(dissenting). This claim presents, in my opinion, an opportunity to re-examine that part of section 21 of the Workmen’s Compensation Law where it shall be presumed in absence of substantial testimony “4. That the injury did not result solely from the intoxication of the injured employee while on duty
In view of the present judicial decisions, the Workmen’s Compensation Board has no alternative but to affirm automobile, accident cases where an employee is involved as the driver and where alcohol is a factor. There is, in my opinion, a valid distinction between the present claim and our prior decisions. We have heretofore determined that where there was a possibility of some defect in the automobile or the possibility of some physical intervention, aside from alcohol, which might have caused the accident, then intoxication is not the sole cause thereof. These possibilities are not here present factually or inferentially and if we are to be realistic, the claim must be dismissed. The testimony by the claimant and the employer’s witnesses would convince a reasonable person that the only fair inference to be deduced from the evidence was that this employee was intoxicated and that the automobile accident resulted solely from this condition and thus there is substantial evidence to overcome the presumption (Matter of Shearer v. Niagara Falls Power Co., 242 N. Y. 70).
The cases cited by the majority are not precedents.
Matter of Segnini v. Roxbury Ski Center (14 A D 2d 449). Here the decedent had a high blood count but we found from the facts that there existed an inference that the collision occurred as the result of the attempt by the decedent to pass a lumber truck, part of which protruded beyond the wheels at the point of impact. There was also testimony that shortly before the accident the decedent had been observed to be acting in a normal manner.
Matter of Cliff v. Dover Motors (11 A D 2d 883). Here again there was a high blood count but this was an unwitnessed accident and again there was testimony that a short time prior to the accident the decedent had a conversation with a fellow employee.
Matter of Scott v. Schaefer & Sons (3 A D 2d 775). This was an unwitnessed accident where the decedent’s automobile collided with the rear end of a tractor trailer standing on the highway.
*488After a review of these cases and the recognition that the Workmen’s Compensation Law is to be given a broad and liberal interpretation, we examine the present factual situation.
The decedent, an outside salesman, visited a business prospect and thereafter they had lunch at a restaurant where- both men had a number of cocktails. When they were about to leave, the decedent met an acquaintance (afterwards killed in decedent’s automobile) and after some discussion they adjourned to his acquaintance’s office where again there was talk about business and at the same time the group watched a baseball game on television and drinks were available from a bar in the office. About 8:30 in the evening it was decided to have dinner and the group was to meet at a designated restaurant. There ensued some discussion about the ability of the decedent to drive his automobile, one of the witnesses testifying that he did not feel that the decedent was fit to drive and that he would not ride with him and it was suggested that the keys to the decedent’s car be taken by one of the group present. Suffice it to say that this did not happen and the decedent drove his car, with one of the group as a passenger, onto the eastbound lane of the Merritt Parkway in the State of Connecticut and proceeded westerly in the direction of oncoming traffic. Witnesses, who were properly driving on the eastbound lane, testified to seeing this automobile approaching directly at them, that the driver of one of the automobiles had time to pull to the right and avoid a collision, but the following car and the decedent’s automobile crashed head on, killing the decedent, his passenger, and causing other injuries. While the record is not complete, it is a matter of common knowledge that the Merritt Parkway and the approaches thereto are constructed as a modern divided highway in the State of Connecticut.
A fair summation of the facts in this case establishes: That this was a witnessed accident; that there was undisputed evidence of intoxication of the decedent by a blood count (0.29%) and of his unfitness to drive an automobile; that he managed, contrary to any normal procedure, to drive his automobile into the wrong lane of a divided highway; that he drove on the wrong lane for a considerable distance with automobiles approaching from the opposite direction and his automobile crashed head on, without making ‘ ‘ an effort to get out of the way ’ ’, into one of these automobiles lawfully proceeding in its own proper lane; that he lived in the State of Connecticut, not too far from the scene of the accident, and in close proximity to the Merritt Parkway, and of necessity must have been familiar Avith the approaches thereto.
*489From these facts there is no substantial evidence to permit an inference that this accident was not due solely to intoxication. It could not be the intendment of the Legislature to have the word “ solely ” become a barrier to the practicalities of life. There has been no case before this court which so vividly, perhaps unfortunately, portrays an automobile accident caused solely by intoxication. Pertinent to the facts is the wording in Matter of Shannon v. American Gan Co. (278 App. Div. 546, 550): “ There may, of course, be cases of motor vehicle control where intoxication would appear to the reasonable mind the only cause and the presumption would be deemed met as a matter of law. ’ ’
The finding by the board that the accident was due to factors such as darkness and the short distance travelled on the Merritt Parkway by the decedent before the collision is based on conjecture and surmise, not substantial evidence. The board’s original memorandum (May 10, 1962), afterward amended to delete portions thereof (July 9,1962), is replete with statements and conclusions not part of the evidence but based upon speculation by counsel and others.
I would further observe that there was substantial evidence to establish that whatever business there might have been during the afternoon had terminated and the plans for dinner were strictly social.
For these reasons, I would vote to reverse and dismiss the claim.
Bergan, P. J., and Taylor, J., concur with Reynolds, J.; Herlihy, J., dissents in an opinion and votes to dismiss the claim.
Decision and award affirmed, with costs to the Workmen’s Compensation Board.