{ "id": 8522526, "name": "BUD COLEMAN, Father; DORA COLEMAN, Mother; SHIRLEY JEAN ROBINSON, Guardian Ad Litem for Christopher D. Fuller, Minor Son; COLEBLES COLEMAN, JR. Deceased v. CITY OF WINSTON-SALEM, Self-Insured", "name_abbreviation": "Coleman v. City of Winston-Salem", "decision_date": "1982-05-04", "docket_number": "No. 8110IC922", "first_page": "137", "last_page": "142", "citations": [ { "type": "official", "cite": "57 N.C. App. 137" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "189 S.E. 2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": -1 }, { "cite": "15 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547781 ], "year": 1972, "opinion_index": -1, "case_paths": [ "/nc-app/15/0098-01" ] }, { "cite": "304 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569704, 8569770, 8569794, 8569724 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0587-01", "/nc/304/0587-03", "/nc/304/0587-04", "/nc/304/0587-02" ] }, { "cite": "281 S.E. 2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "53 N.C. App. 715", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523346 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/53/0715-01" ] }, { "cite": "281 S.E. 2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "53 N.C. App. 632", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523065 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/53/0632-01" ] }, { "cite": "262 S.E. 2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "45 N.C. App. 197", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548032 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/45/0197-01" ] }, { "cite": "189 S.E. 2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547781 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0098-01" ] } ], "analysis": { "cardinality": 589, "char_count": 10692, "ocr_confidence": 0.792, "pagerank": { "raw": 2.4277633435790265e-07, "percentile": 0.8017031108763484 }, "sha256": "425bd62e702d3bcb5efe5bc78e11567ac1ea97d2346546d464e623895cc0e220", "simhash": "1:90a1e44998155e1e", "word_count": 1738 }, "last_updated": "2023-07-14T20:31:38.946391+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Martin (Robert M.) and Arnold concur." ], "parties": [ "BUD COLEMAN, Father; DORA COLEMAN, Mother; SHIRLEY JEAN ROBINSON, Guardian Ad Litem for Christopher D. Fuller, Minor Son; COLEBLES COLEMAN, JR. Deceased v. CITY OF WINSTON-SALEM, Self-Insured" ], "opinions": [ { "text": "VAUGHN, Judge.\nThe primary question for resolution by the Commission was whether the death of the employee was proximately caused by intoxication. The Commission made no findings on that issue. Instead, it found that there was \u201cno evidence that the death was caused by intoxication.\u201d (Emphasis added.) We conclude there was ample evidence which would have permitted, but not compelled, a finder of the facts to find that the employee\u2019s drunkenness proximately caused his death, and we reverse the decision. It was the duty of the Commission to resolve the issues on the evidence before it. It is the responsibility of the Commission, of course, to weigh the evidence, direct as well as circumstantial, and the reasonable inferences arising therefrom. It cannot, however, ignore any of the evidence. It must consider all the evidence, make definitive findings and proper conclusions therefrom and enter an appropriate order. Harrell v. Stevens & Co., 45 N.C. App. 197, 262 S.E. 2d 830 (1980).\nThe Commission, as well as the employee, appears to rely heavily on the decision of this Court in Lassiter v. Town of Chapel Hill, 15 N.C. App. 98, 189 S.E. 2d 769 (1972). In that case, the Commission specifically found \u201cthat even though deceased had sufficient alcohol in his blood at the time of his death to be intoxicated, the death of deceased was not occasioned by intoxication.\u201d In that case, therefore, the Commission made a finding on the question of proximate cause. It is elementary that findings of the Commission are binding on appeal if supported by competent evidence. Although not set out in the Court\u2019s opinion in Lassiter, the record on appeal in that case discloses that the Commission found, in substance, that the operator of a garbage truck failed to see that deceased was leaning inside the compactor to empty his collection barrel. The driver\u2019s attention was diverted by some children near the truck. He \u201cstarted operating the compacting devices inside the truck which caught the upper portion of deceased\u2019s body and crushed him.