Osborne v. Colonial Ice Company

106 S.E.2d 573 (1959)

249 N.C. 387

Mrs. Eleanor Johnson OSBORNE, Widow, Eleanor Joan Osborne, Daughter, Z. T. Osborne, Deceased, v. COLONIAL ICE COMPANY and Hartford Accident & Indemnity Company.

No. 610.

Supreme Court of North Carolina.

January 14, 1959.

Thomas Turner, Jordan, Wright & Henson, Greensboro, for plaintiffs, appellants.

Adams, Kleemeier & Hagan, by Charles T. Hagan, Jr., Greensboro, for defendant, appellee.

HIGGINS, Justice.

The plaintiffs' assignments of error, as stated in their brief, present three questions: (1) Does the testimony tending to show an individual was intoxicated at 11:30 a. m. have any probative value as to whether the same individual was intoxicated at 6:30 p. m. the same day? (2) Is evidence of chemical analysis of the blood alone sufficient upon which to base a finding that the deceased was intoxicated? (3) Is there sufficient competent evidence to support the findings that the deceased was intoxicated at the time of the accident, and if so, is there sufficient competent evidence to support the finding that the intoxication of the deceased occasioned the accident in which he was killed?

In answer to the first question, under the facts of this case, the Court has doubt as to the probative value of testimony of intoxication at 11:30 a. m. upon the issue of intoxication at 6:30 p. m., especially in view of the evidence the subject was sober at 2:30 p. m. However, the admission of evidence that is without probative value is not fatal in a proceeding of this character. The question is whether the finding of intoxication at 6:30 p. m. is supported by competent evidence. Bradsher v. Morton, 249 N.C. 236, 106 S.E.2d 217; Pitman v. L. M. Carpenter & Associates, 247 N.C. 63, 100 S.E.2d 231; Blalock v. City of Durham, 244 N.C. 208, 92 S.E.2d 758; State v. Kelly, 227 N.C. 62, 40 S.E.2d 454. *576 The decisions of this Court are to the effect the percentage of alcohol in the blood stream is competent evidence on the question of intoxication. Davis, the chemist, qualified as an expert in the field of chemical analysis, and haemotology (blood analysis). His knowledge and experience have been such as to enable him to testify as to the effect of various percentages of alcohol in the blood stream in producing intoxication. He testified that 0.20 per cent of alcohol in the blood stream will produce intoxication. He analyzed the blood sample delivered to him by Dr. Harvey. It contained 0.20 per cent of alcohol. In his opinion the victim, because of the presence of that percentage of alcohol, was intoxicated. Such evidence is sufficient to support the Industrial Commission's finding to that effect. State v. Moore, 245 N.C. 158, 95 S.E.2d 548; State v. Henderson, 245 N.C. 165, 95 S.E.2d 594; State v. Willard, 241 N.C. 259, 84 S.E.2d 899; see also, State v. Collins, 247 N.C. 244, 100 S.E.2d 489. A finding by the Industrial Commission, if supported by competent evidence, is binding on the superior court judge who reviews the case and is likewise binding on this Court on the appeal. Blalock v. City of Durham, supra; Brooks v. Carolina Rim & Wheel Co., 213 N.C. 518, 196 S.E. 835.

In answering the third question presented, we call attention to the rule stated in the preceding paragraph. The courts are bound by the Commission's findings if supported by competent evidence, even though the evidence would have supported a different or contrary finding. Determination of disputed questions of fact involves the weighing of the evidence, which is a function of the fact finding, and not of the reviewing authority. Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, 17 A.L.R.2d 881; Queen City Coach Co. v. Lee, 218 N.C. 320, 11 S.E.2d 341; English Mica Co. v. Avery County Board of Education, 246 N.C. 714, 100 S.E.2d 72.

The evidence in the case showed that Osborne left skid marks for 75 feet in a straight line forward and then skid marks sidewise across the center line of the highway to his left, with the result the truck he was attempting to pass and his skidding automobile blocked both lanes of the highway. Wilson's car, in its proper lane, struck Osborne's car on the right-hand side near the middle. The Commission found the driver of the skidding car was intoxicated. In operating the car on the highway, he was violating a safety statute. Whether the accident was proximately caused by the violation was a question for the fact finding body. Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25; Beaman v. Duncan, 228 N.C. 600, 46 S.E.2d 707.

The evidence in the case afforded sufficient factual support for the findings, conclusions, and award of the Industrial Commission. The judgment of the Superior Court of Guilford County is

Affirmed.