*1 however, appeals, which we of the court

review, and it is settled that it is not the Shirley MANTHEY, M. Elmer Widow of reviewing function of this court Manthey, employee, deceased decision to see whether on the facts the Respondent, preferable decision is correct or even v. another, rather, and only, to ascertain whether it has sufficient basis of inference BERNICK, INC., CHARLES E. et to be drawn from the reasonably facts. al, Relators. say Unless this court can then there is No. 51223. basis, no such reversal would be a trans gression proper of our function of review as Supreme Court of Minnesota. that of initial distinguished from determi 20, Feb. 1981. Moreover, nation of fact issues. the find ings of appeals the court of are reviewed in Saholt most favorable to them. Airlines, Inc.,

Northwest 393, 188 290 Minn. (1971).

N.W.2d 772 done,

If this is we believe that

court’s finding that it cannot be determined

from the evidence whether the employee’s

foot injury was a substantial cause of his 1, 1975,

disability February after must be

sustained. Although compensation

judge prior inferred from excel problems

lent work record that his other contributing

were not significantly

disability, opinions both Dr. Arnold’s

by May limiting 1973 alcoholism was a fac

tor in employee’s ability to work and that

by July physical 1976 he lacked the

mental steadily stamina to work because of cirrhosis, slight and the evidence of the

ness employee’s effort find work after 1,1975,

February against militate the infer

ence drawn by judge

permit the conclusion reached by the court appeals the evidence did permit determination of whether em

ployee’s foot was a substantial cause 1,1975.

of his after disability February We recognized

have when the trier of fact

has a conflicting choice between evidence or

diverse may inferences be drawn from the

evidence, its conclusion must stand unless clearly contrary to the evi

manifestly

dence. Nelson v. Lutheran Mutual Life Co.,

Ins. 527, 311 Minn. 249 N.W.2d 445 being There substantial evidence to

support finding, the decision under re

view must be affirmed.

Affirmed.

545 chapter pay compensation is liable to personal or death in case of every of and in the employee arising out of regard to employment course of in- unless the question negligence, of or intentionally self-inflicted jury was employee is of the when the intoxication injury. of the proximate cause upon is proof of such facts burden of employer. court has years this period many

Over a of holding narrowly, construed statute is a bar to intoxication proximate, as to be the “only when shown contributory, cause distinguished from rel. of.” State ex injury complained of the 96, 98, Court, v. 145 Minn. District Green 155, (1920); Fe- see Olson v. N.W. 156 176 (1966). 335, lix, 146 N.W.2d 866 275 Minn. is the employee’s intoxication Whether an injuries is of his or death proximate cause by the its resolution of fact and issue findings of like other Appeals, Court of if fact, only this court will be reversed Bridell, Blooming- Chadwick, Johnson & inferences permissible the evidence and ton, for relators. adopt to reasonable minds clearly require respondent. Deter, Rapids, for Kurt Sauk State, v. Kahn contrary conclusion. (Minn.1980); Fogarty Martin N.W.2d 737 398, Co., N.W.2d 601 257 Minn. Hotel we in mind principles With these review the evidence. SHERAN, Chief Justice. record that appears from the It employer on the relation Certiorari pop, beer and a distributor employer, obtain review a decision and insurer to “special events” products furnishes such Ap- Court of Compensation the Workers’ company picnics. On Sun like church the widow of

peals awarding respondent, 10, 1978, di employee was September day, Manthey, dependency Elmer employee, a truck loaded transport rected em- conceding the compensation. While Gilman, a small picnic a church at of beer to out of and injuries and death arose ployee’s employer’s miles from about 15 town relators employment, in the of his course Driving sepa Park. at Waite warehouse intox- urge that the employee, friend and fellow he and a rately, cause of his proximate was not the ication warehouse Staneart, at arrived John Our clearly and death is erroneous. loaded beer a. m. and about 9:30 compels the conclusion review of the record Gilman, with then drove which support has sufficient pickup. own following in his Staneart a whole and the inferences the evidence as kegs unload helped employee Staneart permissible therefrom. tasting stand, men the beer both at tappers 176.021, subd. 1 Minn.Stat. to determine process during beer (1980) of intoxication the defense provides They remained at sour. it was not beers, following language: employer to an until several stand, each parish work from payment compen- they received ... liable Every employer er. according provisions to the sation after noon the men left in road” and was

