumptive evidence, or that a presumption is raised that the facts therein stated are true. (People v. Fitzgerald, 14 Cal.App.2d 180 [58 P.2d 718]; Miller & Lux v. Secara, 193 Cal. 755 [227 P. 171]) and as stated in People v. Fitzgerald, supra, 193: “It is the rule in this state that against a proved fact, or a fact admitted, a disputable presumption has no weight, but where it is undertaken to prove the fact against the presumption, it still remains with the jury to say whether or not the fact has been proven; and, if they are not satisfied with the proof offered in its support, they are at liberty to accept the evidence of the presumption.” (Smellie v. Southern Pacific Co., 212 Cal. 540 [299 P. 529].) (Emphasis added.) The application of that rule to the facts of the instant case compels the conclusion that the commission’s finding is supported. No reason has been advanced why the above rule is not applicable, and I am sure none exists. .
If the majority opinion is correct, then the just claim of an applicant can be defeated by the perjury of a fellow employee who gives false testimony favorable to his employer to save his job or obtain some other perquisite, even though such testimony is disbelieved by the commission, the trier of fact, which is the sole judge of the credibility of witnesses. Such result should not be permitted in a civil action where contributory negligence is a defense, much less in a proceeding under the Workmen’s Compensation Act, where such defense is not available, and the burden shifts to the employer whenever it is established, as it was in the instant case, that the accidental death occurred during the course of employment. In my opinion the award should be affirmed.