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DUANE DRISCOLL, Claimant and Appellant
vs.
.v. GREAT PLAINS MARKETING COMPANY and LINCOLN LUMBER INC. Employer and appellee and FARMERS ALLIANCE MUTUAL INSURANCE CO. Insurer and Appellee
 
Case:
No. 13564
 
Location:
Supreme Court of South Dakota
 
Date:
July 28, 1982, Opinion Filed
 
Attorneys:
Thomas M. Issenhuth of Arneson Issenhuth & Gienapp Madison South Dakota Counsels for Claimant and Appellant.
Edwin E. Evans of Davenport Evans Hurwitz & Smith Sioux Falls South Dakota Counsels for Employer and Appellee and Insurer and Appellee.
 
Author:
Per Curiam
 

Employee Duane Driscoll appeals from an order of the circuit court denying his claim for worker's compensation. The circuit court's order affirmed the Deputy Director of the Division of Labor and Management Department of Labor who had also denied the claim after a hearing. We affirm.

Employee had been drinking beer one winter day when he had an auto accident which gave rise to his claim for worker's compensation. As a job superintendent employee lived in Sioux Falls South Dakota and coordinated construction for residences in Dell Rapids a few miles north. While returning from Dell Rapids on the day of the accident he stopped at a bar to talk to a subcontractor and socialize. After drinking five or six beers he left. By that time it was dark. As he traveled a county road to Sioux Falls employee came to an "S" curve in the road where a bridge crossed a ditch. The road had been dry and clear up to this point. The December weather however had alternately thawed and frozen the snow along the curve making it icy and slippery. Employee testified that he was driving about fifty-five when he came to the curve but he "didn't know it was there." The curve had no traffic warning sign. Employee applied his brakes but was unable to slow down; he hit the bridge and was injured. His blood test two hours after the accident showed a blood alcohol content of.16.

A deputy sheriff who investigated the accident testified that he was able to safely drive his patrol car through the curve at thirty forty and fifty-five miles per hour. An expert testified that employee's blood alcohol content at the time of the accident would have been.20 and that employee's judgment vision and muscle reactions would have been impaired. This expert also testified that a driver with a blood alcohol content of.16 is about one hundred times more likely to be involved in an accident than if he had had nothing to drink.

The Deputy Director found that employee's intoxication was the proximate cause of the accident. Employee appealed the administrative denial of worker's compensation to the circuit court. The circuit court's order affirmed the findings of fact and conclusions of law of the Division of Labor and Management Department of Labor and affirmed the denial of employee's claim. Employee appeals from the circuit court's order contending that Court erred in concluding that his intoxication was the proximate cause of the accident.

"In reviewing on appeal the circuit court's judgment under the South Dakota Administrative Procedures Act (SDCL ch.1-26) we must make the same review of the administrative agency's action as does the circuit court unaided by a presumption that the circuit court's decision is correct. [cites omitted]" Matter of Certain Territorial Electrical Boundaries 318 N.W.2d 118 121 (S.D.1982). This review is limited to determining whether the agency's findings are clearly erroneous. SDCL 1-26-36(5); Barkdull v. Homestake Mining Co. 317 N.W.2d 417 (S.D.1982); Matter of Clay-Union Elec. Corp. 300 N.W.2d 58 (S.D.1980).

Having found that employee's intoxication was the proximate cause of the accident the Deputy Director correctly concluded that SDCL 62-4-37 barred the claim for worker's compensation. This statute provides:

No compensation shall be allowed for any injury or death due to the employee's willful misconduct including intentional self-inflicted injury intoxication or willful failure or refusal to use a safety appliance furnished by the employer or to perform a duty required by statute. The burden of proof under this section shall be on the defendant employer.

Though the statute uses the words "due to " this can only mean proximate cause. Aetna Life Insurance Co. v. Carroll 169 Ga. 333 150 S.E.208 (1929); Overall v. Southern Subaru Star Inc. 545 S.W.2d 1 (Tenn. 1976); 1A A. Larson The Law of Workmens Compensation SEC. 34.33 6-80 to 6-83 (1979). The term "due to" carries the same meaning in this statute as "proximate cause" does in the law of negligence.

Employee argues that the proximate cause of the accident was the road conditions and not his intoxication. He argues that intoxication was only a contributing factor that does not bar recovery. When an injury may have had several contributing or concurring causes the correct standard against which cause is measured is the substantial factor test and not a "but for" test.

When there is evidence of concurring or contributing causes the trial court is required to apply the proximate causation standard expressed in South Dakota Pattern Jury Instructions Vol. I SEC. 15.01:

When the expression "proximate cause" is used it means that cause which is an immediate cause and which in natural or probable sequence produced the injury complained of. It is a cause without which the injury would not have been sustained. It need not be the only cause nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time which in combination with it causes the injury.

Leslie v. City of Bonesteel 303 N.W.2d 117 120 (S.D.1981). Although the road conditions may have been a contributing factor the effects of employee's intoxication in causing his injury would lead reasonable men to conclude that it was a substantial factor in causing the injury. Woosley v. Central Uniform Rental 463 S.W.2d 345 (Ky. 1971). We are not left with a definite and firm conviction that a mistake has been made. In re Estate of Hobelsberger 85 S.D.282 181 N.W.2d 455 (1970). We conclude therefore that the Deputy Director was not clearly erroneous in finding that the accident was proximately caused by employee's intoxication. Hence the Deputy Director correctly concluded that SDCL 62-4-37 barred employee's claim.

The judgment is affirmed.