Appeal from Circuit Court, Washington County. Hollie Pihl, Judge. No. 32-769.
William L. Hallmark, Portland, argued the cause for appellant. With him on the briefs were McMenamin, Jones, Joseph & Lang, Portland.
Raymond Conboy, Portland, argued the cause for respondent. With him on the brief were Pozzi, Wilson & Atchison and Dan O'Leary, Portland.
Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.
This is a workmen's compensation case. The question presented is whether death resulting from an accident arose "* * * out of and in the course of employment * * *." ORS 656.002 (6); 656.202 (1).
Employer's carrier denied the wife's claim. Denial was sustained by the hearing officer, and rejected by the Workmen's Compensation Board and the circuit court.
Decedent was a salesman for Francis Ford, Inc., which supplied him with a pickup demonstrator in which he carried business papers, and which he took
home at night. In normal business he went anywhere at anytime soliciting sales.
On the night of his death decedent met two prospective purchasers, Erickson and Biddle, at a barrestaurant named Barbur Towers. He inspected their vehicles and talked with them about sales at this location from 7 to about 8:30 p.m. His wife came to the same location and waited for him in the bar while he talked to prospects Erickson and Biddle in the restaurant. She waited until about 10 p.m. when, she said, decedent came into the bar with two other, unidentified men with whom he had apparently been talking business. These two men left, claimant and decedent had one -- and possibly several -- drinks and left in separate vehicles, he in the pickup, to go to the High Hat Restaurant to eat. When claimant did not find the pickup at the High Hat she proceeded on toward their home and enroute came upon the scene of the one-car accident involving the pickup in which decedent was killed.
A test taken shortly after the accident showed decedent's blood to contain .37 per cent alcohol. Biddle and Erickson testified decedent had appeared sober and had drunk only coffee in their presence. Claimant said he appeared normal when she saw him and he could not drink a lot without showing it. Expert evidence was that the blood-alcohol level was near what is lethal, and also that a person who could achieve such a level would have had considerable experience with alcohol, would have been drinking for quite a few hours before achieving it, and might not outwardly show the effects of the alcohol.
The hearing officer understandingly doubted the credibility of claimant, Erickson ...