American Mutual Liability Insurance v. Industrial Accident Commision

JONES, J. pro tem. The petitioner in this proceeding seeks the annulment of an award made by the Industrial Accident Commission on account of the death of Frank Wilson. The decedent was employed by the Dromedary Company, Inc., a food manufacturing and distributing concern, as a salesman calling on jobbers only. The cities of Stockton, Sacramento, Santa Rosa and Petaluma were in the territory assigned to him. He lived in Los Altos. At about 2 p. m. of August 13, 1945, he left his home for Stockton to call upon the trade in that and the other cities mentioned. The automobile in which he was travelling, a Chevrolet coupe, belonged [495]to his employer. At a point in San Joaquin County on the highway south and west of Stockton he met with an accident, was injured, and from this injury he died four days later without regaining consciousness. The commission made an award to his widow of $4,740 as a death benefit, and to his mother-in-law who was partly dependent upon him, in the amount of $1,260.

As a defense to the claim of the dependents, the petitioner set up the intoxication of Wilson as the cause of his injury (Lab. Code, § 3600). This is an affirmative defense, and the burden of proving it rests on the employer. (Lab. Code, § 5705; Pacific Freight Lines v. Industrial Acc. Com., 26 Cal.2d 234 [157 P.2d 634].) The issue here goes to the sufficiency of the evidence to sustain this defense.

No witness was produced who saw Wilson from the time he left his house in Los Altos until he was received in the San Joaquin General Hospital in Stockton after the accident. A traffic officer testified that he received a call at about 10:15 p. m. on August 13th to proceed to a point on the highway south of Stockton. According to his testimony, he there found the automobile in which Wilson had been riding faced southerly with the top and right side of the car badly damaged. On the opposite side of the road a truck with a trailer attached was parked but headed northerly. The left rear and side of the trailer showed some evidence of a recent impact. This witness testified that the left rear wheel of the trailer was not over eight inches off the paved portion of the highway. Nothing appears as to the overhang, if any, of the bed or body of the truck or trailer above the pavement. In Wilson’s ear the officer found two empty pint beer bottles, and one full one.

On the day following the accident one Leon Happel, who at the time was employed to make chemical analyses for the peace officers of San Joaquin County, received a bottle containing some fluid purporting to be blood. He stated that he received the bottle and contents from the Highway Patrol. The bottle bore a label, “Tuesday, 8/14/45, Prank Wilson, San Joaquin County Hospital.” The contents of the bottle were subjected by Happel to a chemical test, which showed the fluid to contain 3.2 milligrams of alcohol per cubic centimeter. Dr. Jesse L. Carr, a pathologist, testified that 3.2 milligrams of alcohol per cubic centimeter in the blood of an individual would indicate inebriation, and a staggering and toxic condition. Happel