Rathbun v. Taber Tank Lines

• Citation: 283 P.2d 966,129 Mont. 121,12 St.Rep. 128
• Decision Date: 20 May 1955
• Docket Number: No. 9468,9468
• Parties: Ruth D. RATHBUN, Claimant and Appellant, v. TABER TANK LINES, Inc., Defendant and Respondent, and Liberty National Insurance Co., Defendant and Respondent.
• Court: United States State Supreme Court of Montana

Page 966

283 P.2d 966

129 Mont. 121

Ruth D. RATHBUN, Claimant and Appellant, v. TABER TANK LINES, Inc., Defendant and Respondent and Liberty National Insurance Co., Defendant and Respondent.

No. 9468.

Supreme Court of Montana.

Submitted Feb. 18, 1955.

Decided March 25, 1955.

As Amended on Denial of Rehearing May 20, 1955.

F.N. Hamman, Polson, J.H. McAlear, Red Lodge, for appellant. J?4.J4H. McAlear argued the case orally.

H. L. McChesney, Floyd O. Small, Helena, for respondent. Floyd O. Small argued the case orally.

Sam D. Goza, Helena, Arthur H. Lalime, Butte, Murphy, Garlington & Pauly, Missoula, Coleman, Jameson & Lamey, Billings, Howard C. Burton, Great Falls, Frank I. Haswell, Whitefish, W. W. Wertz, Helena, amici curiae, urging that a rehearing be granted.

William T. Kelly, James F. Battin, Billings, Leo C. Graybill, Jr., Great Falls, Joseph M. Goldman & Lee Jordan, Missoula, Leif Erickson, Helena, amici curiae, urging that the petition for rehearing be denied.

ANGSTMAN, Justice.

Plaintiff brought this action to recover compensation for the death of her husband who was employed by the defendant company as a truck driver at the time of his death. After hearing before the industrial accident board, that board denied compensation. An appeal was taken to the district court and the court sustained the action of the industrial accident board. This appeal followed.

The board found:

'V. That competent medical evidence established that at the time immediately prior to the death of Paul G. Rathbun, there were no unusual atmospheric conditions constituting a risk to the deceased, and there were no sudden changes in his working environment that constituted any physical danger to a person in his circumstances.

'That the deceased was subjected to no undue strain or exertion during the time immediately preceding his death, which would tend to increase the burden on his heart.

'VI. That competent undisputed medical testimony established that the death of the deceased, Paul G. Rathbun, was caused by a failure of the heart by reason of its previously diseased condition.'

The board concluded:

'I. That the death of Paul G. Rathbun on December 4, 1952 did not occur by reason of injury from a fortuitous event as defined by Section 92-418, R.C.M.1947, but was the result of a condition of disease.

'II. That the death of Paul G. Rathbun did not arise out of his employment in accordance with Section 92-614, R.C.M.1947.'

Among other findings the court found, 'That the decedent died while operating a tank truck belonging to the employer, and that while so proceeding along the highway the deceased suddenly collapsed and died at the wheel of his truck; that at the time, or immediately prior to his death, there were no unusual conditions nor sudden changes in his working environment; and that said Paul G. Rathbun was not subjected to any kind of accident or undue strain or exertion during the period immediately preceding his death, but that from all of the evidence in this case, it appears that the death of the deceased, Paul G. Rathbun, was caused by a failure of the heart by reason of his previously diseased condition, and not as the result of any accident or fortuitous event.'

As before stated, Rathbun was a truck driver. At the time of his death he was 35 years of age, having a wife and two children. He started work for the defendant company in July 1951. He left Great Falls driving one of the trucks on the evening of December 3, 1952, between seven and eight o'clock in the evening. At the Union Oil Refinery in Cut Bank he loaded a load of gasoline for transportation to Polson. He drove the truck and trailer all night over the Marias Pass, which is a winding road with many sharp curves and was at that time slippery and icy. There is evidence that by reason of the condition of the highway he must have been subjected to unusual stress and strain in driving the truck over these roads.

He arrived in Polson about seven-thirty in the morning of December 4th. He then appeared exhausted and tired out. He had breakfast at Polson at the home of his father, while his gasoline was being unloaded. He did not rest while at Polson, but left about ten o'clock in the morning on the return trip. When he reached Cut Bank he received orders to go to Kevin and load his truck at that point and take it into Great Falls.

