OBENSCHAIN v. American Mutual Liability Insurance Co.
| Decision Date | 19 June 1962 |
| Docket Number | Civ. A. No. 4380. |
| Parties | Hazel V. OBENSCHAIN v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY. |
| Court | U.S. District Court — Eastern District of Tennessee |
Kramer, Dye, McNabb & Greenwood, Knoxville, Tenn., for plaintiff.
Taylor & Templeton, Knoxville, Tenn., for defendant.
Mrs. Hazel V. Obenschain sued the defendant, American Mutual Liability Insurance Company to recover workmen's compensation benefits under the Tennessee law for the death of her husband, who was, for some seven or eight years, a truck driver for Blue Ridge Transportation Company of Knoxville, Tennessee. Mrs. Obenschain has two children, one being 20 years of age and the other 14 years of age, both of whom are dependents.
Mr. Obenschain died on March 24, 1961 in the afternoon around 3:00 or 3:30 p. m. In addition to his truck driving duties, he washed trucks at the terminal of his employer on weekends in order to supplement his earnings. His regular run was from Knoxville to Chattanooga on Lookout Mountain at the edge of Georgia where he filled his truck, or caused it to be filled with petroleum products, including gasoline, for transportation from Chattanooga to Oak Ridge, Tennessee, where the products were deposited in storage tanks and after this was done deceased brought his truck to Knoxville.
It was his practice to report for duty around midnight or shortly thereafter. Accordingly, on the day of his death he reported to his employer's terminal in Knoxville and left Knoxville around 3:00 a. m. and arrived in Chattanooga about 6:00 a. m., where his truck was filled with gasoline and driven to Oak Ridge where he arrived about 10:00 a. m.
After he returned from Chattanooga and while he was on his way to the Oak Ridge bulk storage plant to deliver his fuel, he met with an accident on the Oak Ridge Turnpike about nine or ten miles from the bulk plant. He told Mr. William A. Alexander about his accident between 9:00 and 11:00 a. m.
Counsel for the plaintiff insists that what he told Mr. Alexander about the accident was competent as evidence under the res gestae rule. His conversation with Mr. Alexander occurred some 25 miles after the accident.
Counsel for the defendant objects to the consideration of the testimony on the ground that such testimony falls within the hearsay rule and is, therefore, not competent for any purpose.
The Court has some doubt as to whether the details of the conversation are competent as substantive testimony to prove the facts contained in the conversation, and for that reason does not base its conclusions upon any part of the conversation between the deceased and Mr. Alexander with respect to how the accident happened or the course that the tractor-trailer, which he was driving, traveled at the time of the accident.
There is proof in the record introduced by both sides that plaintiff's intestate had an accident on the morning of March 24th. This fact was brought out by counsel for the defendant in his cross-examination, and counsel, in his argument, referred to it by saying, in substance, that the accident was of small consequence as plaintiff's intestate was asked by Mr. Warwick, his dispatcher, and possibly Mr. Alexander, if he was asleep at the time of the accident and whether or not such sleeping caused the accident. There is some strength in counsel's position that if the accident had been of great consequence the parties would not have referred to it in such a jocular manner.
The truck that plaintiff's husband drove was a large tractor-trailer rig which was used, as previously indicated, to transport gasoline products. This truck would hold about 6,000 gallons of gasoline. The proof shows that gasoline weighs about 6.6 pounds per gallon. The length of the rig was about 40 feet. There is proof to the effect that the driving of the truck did not require much more effort or attention than the driving of an ordinary automobile. There is also proof to the effect that such driving involved strenuous work.
Defendant denies that driving of the tractor-trailer was hard or heavy work. Defendant says there was nothing unusual or strenuous in the work that plaintiff's intestate did on the date of his death or immediately prior to that time. Defendant says that the plaintiff's husband left the terminal about 2:00 or 3:00 in the morning and drove to Chattanooga. The truck travel log shows that he entered on his work at midnight and that he left Knoxville at 3:00 a. m. and arrived in Chattanooga at 6:00 a. m., left Chattanooga at 6:30, arrived at Oak Ridge at 9:30 a. m., and that he left Oak Ridge at 10:00 a. m. and arrived in Knoxville at 11:00 a. m.
The sole issue for the decision of the Court is whether there was any causal connection between the death of plaintiff's intestate and his work.
Mr. Obenschain had pain in his chest on March 4th to the extent that he visited Dr. Novinger's office in Knoxville. He contacted Dr. Novinger the following Monday, on March 6, when he was examined at the doctor's office. He was in severe pain on March 4th. On March 6th, the doctor told him to go home and take it easy. He previously had been hospitalized as a mild diabetic. This occurred in 1948. In addition to his mild diabetic trouble, he was suffering with arteriosclerosis, and these physical troubles made him more susceptible to heart trouble and this was one of the reasons that Dr. Novinger told him to stay off from work.
Mr. Obenschain was again examined by Dr. Novinger on March 17th and was advised again to stay off from work for a few additional days, or at least a week. He did not take the doctor's advice as he returned to work, and worked, on March 21st.
As previously indicated, he also worked on the night and day of March 24th, the day he died.
Patrolman Goodin, an Oak Ridge patrolman, testified in detail as to damage his truck did to the guard rail on the Oak Ridge Turnpike at the time of his accident on the morning of the 24th. As the truck travel log indicates, he returned to his employer's terminal at 11:00 a. m. on the morning of the 24th and was off duty for the rest of the day.
The testimony of Mr. Warwick, the dispatcher for his employer, indicates that there was nothing eventful that occurred after he returned from Chattanooga and Oak Ridge. He stayed around the terminal for two or three...
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