RALPH B. MAXWELL, District Judge.
On a clear, quiet morning in January of 1968, on an open stretch of highway near Devils Lake, two cars met at the center of the road in a violent head-on collision. The lives of all three occupants of the vehicles were lost.
This lawsuit is an outgrowth of that tragic event. The widow of the sole passenger has sued the estates of both drivers to recover for the wrongful death of her husband. She has charged each driver [499]*499with negligent conduct. The corporate employer of one of the drivers also has been made a party defendant.
A jury was waived. The trial court dismissed the corporate employer, but found both drivers at fault and awarded judgment against their estates in the sum of $95,959.45, with costs in the amount of $106.80, making a total judgment of $96,-066.25. That determination has been brought to this court with a request for a trial de novo.
The record before us shows that the plaintiff’s deceased husband, Gordon Bjerke, was an employee of the defendant Great Plains Supply Company at the branch lumber yard in Devils Lake. His home was in Churchs Ferry, some twenty miles west of Devils Lake.
After concluding his usual workday on Friday, January 19, 1968, Bjerke stayed at the shop. He continued to work on his own account, building tables for a personal client. He worked late. At 1 a.m., he quit and went to the Two-Spot Cafe. There he joined a group of fellow employees, including Orvin Lysne, the man fated to drive him to his death later that day. Lysne was the local branch manager of Great Plains. He had spent the entire evening at a local tavern. While there, he had consumed ten to twelve drinks and quite obviously was under their alcoholic influence.
The group of four men spent the rest of the night at the cafe, where they shared the contents of a “fifth” of Rock and Rye liquor. Shortly before 8 a.m., they went to the Great Plains Supply Company. Testimony indicates that Lysne still was somewhat under the influence of alcohol. He and Bjerke remained only briefly at the lumber yard. Taking Lysne’s car, they drove to Bjerke’s home in Churchs Ferry, where they remained about an hour and a half, visiting with Mrs. Bjerke and consuming copious amounts of coffee. Shortly after 10 a.m., they started back east toward Devils Lake.
Howard Heartso was the driver and sole occupant of the other ill-fated vehicle. He had visited his tax accountant that morning. At about 10:30 a.m., he left and drove west on U. S. Highway No. 2.
At a point I1/2 miles west of Devils Lake, the two cars collided. There were no surviving eyewitnesses. Heartso and Bjerke were killed outright. Lysne, grievously injured, was unable to talk before He, too, was claimed by death. We therefore are left with only circumstantial evidence to tell what happened.
Debris and gouges in the blacktop surface put the point of impact near the center of the road. Each vehicle therefore was encroaching somewhat upon the other’s lane of travel. That the vehicles met apace, and almost squarely head-on, is attested by the nature and enormity of the damage. Perhaps the most articulate clue at the scene was a tire mark arriving at the point of impact from the direction of travel of the Lysne car. The continuous mark, 198 feet long, originated at the north shoulder of the road, coursed across Heartso’s lane of travel toward the center, and terminated abruptly at the scene of impact. In this stark portraiture lies the irresistible connotation that Lysne, driving on the wrong side of the road, attempted to turn suddenly to his own lane and at midpoint was intercepted by the Heartso vehicle.
With points conceded by the parties aside, there are but three basic issues: (1) Was Bjerke acting outside the orbit of his employment at the time he met his death? (2) Does the evidence establish negligence on Heartso’s part? (3) Does the evidence show that Lysne was grossly negligent?
The trial court answered each of these questions in the affirmative. Upon trial de novo, such findings are not binding on this court. Frederickson v. Hjelle, 149 N.W.2d 733, 744 (N.D.1967). They will, however, be accorded appreciable weight. Matteson v. Polanchek, 164 N.W.2d 54, 55 [500]*500(N.D.1969); Verry v. Murphy, 163 N.W.2d 721, 727 (N.D.1969).