\u201d All that Lassiter stands for, therefore, is that since the Commission obviously concluded that the truck driver\u2019s oversight was the proximate cause of the death, it was not error for the Commission to fail to make a specific finding on decedent\u2019s intoxication.\nPlaintiffs Bud Coleman and Dora Coleman appeal from that part of the Commission\u2019s order awarding plaintiff minor son compensation benefits. G.S. 97-39 states that \u201ca child shall be conclusively presumed to be wholly dependent for support upon the deceased employee.\u201d The Colemans contend that Christopher Fuller was only partially dependent upon the deceased employee and that the conclusive presumption of G.S. 97-39 violates the Fourteenth Amendment. Plaintiffs\u2019 brief fails to set forth either assignments of error or exceptions as required by Rule 28(b)(3) of the Rules of Appellate Procedure. The appeal is, consequently, subject to dismissal. State v. Shelton, 53 N.C. App. 632, 281 S.E. 2d 684 (1981). Nevertheless, it is clear that the argument is without merit for the reasons, among others, set out in Carpenter v. Tony E. Hawley Contractors, 53 N.C. App. 715, 281 S.E. 2d 783, cert. denied, 304 N.C. 587, --- S.E. 2d --- (1981).\nThe award is vacated, and the case is remanded for findings based on the present record and proceedings not inconsistent with this opinion.\nVacated and remanded.\nJudges Martin (Robert M.) and Arnold concur.", "type": "majority", "author": "VAUGHN, Judge." } ], "attorneys": [ "R. Lewis Ray and Associates, by R. Lewis Ray, for plaintiff appellants and plaintiff appellees, Bud Coleman and Dora Coleman.", "Womble, Carlyle, Sandridge and Rice, by Allan R. Gitter and James M. Stanley, Jr., for defendant appellant.", "Morrow and Reavis, by John F. Morrow, for appellee, Shirley Jean Robinson." ], "corrections": "", "head_matter": "BUD COLEMAN, Father; DORA COLEMAN, Mother; SHIRLEY JEAN ROBINSON, Guardian Ad Litem for Christopher D. Fuller, Minor Son; COLEBLES COLEMAN, JR. Deceased v. CITY OF WINSTON-SALEM, Self-Insured\nNo. 8110IC922\n(Filed 4 May 1982)\n1. Master and Servant \u00a7 58\u2014 workers\u2019 compensation \u2014 intoxication as proximate cause of death \u2014remand for findings\nWhere there was ample evidence which would have permitted, but not compelled, a finding that an employee\u2019s intoxication proximately caused his death, the Industrial Commission erred in finding that there was \u201cno evidence that the death was caused by intoxication,\u201d and the cause must be remanded to the Industrial Commission for findings as to whether the employee\u2019s death was proximately caused by intoxication.\n2. Master and Servant \u00a7 79.1\u2014 presumption that child is wholly dependent \u2014 constitutionality\nThe provision of G.S. 97-39 stating that \u201ca child shall be conclusively presumed to be wholly dependent for support upon the deceased employee\u201d is not unconstitutional.\nAppeal by defendant and plaintiffs Bud Coleman and Dora Coleman from the North Carolina Industrial Commission opinion and award of 5 March 1981. Heard in the Court of Appeals 8 April 1982.\nColebles Coleman, Jr., an employee on a sanitation crew, was killed when a sanitation truck rolled over his body. The Deputy Commissioner found that intoxication was the proximate cause of the accident and denied compensation. G.S. 97-12. Upon appeal, the Full Commission granted compensation.\nColebles Coleman, Jr., died on 2 October 1978 from massive head and facial injuries received when a sanitation truck rolled over his body. A medical examiner arrived on the scene shortly thereafter around 12:50 p.m. He ordered Coleman\u2019s body transferred to Forsyth Memorial Hospital. The following day, a pathologist performed an autopsy on the body. He obtained a blood sample from decedent\u2019s heart. Toxicology tests revealed the blood was 230 milligrams percent ethanol. It was the pathologist\u2019s opinion that such an alcohol content would have rendered Coleman \u201cunder the influence\u201d at the time of his death, and was sufficient to cause impairment of his judgment and coordination.\nDr. McBay, with the office of the Chief Medical Examiner, testified as an expert witness and gave his opinion as to the effect a .23 blood alcohol level would have had on decedent at the time of his death. He testified:\n\u201cIn my own best judgment and opinion, at .23, Coleman would have been drunk. His face might have been flushed and his pupils dilated. His mood could or would be unstable or exaggerated; he would have loss of restraint; his thinking, or intellect, would be confused or clouded. He might have thickness of speech and may show staggering; he would have incoordination. He would lack judgment. He would have a slowing of response to stimuli or his reaction time would be slowed down. In my opinion, a .23 percent blood alcohol level would have definitely rendered Mr. Coleman intoxicated at the time of his death. I make no distinction between intoxicated and drunk. The difference between the two is hazy. Mr. Coleman was definitely under the influence of alcohol beyond any doubt.