Shortly “pulled” Stan- off the gravel time, drove about for a pickup, eart’s shoulder into the left In a distance ditch. warehouse parted at the about 3 m. Em- of approximately 450 feet drove automobile, then took his own pur- shoulder, out of the onto the and back chicken, some fried and stopped chased at road, onto the then in a continuous Cloud, of his parents the home wife’s in St. motion went off the side of the road *3 he had saying come in to obtain fitting a into the 230 travelled feet and for one of the tappers. stayed He half an embankment, hit causing the truck to hour, called his wife to he say would not be roll over burst and into flame. Employee home promptly at suppertime, and then re- from suffered burns which he died 6 days picnic. turned to the Neither his wife nor later. parents her noticed anything about employ- emergency After treatment at a St. ee which suggested that he had been drink- hospital employee Cloud was transferred to ing. the Ramsey County Hospital burn unit. Employee picnic returned to the about 5 Ramsey Hospital record states that em- stand, stayed m. and at the beer helping ployee ‘too much’ “[a]dmits to sell beer until it closed 3 hours later. evening.” beer this A blood alcohol test Pietrzak, Louis parishioner the in charge of administered at 12:30 a. m. showed a .12 stand, worker, the and parish another Larry blood, alcohol concentration in employee’s Faber, noticed no sign intoxication in Seestrom, and Janis a chemist for Bu- the employee’s speech, appearance, or actions reau of Criminal Apprehension, expressed during although this time each saw him opinion the that this amount of alcohol drinking beer. would person’s ability affect a to drive. After employee replaced the stand closed Asked to assume that the accident had oc- the empty kegs on one side in the back of curred as described employee and that was the truck and with the assistance of the driving at speed least 10 miles over the other full kegs, stacking men reloaded the limit, Ms. expressed opinion Seestrom high them on the other side. He then left the amount of alcohol employee had and, according the warehouse to Pietr- consumed “would be a factor” in the acci- zak, fast,” “took off awfully although Pietr- expressed opinion dent. She also with zak also testified that he had never thought certainty reasonable medical that employ- employee driving. should not be The em- ee’s blood alcohol level at the time of the ployer’s plant manager testified that em- .16, “very accident was based on a conserva- ployee was a fast driver who been had tive burn-off rate.”1 prior cautioned on a occasion about his speed. said that Staneart because truck em- was driving high was and somewhat Cielinski, Joseph driving south on a coun- top heavy, once a driver lost control it Gilman, ty road passed south of was by would be to regain. Employee ap- difficult a employee point short time later at a short- parently experience had not had extensive ly before the road made an S curve. Cielin- truck, driving the had Staneart backed ski thought going that he himself was 45 or place the vehicle into its beside the beer per miles hour and employee said that witness, stand for him. This who had been fast,” was going “unusually although a occasions, employee many testified deputy sheriff called to the scene said that employee liquor” Cielinski also that “could handle his employee’s speed had estimated at per miles quite hour. Cielinski said that and “could drink a bit” without ob- passing employee “caught edge servable effect. Solem, Lynn employee’s

1. Dr. who treated while Ms. Seestrom said she knew of no scien- bums, thought morphine drug testified that he tific evidence that ad- the other medi- employee shortly given ministered to after the acci- cines would affect either blood might dent hol tend to slow metabolization of alco- alcohol concentration or the rate metaboliza- drugs, because the liver metabolizes both tion. record, impair- It is true that compels it Olson. perceive As relators intoxication to intoxi- employee’s judgment ment of due injuries and proximate cause of his might be inferred from fact cation employ- on the They rely principally death. high on one kegs he stacked the full had .16, level of the evidence ee’s blood alcohol hand, he side of truck. On other drinking beer until the that he had been help before empty loaded closed, disclosed stand the admission church with the men for hand asking the other record, opinion of hospital expert by the ones, not to he have decided full could Ms. that a blood alcohol concen- Seestrom more rearrange cargo take the time to ability .12 a person’s tration of would affect fin- eager to because he was evenly merely drive, the nature of the accident be conduct could workday. ish his Such contend, which, “percep- they demonstrates to his intoxication. not related negligence Al- caused intoxication. tional error” opinions it Nor can be said intoxication was the though that em- and the evidence expert witness *4 of accident and em- proximate cause the drinking early the eve- had been in injuries would ployee’s resultant and death drinking much ning admitted to too and evidentiary support, have clearly sufficient conclusively hospital the establish beer at a we the as are satisfied that evidence. proximate intoxication was the that his made the permitted contrary whole in of the other of the accident cause of compensation and the by judge the Court on bearing that issue. evidence Appeals. would the accident reason- The nature of a Admittedly the committed employee’s the inference that ably support in with a blood alcohol driving misdemeanor his intoxica- by were affected perceptions 169.121, concentration of .16. § Minn.Stat. tion, on causing to distances misjudge him in subd. 1 But fact does not went when truck wheels both occasions the variably compel person the inference a road, these onto the shoulder recognized As we incapable driving. is of have caused might not of errors themselves Felix, 335, 146 N.W.2d in Olson Minn. if it had go to into the ditches the vehicle (1966), have toler individuals different the top heavy by not and unbalanced been ances for alcohol. In that case the deceased view these weight kegs. of full In of the alcohol concentration employee had blood employ- whether factors we conclude that experts persons of .3 and testified that of proximate was cause the ee’s intoxication rationality such a concentration would lack fact question was a of and death this spite and be comatose. In of nearly minds could differ. reasonable on which evidence, employee’s in finding that the might we whether not Consequently, not of proximate toxication was the cause if re- conclusion have reached a different af the accident in his death was resulting issue, we will to decide that quired concerning evidence firmed because other of the Court by made disturb his actions short time before the accident Appeals. of had capable demonstrated that he been of attorneys fees and in exercised is awarded doing Respondent his work had fact In case doing some so. this judgment $400. employ

