No. 81-66 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

JAY GREEN (FATAL)

## , MRS. BECKY L. GREEN, Claimant and Respondent,



### -vsC. R. ANTHONY COMPANY, Employer, and TRAVELERS INSURANCE COMPANY, Defendant and Appellant.

Appeal from: Workers' Compensation Court, The Honorable William E. Hunt, Judge presiding.

Counsel of Record: ForAppellant: Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana

For Respondent: John 

### Iwen, GreatFalls, Nontana

Submitted 

### on Brlefs: 

### June 4f 1981



## (JCT 

## 7

# 1981 Filed;Mr. Justice Fred J. Weber delivered the Opinion of the Court Jay Green was employed asmanager of Anthony's department storeinPlentywood. Defendant appeals from the determination by the Workers' Compensation Court that Green's fatal injuries

arose outof and in the course of his employment when he was killed while riding hispersonal motorcycle approximately threemiles north of Plentywood. We affirm the holding of theWorkers' Compensation Court. Green had been employed asmanager of the Plentywood store for several years prior to the accident. The Workers' Compensation Court found that on the date of the accident Green arrived atwork atapproximately 8:00 a.m. Green stated to one of the employees thathismotorcycle was not running properly and that he suspected the engine might be "carboned up". Atapproximately 10:30 a.m. Green advised another storeemployee that he was going to the Klothes Horse, a repair shop inPlentywood. That employee testified itwas normal procedure to have certain goods repaired when the need would arise. When he left, Green indicated he expected tobe back by 11:OO a.m. when the usual lunch breaks for storeemployees were to commence. The testimony of the owner of the Klothes Horse indicated that Green arrived on hismotorcycle atapproximately 10:30 a.m. and lefta single ladies' shoe for repairs. Green inquired how long the repairs would take. The owner advised him that it would be approximately 

### 15to 20 minutes. Green replied, "That's great" and leftthe store, giving the impression to the owner of the Klothes Horse that Green was expecting to pick the shoe up within 15or 20 minutes. Based on inquest testimony, theWorkers' compensation Court further determined that 

### it was apparent that Greenleftthe Klothes Horse and proceeded out of Plentywood ina northerly direction on the highway. Ata point approximately three

### milesnorth of Plentywood, Green lostcontrol of his motorcycle, fell to the pavement and sustained fatalinjuries. Testimony atthe inquest revealed that the decedent 

### was traveling inexcess of 70 mph and not wearing a crash helmet, and thatGreen probably lostcontrol of hismotorcycle because the damper bar was outof adjustment. Green's districtmanager testified that a storemanager's duties customarily involved supervising employees, assisting with sales, handling inventory, customer relations and creation of good 

### will. He also testified that Green's motorcycle 

### was not a company vehicle and that the decedent

was not paid mileage or reimbursement or per diem of any type. He also testified that the risk which he perceived in riding on themotorcycle was not a risk ordinarily associated with a storemanager's work. On the other hand, he was also

aware that Green had a motorcycle and did use it inthe

course of hiswork asmanager. In

### its conclusions of 

### law, theWorkers' Compensation Court included the following: "4. 

# . . . However, indeviating from his employment to ride hismotorcycle, 

### it appears to this Court that the decedentmay 

### wellhave been removing carbon from themotorcycle and thereby improving itsperformance, an errand which can be construed from these facts 

### as a benefit toboth himself and the employer. The decedent has used hismotorcycle for the Company in the past, not only the 

### same day of the accident, but on other occasions and while not specifically approved by the employer it was not specifically prohibited. "5. Taking allthe factsmost favorable to the defendant the conclusion of this Court is that the accident inquestion did occur within the course and scope of the decedent's employment. Any other explanation makes less sense inview of the decedent's total dedication to his employment and the high esteem inwhich he 

### was held by both the community and by his employers. While there was some conflict inthe time the decedent might return to his job as testified to by the various witnesses, there 

### is no doubt that his employer and his employees considered him to be on duty atthe time of his accident and that others alsobelieved him to be on duty." In 

### itsjudgment the court then determined that the decedent Green's widow is entitled to full benefits provided by theWorkers' Compensation Act. Simply stated, the single issue this case presents is whether the fatal accident arose out of and inthe course of Green's employment. Our function inreviewing a decision of the Workers' Compensation Court 

### is to determine whether there 

### is substantial evidence to support the findings and conclusions of that court. We cannot substituteour judgment for that of the trialcourt as to the weight of the evidence

on questions of fact. Where there is substantial evidence to support the findings of the Workers' Compensation Court, this Court cannot overturn the decision. Steffes v. 93 Leasing Co., Inc., (1978), 177 Mont. 83, 580 P.2d 450. This case 

### is similar to the Steffes case inthat the defendant claims there isnot substantial evidence in the record to support the conclusion that the death occurred within the course and scope of employment. The Workers1 Compensation Court found that Green was on an errand which

can be construed from the facts 

### as a benefit both to himself and the employer. It 

### is apparent that the court thought the Green case comes within the "dual purpose" rule, which 

### was described inSteffes, 580 P.2d at454, as follows: "'The dual purpose doctrine is that an employee may, while traveling, be on an errand of his own, but if he is atthe same 

### timeon some substantial mission for his employer, he may be said tobe within the ambit of his employment. The rule was originally laid down by Justice Cardozo, in the case of Marks' Dependents v. Gray [(1929), 251 N.Y. 90, 167 N.E. 181, 182-1831, inwhich it was said: 'To establish liability, the inference must be permissible that the tripwould have been madethough the private errand had been cancelled. 