The plaintiff widow, apparently confident that Bjerke was acting outside the scope of his employment at the time of the accident, elected not to file a claim for Workmen’s Compensation benefits. She brought this lawsuit instead. Two of the defendants, Great Plains and the Lysne estate, nevertheless insist that there is a question of Workmen’s Compensation coverage. If there was such coverage on the fatal trip, this suit cannot survive against either the defendant employer or the fellow employee, Lysne. Such actions are abolished by the Workmen’s Compensation Act.
These two defendants further maintain that the question of coverage is exclusively for the Workmen’s Compensation Bureau to resolve. We disagree. A wrongful-death action certainly is cognizable, in the first instance, in the district court, and upon trial de novo, here. Merely because the case incidentally has a Workmen’s Compensation question in it does not oust the courts of jurisdiction.
We do concede, however, that questions of Workmen’s Compensation coverage normally should be resolved by the Workmen’s Compensation Bureau. Whenever a lawsuit generates an issue that pertains to an administrative agency’s area of primary jurisdiction, it is well for the court to refer that issue to the agency.
“If the court is presented with a case it can decide but some issue is within the competence of an administrative body, in an independent proceeding, to decide, comity and avoidance of conflict as well as other considerations make it proper to refer that issue [to the administrative body].” Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (1951).
In this case, however, the opportunity for referral to the Bureau no longer exists. The permissible period for filing a claim based on Bjerke’s death has long since passed. The Bureau has lost jurisdiction. Schmidt v. N. D. Workmen's Comp. Bureau, 73 N.D. 245, 13 N.W.2d 610, 615 (1944). All reasons that otherwise might impel us to stay our hand have lost their force. We are entirely free to determine Bjerke's Workmen’s Compensation status at the time of his death.
Workmen’s Compensation coverage is dependent upon whether an injury occurs “in the course of employment.” The standards for testing whether injury is suffered in the course of employment are these:
“ ‘ * * * Does the injury occur within the period of the employment? Does it occur in a place where the employee may reasonably be? Does it occur while he is reasonably fulfilling the duties of his employment?’ All these must concur under the circumstances.” Kary v. N. D. Workmen’s Comp. Bureau, 67 N.D. 334, 272 N.W. 340, 342 (1937).
The trial court concluded, in effect, that the rigor of these criteria eliminated the question of Workmen’s Compensation from the case.
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RALPH B. MAXWELL, District Judge.
On a clear, quiet morning in January of 1968, on an open stretch of highway near Devils Lake, two cars met at the center of the road in a violent head-on collision. The lives of all three occupants of the vehicles were lost.
This lawsuit is an outgrowth of that tragic event. The widow of the sole passenger has sued the estates of both drivers to recover for the wrongful death of her husband. She has charged each driver [499]*499with negligent conduct. The corporate employer of one of the drivers also has been made a party defendant.
A jury was waived. The trial court dismissed the corporate employer, but found both drivers at fault and awarded judgment against their estates in the sum of $95,959.45, with costs in the amount of $106.80, making a total judgment of $96,-066.25. That determination has been brought to this court with a request for a trial de novo.
The record before us shows that the plaintiff’s deceased husband, Gordon Bjerke, was an employee of the defendant Great Plains Supply Company at the branch lumber yard in Devils Lake. His home was in Churchs Ferry, some twenty miles west of Devils Lake.
After concluding his usual workday on Friday, January 19, 1968, Bjerke stayed at the shop. He continued to work on his own account, building tables for a personal client. He worked late. At 1 a.m., he quit and went to the Two-Spot Cafe. There he joined a group of fellow employees, including Orvin Lysne, the man fated to drive him to his death later that day. Lysne was the local branch manager of Great Plains. He had spent the entire evening at a local tavern. While there, he had consumed ten to twelve drinks and quite obviously was under their alcoholic influence.