there is considerable evidence Affirmed. signs ee of intoxication showed no outward perform and he had been able to (dissenting). OTIS, Justice tappers beer required work to dismantle the find- opinion holds that the majority The in his tappers and reload the and of Compensation Court ings of the Workers’ evidence, This as well as Staneart’s truck. manifestly contrary to are not Appeals to establish that he had testimony, tends therefore, evidence, the award affirms and for alcohol. More considerable tolerance to the dece- over, dependency considera obviously he had consumed agree. I do not widow. bly liquor less than had dent intoxicating 176.021, (1980), pro- cause, Minn.Stat. subd. 1 the imbalance was intervening vides: overlooking problem the fact that was making of decedent’s own as excluded this at a time when

Except by chapter all he was employers employees subject and are to intoxicated. chapter. provisions Every immediately prior In the moments to the * * * employer such is liable com- pay zone, crash while in a 55-mile-an-hour dece- every personal case of pensation injury pass dent accelerated to 65 miles an hour to employee arising or death of his out of vehicle, misjudged another apparently employment and in the course of left, clearance and lost control of the regard question negligence, to the un- lane, truck. He veered to the left across a intentionally less the self-in- ditch, gravel shoulder into the continu- when intoxication of flicted or ing During a distance of 454 feet. none proximate is the cause of the did apply time he his brakes. In- injury. proof The burden of of such facts stead, he steered the vehicle out of the is upon employer. ditch, shoulder, back gravel over the across evidence uncontroverted that lane, lane, the left back right into the over decedent at the time of his death was intox- hand shoulder into that legal icated and our standards was a travelling after 232 feet collided with the drunk driver. Before he died he admitted embankment of a cross-road where the “too much beer.” Neverthe- over All exploded. turned less the appeals court of found his intoxica- attempt apply with no his brakes. proximate tion was not the cause of the *5 undisputed testimony, In the accident which killed him. Under our stat- to find that decedent’s intoxication was not ute, 169.121, (l)(d) (1980), a Minn.Stat. § a proximate faulty cause of either the load- person presumed to be intoxicated if ing operation or erratic truck is there is a .10 alcohol concentration in his holding tantamount self in- blood operating while a motor vehicle. employee’s voluntary flicted intoxica- case, In the instant the concentration of tion are now I wholly compensable. cannot blood, alcohol in the decedent's when tested subscribe to a rule which so unjustifiably m., at the hospital at 12:30 a. was .12. The effectively nullifies the effect of Minn.

accident, however, had occurred over two 176.021, Stat. subd. earlier, one-half hours at 9:50 m. At time, the alcohol concentration was .16 PETERSON, (dissenting). Justice according to the conservative estimate of a chemist for the Bureau of Criminal Appre- join I in the dissent of Mr. Justice Otis. hension who testified that the decedent beers, must have consumed at least ten 3.2 SIMONETT, (dissenting). Justice plus one more beer for each of the hours he had been drinking, something all in ex- join I in the dissent Mr. Justice Otis. beers, cess of thirteen before the decedent began to load operate his truck. top

He stacked twelve full

each other on side of the truck. A

friend’s suggestion that he distribute the

weight more evenly disregarded,

though the truck was unbalanced with the

load arranged. so

The majority opinion of the Workers’

Compensation that, owing Court concedes load, distribution

may have been top-heavy, implies