He arrived at Kevin about six o'clock in the evening. While his truck was being loaded he rested in the cab of the truck. After the truck was loaded and about seven o'clock in the evening he started from Kevin on his way to Great Falls. Approximately four miles east of Kevin, and about 500 feet westerly from Four Corners, where the road intersects the Shelby-Oilmont road, he was found dead sitting at the steering wheel of the truck. The truck had gone off the road into a borrow pit. As he sat at the steering wheel his head had dropped to his right, and his left hand was on the seat of the truck, and his feet were on the floor of the truck.

The trailer, which was attached to the truck, was on the slope of the highway with the left rear wheel still on the shoulder of the road. The engine of the truck was still running, the lights were on and the gear had been shifted into neutral. The air brakes were partially on, and the ventilator window on the driver's side of the cab was open. There was evidence that his clothing showed signs of perspiration at the time, but there were no marks of violence, bruises or cuts on his body. The tachometer of the car showed that the driver had revved up the motor as was customary at about this point in the highway because it was near the top of a knoll. The point where the truck went into the borrow pit was about 100 feet easterly from the knoll, and the tachometer showed that when the truck went over the grade it was going three or four miles per hour. The horn is sounded by pulling a cord situated a little over the driver's head. Mr. Vandeberg, who lives near where the truck ran into the borrow pit, stated by affidavit before the board that there was a blast of the horn just before the truck reached a point opposite his house. There is evidence that in the 11 months preceding his death, Rathbun had worked long hours without regular sleeping periods. Many trips would require 16 hours or more of driving time. During those 11 months he gained in weight from 180 or 185 pounds to 220 or 225 pounds. Also during that time he developed coughing spells to the extent that during rest periods his coughing would awaken him. Dr. Keenan examined him on March 20, 1952, pursuant to regulations of the interstate commerce commission and found his heart normal at that time. The evidence shows heavy turnover of drivers because of the strain 'and a good many of them just can't take it.' The standing orders to the drivers were to 'get on the road and get back as soon as possible.'

Two days before he met his death, Mr. Rathbun made a similar trip to Polson and return. That trip covers approximately 600 miles and takes about 20 hours of driving time out of 25 or 26 hours necessary for the trip. Between the last two trips made by Rathbun, there was a rest period of about 24 hours. Mr. Rathbun was paid 12cents per mile for every loaded mile that he traveled, and received nothing while traveling empty. The drivers were given the privilege of stopping and resting or sleeping at any time they desired and sleeping accommodations were provided in the truck. Usually the drivers have a rest period of about 30 hours between trips. No collision, accident or unusual happening of any kind occurred on the last trip taken by Mr. Rathbun, save his unexpected death while at the wheel and in the line of duty.

Dr. Fallon examined Rathbun's body within a few minutes after his death, and he gave it as his opinion that the cause of death was myocardial infarction and that long hours of physical exertion 'would generally predispose to such a condition.' Dr. Powers testified that any man with a bad heart should not continue to work, and he should be in bed and that exertion is one thing people with bad hearts should avoid. Among other things he said, 'Long hours, no matter even if a person is sitting down in an office for long hours, is a strain and the added strain of driving would, in my estimation, be something that would aggravate his heart condition because there is a certain amount of worry. A man driving along, if you have kids to think about you have to be on tension all of the time. Any man driving 16 to 20 hours a day I think that's a strain on a normal man. I don't think they can take it very long.'

The doctor testified that any strain, such as the act of applying the brakes, tooting the horn and placing the car in neutral would constitute exertion. He said the mere fact that he reached up to pull out the light might cause him to 'blow his heart' if he were in the throes of a ventricular fibrillation. He said there is a reasonable medical probability that the doing of those acts either hastened the man's death or caused it. He said it would aggravate it and it could have caused the death. He said any exertion for a man with a bad heart will tend to contribute to aggravate the condition. Dr. Powers, in response to hypothetical questions, thought Rathbun had some evidence of a rhythmic trouble such as ventricular fibrillation.

The evidence as to the cause of death stands undisputed unless the different names applied to the immediate cause of death given by the doctors for plaintiff may be said to raise a conflict. But both doctors reached the conclusion that driving with lack of sleep produces a nervous tension, and, as Dr. Powers put it, adds up to 'hasten a man's death with a bad heart.'

Defendant's only witness Taber raised a conflict on immaterial matters having to do with the conditions of employment, but there was nothing to dispute the essential facts of long working hours producing stress and strain...