The group of four men spent the rest of the night at the cafe, where they shared the contents of a “fifth” of Rock and Rye liquor. Shortly before 8 a.m., they went to the Great Plains Supply Company. Testimony indicates that Lysne still was somewhat under the influence of alcohol. He and Bjerke remained only briefly at the lumber yard. Taking Lysne’s car, they drove to Bjerke’s home in Churchs Ferry, where they remained about an hour and a half, visiting with Mrs. Bjerke and consuming copious amounts of coffee. Shortly after 10 a.m., they started back east toward Devils Lake.
Howard Heartso was the driver and sole occupant of the other ill-fated vehicle. He had visited his tax accountant that morning. At about 10:30 a.m., he left and drove west on U. S. Highway No. 2.
At a point I1/2 miles west of Devils Lake, the two cars collided. There were no surviving eyewitnesses. Heartso and Bjerke were killed outright. Lysne, grievously injured, was unable to talk before He, too, was claimed by death. We therefore are left with only circumstantial evidence to tell what happened.
Debris and gouges in the blacktop surface put the point of impact near the center of the road. Each vehicle therefore was encroaching somewhat upon the other’s lane of travel. That the vehicles met apace, and almost squarely head-on, is attested by the nature and enormity of the damage. Perhaps the most articulate clue at the scene was a tire mark arriving at the point of impact from the direction of travel of the Lysne car. The continuous mark, 198 feet long, originated at the north shoulder of the road, coursed across Heartso’s lane of travel toward the center, and terminated abruptly at the scene of impact. In this stark portraiture lies the irresistible connotation that Lysne, driving on the wrong side of the road, attempted to turn suddenly to his own lane and at midpoint was intercepted by the Heartso vehicle.
With points conceded by the parties aside, there are but three basic issues: (1) Was Bjerke acting outside the orbit of his employment at the time he met his death? (2) Does the evidence establish negligence on Heartso’s part? (3) Does the evidence show that Lysne was grossly negligent?
The trial court answered each of these questions in the affirmative. Upon trial de novo, such findings are not binding on this court. Frederickson v. Hjelle, 149 N.W.2d 733, 744 (N.D.1967). They will, however, be accorded appreciable weight. Matteson v. Polanchek, 164 N.W.2d 54, 55 [500]*500(N.D.1969); Verry v. Murphy, 163 N.W.2d 721, 727 (N.D.1969).
The plaintiff widow, apparently confident that Bjerke was acting outside the scope of his employment at the time of the accident, elected not to file a claim for Workmen’s Compensation benefits. She brought this lawsuit instead. Two of the defendants, Great Plains and the Lysne estate, nevertheless insist that there is a question of Workmen’s Compensation coverage. If there was such coverage on the fatal trip, this suit cannot survive against either the defendant employer or the fellow employee, Lysne. Such actions are abolished by the Workmen’s Compensation Act.
These two defendants further maintain that the question of coverage is exclusively for the Workmen’s Compensation Bureau to resolve. We disagree. A wrongful-death action certainly is cognizable, in the first instance, in the district court, and upon trial de novo, here. Merely because the case incidentally has a Workmen’s Compensation question in it does not oust the courts of jurisdiction.
We do concede, however, that questions of Workmen’s Compensation coverage normally should be resolved by the Workmen’s Compensation Bureau. Whenever a lawsuit generates an issue that pertains to an administrative agency’s area of primary jurisdiction, it is well for the court to refer that issue to the agency.
“If the court is presented with a case it can decide but some issue is within the competence of an administrative body, in an independent proceeding, to decide, comity and avoidance of conflict as well as other considerations make it proper to refer that issue [to the administrative body].” Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (1951).
In this case, however, the opportunity for referral to the Bureau no longer exists. The permissible period for filing a claim based on Bjerke’s death has long since passed. The Bureau has lost jurisdiction. Schmidt v. N. D. Workmen's Comp. Bureau, 73 N.D. 245, 13 N.W.2d 610, 615 (1944). All reasons that otherwise might impel us to stay our hand have lost their force. We are entirely free to determine Bjerke's Workmen’s Compensation status at the time of his death.
