The court of appeals affirmed the judgment of the trial court holding that the phrase, "in a state of intoxication" contained in Tex.Rev.Civ.Stat.Ann. art. 8309 § 1(3) means a condition resulting from the use of alcoholic liquor, and only alcoholic liquor. 631 S.W.2d 551, 553. Aetna Casualty had asserted the defense of "intoxication" to prevent Silas' recovery for a back injury received on the job.
There was no testimony that appellee was seen taking any intoxicating substance on the day of his injury. In The Aetna Casualty Surety Co. v. Silas, 631 S.W.2d 551, 553 (Tex.App. — Beaumont 1982, writ ref'd n.r.e. with opinion), Article 8309, sec. 1 Tex.Rev.Civ.Stat.Ann., reading, "The term `injury sustained in the course of employment' as used in this Act, shall not include (1) . . .; (2) . . .; (3) An injury received while in a state of intoxication," was held to mean that an injury received while in a state of intoxication "is to be given its commonly understood meaning as a condition resulting from the use of alcoholic liquor." Even though the Supreme Court refused a writ, n.r.e. in the Silas case, in a per curiam opinion at 635 S.W.2d 425 the court said ". . . our refusal to grant this application for writ of error is not to be taken as approving the holding of the court of appeals that `in a state of intoxication' is a condition resulting only from the use of alcoholic liquor.