Larry P. INSCOE
v.
DeROSE INDUSTRIES, INC. and Continental Casualty Company.
No. 95.
Supreme Court of North Carolina.
March 7, 1977.*451 Carl W. Howard, Charlotte, for plaintiff-appellee.
Jones, Hewson & Woolard by Harry C. Hewson and R. G. Spratt, III, Charlotte, for defendant-appellant.
COPELAND, Justice.
At the time of the collision, G.S. 97-12 provided in relevant part as follows:
"No compensation shall be payable if the injury or death was occasioned by the intoxication of the employee . . .. The burden of proof shall be upon him who claims an exemption or forfeiture under this section." (Emphasis supplied.)
This statute was amended by the 1975 General Assembly to read as follows:
*452 "No compensation shall be payable if the injury or death to the employee was proximately caused by . . . [h]is intoxication. . .. The burden of proof shall be on him who claims an exemption or forfeiture under this section." (Emphasis supplied.)
Defendant contended before the North Carolina Industrial Commission and the Court of Appeals that it was error under former G.S. 97-12 to allow benefits to the claimant under the facts of this case. The Court of Appeals affirmed the award of the Industrial Commission on the basis of the facts in the record and went on to hold that G.S. 97-12 requires denial of compensation only when the claimant's intoxication was the sole proximate cause of the accident and resulting injuries, rather than a proximate cause.
We believe the Court of Appeals prematurely decided an issue not properly presented. There is no reason to reach the question of whether the "occasioned by" language of G.S. 97-12 contemplates that intoxication must be a or the sole proximate cause of the accident before benefits are forfeited. We think the Industrial Commission could reasonably have concluded that plaintiff's intoxication was not a cause of the accident.
The following general principles have been laid down by this Court in Workmen's Compensation cases.
"Under the Workmen's Compensation Act the Industrial Commission is made the fact-finding body, and the rule is, as fixed by statute and the uniform decisions of this Court, that the findings of fact made by the Commission are conclusive on appeal, both in the Superior Court and in this Court, when supported by competent evidence. G.S. 97-86 (Citations omitted.) This is so, even though the record may support a contrary finding of fact. (Citations omitted)." Rice v. Chair Co., 238 N.C. 121, 124, 76 S.E.2d 311, 313 (1953).
"The Workmen's Compensation Act, G.S. 97-86, vests the Industrial Commission with full authority to find essential facts. The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. The courts may set aside findings of fact only upon the ground they lack evidentiary support. (Citations omitted.) The court does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court's duty goes no further than to determine whether the record contains any evidence tending to support the finding. (Citation omitted.)" Anderson v. Construction Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965).
"In passing upon an appeal from an award of the Industrial Commission, the reviewing court is limited in its inquiry to two questions of law, namely: (1) Whether or not there was any competent evidence before the Commission to support its findings of fact; and (2) whether or not the findings of fact of the Commission justify its legal conclusions and decision. (Citations omitted.)" Henry v. Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 762 (1950).
The appellate courts of this State have dealt with the intoxication defense in several cases. In Lassiter v. Town of Chapel Hill, 15 N.C.App. 98, 101, 189 S.E.2d 769, 771 (1972), the Court of Appeals correctly noted that:
"G.S. 97-12 does not require the Commissioner to find whether the employee was intoxicated or not as a matter of law. This statute does not provide for forfeiture of benefits if an employee was intoxicated at the time of the injury, but only if the injury or death `was occasioned by the intoxication.' The Commissioner made the required finding for compensation. . . which . . . was supported by ample competent evidence."
The Court of Appeals further explained that:
"Although there was contradictory evidence, the Commissioner found that the injuries and death [of the claimant were] `not occasioned by intoxication.' . . . `By making an award in this case the Commission has found that the defendants *453 failed to carry the burden of proof that the plaintiff's injury was caused by his intoxication, and we are bound by such finding.'" Lassiter v. Town of Chapel Hill, supra at 101, 189 S.E.2d at 771, citing, Yates v. Hajoca Corp., 1 N.C. App. 553, 556, 162 S.E.2d 119, 121 (1968).