Workmen’s Compensation coverage is dependent upon whether an injury occurs “in the course of employment.” The standards for testing whether injury is suffered in the course of employment are these:
“ ‘ * * * Does the injury occur within the period of the employment? Does it occur in a place where the employee may reasonably be? Does it occur while he is reasonably fulfilling the duties of his employment?’ All these must concur under the circumstances.” Kary v. N. D. Workmen’s Comp. Bureau, 67 N.D. 334, 272 N.W. 340, 342 (1937).
The trial court concluded, in effect, that the rigor of these criteria eliminated the question of Workmen’s Compensation from the case. It found that Bjerke’s midmorn-ing trip to his home in Churchs Ferry was not related or incident to his employment. Upon full examination of the evidence, and giving appreciable weight to that finding, we concur.
So far as the record informs us, no company business was transacted or discussed on the trip. There was no visible connection with employment. It could not reasonably qualify as a lunch or “coffee break”; it was simply too far to travel and too extended in time for that. Moreover, it appears from the testimony that Bjerke was returning to Devils Lake not to go back to work but to deliver the tables he had made for his private client. We therefore conclude that it was a truant expedition, outside the scope of Bjerke’s employment.
[501]*501The effect of such conclusion is that plaintiff has properly initiated her claim in a judicial forum rather than with the Workmen’s Compensation Bureau, and that defendants’ motion to dismiss is invalid. We have no impediment to our consideration of the case upon the merits.
The plaintiff’s case against Lysne’s estate is founded upon gross negligence. Since Bjerke was a guest passenger of Lysne, simple negligence alone is insufficient to support a recovery. Under the so-called guest statute, the burden is upon the plaintiff to establish that “intoxication, willful misconduct, or gross negligence was the proximate cause of such death, injury, or damage.” Sec. 39-15-03, N.D.C.C. Only gross negligence has been alleged in the complaint.
The court below found that Lysne was guilty of gross negligence. The learned judge did not dictate into the record his ratio decidendi. Neither did he compose a written memorandum opinion. All we have are findings of fact which, although signed by him, were written with the partisan pen of plaintiff’s counsel.
From our independent examination of this record, we are unable to find support for the trial judge’s finding. On the contrary, we find the case wanting proof of one of the essential elements of gross negligence. Specifically lacking is evidence of mental attitude, which we heretofore have ruled necessary to establish gross negligence.
“The term gross as applied to the negligence of a motorist in an action brought by an automobile guest has reference to the mental attitude of the motorist in regard to the consequences which he should have foreseen and implies such gross recklessness as shows indifference to the consequences.” Holcomb v. Striebel, 133 N.W.2d 435, 438 (N.D.1965). [Emphasis supplied.]
Here, as in the Holcomb case, the plaintiff’s claim of gross negligence rests solely upon the inferences to be found in circumstantial evidence. The difficulty of proving gross negligence by inference alone is manifest in its definition:
“ ‘Gross negligence’ is, to all intents and purposes, no care at all. It is the omission of the care which even the most inattentive and thoughtless seldom fail to take of their own concerns. It evinces a reckless temperament. It is a lack of care which is practically willful in its nature.” Rubbelke v. Jacobsen, 66 N.D. 720, 268 N.W. 675, 676 (1936), and cases cited.
We ruled in the Holcomb case that circumstantial evidence will not suffice to prove gross negligence except where the circumstances are inconsistent with any other theory. Where the inferences to be found in the circumstantial evidence support a theory of ordinary negligence equally as well as one of gross negligence, then gross negligence fails.