# . 

# . The 

### test inbrief 

### is this: if the work of the employee 

### creates the necessity for travel, he 

### is in the course of his employment, though he 

### is serving atthe same time some purpose of his own. 

# .

# . If, however, the work has had no part increating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been cancelled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.

## '" "'The doctrine has been consistently followed.' Blair, Reference Guide toWorkmen's Compensation Law, 59.21." In this case the evidence shows that asmanager of the store, Green inthe course of his employment leftthe store with the shoe for repair and took it to the repair shop. There can be no question that up to thispoint, he was within the course and scope of his employment. Having been told that the shoewould be repaired in 15or 20 minutes, Green concluded that he should drivenorth of Plentywood, having given a clear indication that he planned tobe back topick up the shoe and tobe back 

### atthe storewithin less than 30 minutes, that isby 11:OO a.m. Wedo not know the precise purpose for his traveling approximately three miles north of Plentywood. Because of Green's comment about hismotorcycle engine having carboned up, it is reasonable toconclude that hispurpose was to free the engine of carbon so that 

### it would run better. The circumstances of the accident are also consistentwith that objective. InA. Larson, Workmen's Compensation 

## - Law 521.74 (1978) there is an extensive discussion of cases covering lulls in work and injuries occurring during such periods. Atpage 5- 58, the text states: 

# ".

. . In the North Carolina case of Watkins v. City of Wilmington, the claimant fireman, while on his lunch break and during a 24-hour tour of duty, attempted to clean the oil-breather cap from an automobile thatbelonged to a fellowemployee. The practice of firemen making minor repairs to their automobiles during lunch hour was wellknown to their supervisors. The claimant attempted toclean the capby putting gasoline on 

### it and setting iton fire. Af

### ter the fire had gone out, the cap was 

### still not clean, so the claimantpoured more gasoline on 

### it. At thatpoint there was an explosion, and the claimant suffered firstand second degree burns on his face and upper extremities. The Supreme Court, affirming the Court of Appeals, held that the claimant's cleaning of the oilbreather was a reasonable activity, and the injuries sustained as a result of the explosion arose outof the claimant's employment. This conclusion was bolstered by the factthat thiskind of practice was 

### wellknown to the plaintiff's supervisors, who not only did not object, but specifically allowed firemen tomake such minor repairs during their lunch hour.

### " There are 

### similarities between theWatkins 

### case and the present Green case. The fireman was on duty in~atkins at the 

### timeof the injury. Green had not lefthis employment



### as manager and therefore can alsobe considered tobe on duty atthe 

### timeof the accident. InWatkins the fireman



### wasworking on an automobile of a fellow employee when injured. With Green 

### wemay fairly assume he 

### was seeking to

remove carbon from hismotorcycle. The Workers' Compensation Court found that Green's activitywas for the benefit of the employer as

### well ashimself which adds an element not present intheWatkins case. With Green we note the accident happened during a short lullinhis employment. Green could have accomplished littlehad he returned tohis store and been required to leave soon enough toreturn to the shoe storein 15or 20 minutes. In addition, Green was themanager of the store. As a result itwould be appropriate for Green to leave the store to engage invarious types of activitieswhich are appropriate for storemanagers, and which 

### are customarily engaged in,to increase good 

### willtowards the store. As an example, itwould have been reasonable for Green to take 15or 20 minutes out of the storeduring which he could have gone to a restaurant inPlentywood inorder to have a cup of coffee with others inthe community. Had he done so, and been injured through his own negligence when returning from having such cup of coffee, it would be reasonable to class the activity as inthe course and scope of employment. As further pointed out inA. Larson, Workmen's Compensation 

### Law 521.74 atpage 5-56: "The leeway accorded an employee during an enforced hiatus inhis work extends not only to resting and sleeping but also to a certain amount of wandering around and even undertaking what otherwis

### [el might 

### seem to be distinctly personal activities. InPenn Stevedoring Corporation v. eardillo; a hauler who had discharged his load and had ten minutes to wait before he could make another tripwas wandering about some floats moored ata dock watching bales being unloaded and fell into the water while crossing from one float to another. Compensation was awarded. The added-risk argument was rejected, largely on the theory that there was custom, acquiesced inby the employer, for haulers towander about the dock during their idleperiods. This case 

### is a good illustration of the growing category of situations, discussed in general terms atthe outset of the chapter, in which the 'mutual benefit' theory 

### is inadequate to explain the result and inwhich work connection must be found 

### ina combination of known human nature and the particular circumstances and practices of the employment." Larson refers to a number of similar cases where a workman has been injured during a break or hiatus inhiswork and where compensation has been extended to such fact situations. In the Green case

### we find that the facts show a closer rel-ationship to employment than 

### inseveral of the cited cases. We find there is substantial evidence to support the conclusion of the Workers' Compensation Court. Claimant argues that itsmotion todismiss the appeal should be granted. The motion was based upon the unusual situation that the appellant's notice of appeal was filed on

l(2ndCir. 1948) 165F.2d 789.February 10, and on the same day counsel for claimant filed

a motion for rehearing. The notice of appeal was properly served and filed. It 

### iswell established that the filing of

an appeal to this Court staysproceedings, thereby removing jurisdiction from a DistrictCourt or Workers

## ' Compensation Court toproceed further in thematter. McCormick 

### v. McCormick (1975), 168Mont. 136, 541 P.2d 765. Claimant's motion to dismiss the appeal 

### isdenied. Wehold that sufficient evidence 

### ispresent to support the finding and conclusion that the decedent's widow 

### is entitled to benefits provided by the Workers' Compensation Act, and the judgment of the Workers' Compensation Court 

### is affirmed.

WeConcur: P