\nIn my opinion, a person with Mr. Coleman\u2019s physical characteristics and a .23 blood alcohol level would definitely be heavily impaired with respect to judgment and coordination.\nIn my opinion, Mr. Coleman would have to have consumed a minimum of 10 ounces (or 10 drinks) of a 100 proof liquor (50\u00b0/o alcohol) within an hour or two of the time he died to reach the concentration of blood alcohol (.23) found in Mr. Coleman\u2019s blood. If Mr. Coleman drank over a six hour period, one would have to add at least a drink every other hour if not more to get that concentration. Ten ounces of 100 proof liquor would be the minimum to get that concentration. In my opinion, a person with a .23 percent blood alcohol level could be impaired to the extent that he could or might stagger and fall under the wheels of a slowly backing garbage truck and thereafter be unable to extricate himself from a position of danger. A person with a .23 blood alcohol level might not have perceived the danger or be able to pull his mind to a point that he would decide to get out of danger.\u201d\nColeman\u2019s fellow employees testified that Coleman was not intoxicated when he arrived at work on 2 October at 6:45 a.m. During the morning, Coleman worked alone on one side of the street, following the truck. At the time of the accident, coworkers saw the truck backing up and Coleman on the ground, underneath the tire of the truck. There was no testimony as to Coleman\u2019s actions immediately preceding the accident.\nAfter hearing evidence, the Deputy Commission made the following pertinent findings of fact:\n\u201c7. Decedent consumed ethyl alcohol after starting the collection route on the morning of 2 October 1978. It was not supplied by defendant employer or a supervisory agent thereof.\n8. Decedent\u2019s control of his mental and bodily faculties was substantially, appreciably, and perceptibly impaired at the time of the accident causing the injuries that resulted in his death. This impairment was caused by alcohol consumption. He was intoxicated at the time of the accident. The injuries suffered by him were proximately caused by intoxication because the accident was caused by his intoxication.\u201d\nThe Deputy Commissioner denied compensation on the basis that accidental death was caused by decedent\u2019s intoxication. G.S. 97-12(1).\nPlaintiffs appealed to the Full Commission. After reviewing the record, the Full Commission set aside the opinion and award filed by the Deputy Commissioner. It made the following pertinent findings and conclusions of law:\n\u201c1. . . . Decedent was not intoxicated at the beginning of the working day.\n6. A blood sample was taken from decedent\u2019s heart during autopsy. . . . The blood sample was noted to be slightly decomposed during chemical analysis. The blood sample taken from the heart of decedent was determined to contain 230 milligrams percent of ethyl alcohol.\n7. The decedent was judicially declared to be the father of Christopher Dennard Fuller, now a minor, on 9 September 1966. . . . The deceased\u2019s father and mother were partially dependent upon the deceased.\n8. Decedent\u2019s death was the result of an injury by accident arising out of and in the course of his employment by the defendant-employer.\nComment\nIn the opinion of the undersigned, there is no evidence that the death of the employee was proximately caused by intoxication. Lassiter v. Town of Chapel Hill, 15 N.C. App. 98, 189 S.E. 2d 769 (1972).\nIt is the opinion of the undersigned that the deceased\u2019s minor child, being an acknowledged illegitimate under age 18, was legally wholly dependent upon the deceased employee and takes to the exclusion of those parties partially dependent. G.S. 97-39. . . .\u201d\nThe Full Commission awarded compensation to decedent\u2019s minor son.\nR. Lewis Ray and Associates, by R. Lewis Ray, for plaintiff appellants and plaintiff appellees, Bud Coleman and Dora Coleman.\nWomble, Carlyle, Sandridge and Rice, by Allan R. Gitter and James M. Stanley, Jr., for defendant appellant.\nMorrow and Reavis, by John F. Morrow, for appellee, Shirley Jean Robinson." }, "file_name": "0137-01", "first_page_order": 167, "last_page_order": 172 }