In the instant case, the accident can be explained as well upon several hypotheses of ordinary negligence as upon that of gross negligence. All that the circumstantial evidence tells us is that Lysne strayed to the wrong side of the road. If it was simply because he was momentarily inattentive, it was ordinary, not gross, negligence. Holcomb v. Striebel, supra. If it was because he had dozed momentarily, it was ordinary, not gross, negligence. Holcomb v. Striebel, supra. Even if it was because he was intoxicated, it does not follow that it was gross negligence. It could as well have been ordinary negligence su-perinduced by intoxication. Borstad v. LaRoque, 98 N.W.2d 16, 23 (N.D.1959). It was gross negligence only if Lysne’s mental attitude was such that he intentionally or wantonly acted in disregard of the safety of himself and others, and there is nothing in the record to establish that this was so. The plaintiff therefore has failed [502]*502her burden of proving that Lysne was grossly negligent and that such gross negligence was a proximate cause of her husband’s death.
There is an obvious and necessary epilogue to our determination as to the Lysne liability. His employer, Great Plains Supply Company, which was joined upon an agency theory, also is entitled to a dismissal.
Certain legal presumptions attend our consideration of Heartso’s role in this tragedy. The law presumes a person to be innocent of any wrong; it presumes that a person has obeyed the law; and it presumes that a person has acted with proper care for his own concern. Sec. 31-11-03, subsecs. 1, 4, and 32, N.D.C.C.; Smith v. Knutson, 76 N.D. 375, 36 N.W.2d 323, 329 (1949); New York Life Ins. Co. v. Hansen, 71 N.D. 383, 2 N.W.2d 163, 167 (1941); Fried v. Olsen, 22 N.D. 381, 133 N.W. 1041, 1042 (1911). Such presumptions have controlling weight unless and until overcome by evidence showing the contrary. They exert even stronger influence where a person is killed and there are no witnesses. Hausken v. Coman, 66 N.D. 633, 268 N.W. 430, 437 (1936).
“The law, out of regard to the instinct of self-preservation, will presume, prima facie, that a person who has suffered death by accident was at the time of the accident in the exercise of ordinary care and diligence, and this presumption is not overcome by the fact of the accident even though no person saw it.” Kunkel v. Minneapolis, St. P. & S. S. M. Ry. Co., 18 N.D. 367, 121 N.W. 830, 835 (1909).
We are not persuaded that the evidence has overcome the presumption that Heartso exercised due care. If anything, the evidence tends more to reinforce the presumption. That Lysne was unlawfully in Heartso’s lane of travel immediately prior to the accident is conceded by the defendants. Lysne apparently had failed to make a driving correction that would have taken him around a gentle curve in the highway. As a result, he strayed over the centerline and went all the way to the shoulder of the opposite side of the highway before becoming aware of his error.
Because of the bend in the road, it is evident that Lysne’s improper position would not have become apparent to Heartso until he already was in peril. Here was a classic case of sudden emergency. The oncoming vehicle was in Heartso’s lane. With only two or three seconds to act, including reaction time, what should he do: Turn into the lane vacated by Lysne? Simply apply brakes and rely on the offender to take evasive action? Turn toward the snow-concealed hazards of the ditch? What he did in that awful, fleeting moment cannot be judged by normal standards of care. In sudden, unheralded confrontation with disaster, there is no time for judicious balancing of alternatives. The course chosen in imperative haste, while mind and muscle are horror-stricken, must be given every charitable consideration.
Heartso turned left. We now know it was the wrong choice, for, at about the same moment, Lysne turned right. But, without the aid of hindsight, we must say that his choice was as logical as the others available. Certainly it was not a negligent one. The law properly recognizes that negligence should not be imputed to a person because of what he does when confronted with a sudden, unanticipated emergency. Gravseth v. Farmers Union Oil Co. of Minot, 108 N.W.2d 785, 793 (N.D.1961). We therefore hold that the legal presumption that Heartso acted properly and with due care has not been successfully overcome by evidence to the contrary.
Judgment reversed.
STRUTZ, C. J., and TEIGEN, J., concur.
ERICKSTAD, J., deeming himself disqualified, did not participate; RALPH B. [503]*503MAXWELL, Judge of the First Judicial District, sitting in his stead.