Dobson v. Industrial Accident Commission

VAN DYKE, J.

This is a proceeding to review a decision of the respondent Industrial Accident Commission denying an application for adjustment of claim. Petitioner Dobson, while in the employ of Edgar H. Holton, was injured in a collision between an automobile he was driving and another vehicle. His application was denied by the respondent commission upon the ground that the injury was caused solely and proximately by the intoxication of petitioner. Whether or not this finding has substantial support in the record is the sole question presented.

Applicant testified that some time before the accident he had taken a glass of port wine, but had consumed no other alcoholic liquor. He had drunk the wine to relieve gas pains from which he was suffering. He drove 30 to 40 miles to the point of the accident, continuously suffering pain. His last clear recollection before the collision was feeling severe pain near his left lower ribs after which he had no memory of seeing or doing anything. He believed he had become unconscious. A deputy sheriff out of Tulare County, returning thereto, observed Dobson’s driving for a distance of about a mile, and for a time approaching a minute, before the accident. He saw Dobson’s car go off onto the right shoulder, back until the left wheels were over the center line of the highway, which maneuver occurred two or three times, then he saw the car cross the line and get entirely into the opposite lane where a head-on collision occurred with an approaching vehicle. A collision with a truck had been narrowly avoided during this interval. The officer said he believed Dobson was drunk driving, but also said that although he talked with him after the collision, while Dobson was pinned in his car and was close to him, he did not smell liquor on Dobson’s breath. He added that he did not attempt to do so. Save for the testimony of a toxicologist, which we will discuss later, the foregoing is the whole of the proof upon the issue of intoxication.

[784]

To support its affirmative defense of intoxication Holton’s insurance carrier presented Doctor Charles H. Hine as its witness. He was a specialist in toxicology. He stated that he had analyzed a blood specimen which he had received through registered mail. It was contained in a bottle on which was a label whereon was typed the statement that the specimen had been taken some 10 days before the analysis at Santa Rosa General Hospital by Doctor C. M. Fleissner, witnessed by Patrolman Cunningham. The sample was in a bottle like those the witness said he provided to district attorneys and hospitals for blood sampling purposes. Objection was made that no proper foundation had been laid for the reception of testimony concerning the alcoholic content of the blood sample in that there was no evidence that it was Dobson’s blood. Thereupon opposing counsel stated that he would ask a further hearing so he could produce as witnesses those who had taken the sample and in the meantime wanted the doctor’s testimony accepted subject to such further proof. However, the record does not disclose that any further proof of the identity of the blood sample was made. The doctor testified that bottles for blood sampling purposes were given by him to district attorneys with a small envelope in which the bottle could be placed and sealed. A space for writing information was provided on the envelope. Along with this material were sent instructions for the information of anyone drawing the specimen so that it would be satisfactorily drawn from a medical and legal standpoint. These instructions were distributed, with the bottles and the shipping containers, to hospitals, and were carried by highway patrolmen in their cars. The doctor said that he did not have the bottle, contents of which he had analyzed on the assumption that it was Dobson’s blood but that it was under lock and key in the coroner’s office in San Francisco and was available. It was never produced. The witness had never seen Dobson. No witness testified that a sample of Dobson’s blood had been taken and of course there was no testimony as to the way it had been taken nor as to whether or not the instructions for taking such samples had been followed. Stripped to its essentials, the testimony of Doctor Hine was that he received by registered mail a bottle bearing a label on which was typed a statement that the bottle contained the blood of Dobson, which had been drawn by Doctor Fleissner with Cunningham standing by as a witness. Doctor Hine analyzed the blood in the bottle and found therein an alcoholic content of 0.207 per cent which the doctor said would