In the Yates case, supra, also decided by the Court of Appeals, the claimant's car left the highway in a curve and struck a tree on a dark and foggy night. In spite of the evidence that immediately after the wreck a whiskey bottle and two beer cans were found in the plaintiff's car, the Industrial Commission found the plaintiff's accident was not "occasioned by intoxication." In that case the Court of Appeals decided it was bound by this finding.
In a case of this Court similar to the one at bar, Gant v. Crouch, 243 N.C. 604, 91 S.E.2d 705 (1956), the evidence for the plaintiff tended to show that the plaintiff's truck was forced off a very narrow mountain road by other traffic and that the shoulder of the road gave way, causing the vehicle to turn over and roll down the mountainside killing plaintiff's intestate. In that case there was a conflict in the evidence as to whether the accident causing the death of the employee was due to his intoxication or to traffic forcing his vehicle from the road. The Industrial Commission (in a 2-1 decision) found the accident was not occasioned by the employee's intoxication. Justice Higgins, speaking for our Court, said:
"`There was competent evidence to support the contention of both plaintiff and defendant upon this question, but the Commission having found as a fact that the accident in which the plaintiff was injured was not occasioned by his intoxication, the Judge of the Superior Court was bound by such finding, and we are likewise bound.'" Gant v. Crouch, supra at 607-8, 91 S.E.2d at 707, citing, Brooks v. Carolina Rim & Wheel Co., 213 N.C. 518, 519, 196 S.E. 835, 836 (1938).
In Brooks v. Carolina Rim & Wheel Co., supra, the facts were somewhat similar to those in the instant case. The plaintiff was injured in a two-car collision on the highway. While he admitted having taken a "jigger" of whiskey about four or five hours before the accident, the plaintiff denied the accident was occasioned by his intoxication. Our Court determined in that case it was bound by the Commission's finding that the accident was not occasioned by intoxication, even though there was competent evidence to support the defendant's contentions.
When the aggrieved party appeals to an appellate court from a decision of the Full Commission on the theory that the underlying finding of facts of the Full Commission are not supported by competent evidence, the appellate courts do not retry the facts. Moses v. Bartholomew, 238 N.C. 714, 78 S.E.2d 923 (1953). It is the duty of the appellate court to determine whether, in any reasonable view of the evidence before the Commission, it is sufficient to support the critical findings necessary for a compensation award. Keller v. Electric Wiring Co., 259 N.C. 222, 130 S.E.2d 342 (1963).
Analyzing the evidence before the Industrial Commission on the issue of causation, we believe the facts presented would have justified a finding for either the plaintiff or the defendant. The Commission has found the facts and determined that the accident was not occasioned by the intoxication of the plaintiff. The plaintiff had no more than fifteen to twenty seconds in which to decide whether to continue straight ahead, turn to the right or to the left. Had he turned to the right he could have safely stopped the van on the shoulder of the road. He elected to turn to the left and thus, in retrospect, exercised bad judgment. It is axiomatic that hindsight is far superior to foresight. With the burden of proof resting on the defendant, the Industrial Commission was justified in concluding that even though plaintiff was intoxicated, his intoxication was not responsible for his bad judgment. Considering the speeds of the two cars and the short distance involved, the accident might have happened in any event. The evidence reasonably supports *454 the view that plaintiff's state of intoxication was neither the sole or a proximate cause of the accident. Defendant's assignment of error is overruled.
Next, defendant contends the Industrial Commission and the Court of Appeals erred in concluding that the accident arose out of and in the course of plaintiff's employment.
Once again, conflicting evidence in the record would have permitted the Industrial Commission to find for either party. Plaintiff's evidence tended to show that he was employed as a service man by the defendant and that he kept his own hours. It further showed that for the past few months plaintiff had worked every Saturday except one. On this occasion plaintiff testified that he was on his way to Lawson's Mobile Home Park to complete some carpet work on a mobile home that he had commenced earlier.
The Industrial Commission has found the facts to support its conclusions of law that the plaintiff suffered injury by accident arising out of and in the course of his employment and these findings are amply supported by facts in the record. When the findings of the Industrial Commission are supported by competent evidence, they are conclusive on appeal. Stubblefield v. Watson Electrical Construction Co., 277 N.C. 444, 177 S.E.2d 882 (1970).
For the reasons stated in this opinion the result reached by the Court of Appeals is
AFFIRMED.
LAKE, J., dissents.