Claim of Bouvia v. Atlantic Testing Laboratory

— Appeal from a decision of the Workmen’s Compensation Board, filed July 12, 1974, which determined that the decedent’s accidental death arose out of and in the course of his employment and was not due solely to his intoxication. The appellants do not dispute the existence in the record of substantial evidence establishing that the decedent was generally in the course of his employment while driving a vehicle which he so negligently operated as to fail to negotiate a sharp right-hand turn, thus causing his fatal injuries. The sole contention of the appellants is that the fact that the decedent had consumed alcohol to an intoxicating extent either constitutes a deviation from employment or requires a finding that the accident was solely the result of intoxication. Upon the present record there is no evidence which would support a finding that the consumption of alcoholic beverages constituted a deviation from the employment. While it might be argued that the intoxication contributed to the accident, the facts that the vehicle was traveling at a speed in excess of the speed limit and failed to negotiate a sharp turn do not in any way establish that intoxication was the sole cause of the accident. (See Workmen’s Compensation Law, §§ 10, 21, subd 4; Matter of Rosebrook v Glen & Mohawk Milk Assn., 40 AD2d 928, affd 33 NY2d 964; Matter of Sedlak v J. & A. Custom Heating & Air Conditioning, 32 AD2d 1020, affd 27 NY2d 784.) The decision is supported by substantial evidence. Decision affirmed, with costs to the Workmen’s Compensation Board. Herlihy, P. J., Sweeney and Larkin, JJ., concur; Kane and Main, JJ., dissent and vote to reverse in the following memorandum by Kane, J.