No. 81-66 

IN THE 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: 

For Appellant: 

Crowley, Haughey, Hanson, Toole & Dietrich, Billings, 

Montana 

For Respondent: 

John Iwen, Great Falls, 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 as manager of Anthony's department 

store in Plentywood. Defendant appeals from the determination 

by the Workers' Compensation Court that Green's fatal injuries 

arose out of and in the course of his employment when he was 

killed while riding his personal motorcycle approximately 

three miles north of Plentywood. We affirm the holding of 

the Workers' Compensation Court. 

Green had been employed as manager 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 at work at approximately 8:00 a.m. Green 

stated to one of the employees that his motorcycle was not 

running properly and that he suspected the engine might be 

"carboned up". At approximately 10:30 a.m. Green advised 

another store employee that he was going to the Klothes 

Horse, a repair shop in Plentywood. That employee testified 

it was normal procedure to have certain goods repaired when 

the need would arise. When he left, Green indicated he 

expected to be back by 11:OO a.m. when the usual lunch 

breaks for store employees were to commence. The testimony 

of the owner of the Klothes Horse indicated that Green 

arrived on his motorcycle at approximately 10:30 a.m. and 

left a single ladies' shoe for repairs. Green inquired how 

long the repairs would take. The owner advised him that it 

would be approximately 15 to 20 minutes. Green replied, 

"That's great" and left the store, giving the impression to 

the owner of the Klothes Horse that Green was expecting to 

pick the shoe up within 15 or 20 minutes. 

Based on inquest testimony, the Workers' compensation 

Court further determined that it was apparent that Green 
left the Klothes Horse and proceeded out of Plentywood in a 

northerly direction on the highway. At a point approximately 

three miles north of Plentywood, Green lost control of his 

motorcycle, fell to the pavement and sustained fatal injuries. 

Testimony at the inquest revealed that the decedent was 

traveling in excess of 70 mph and not wearing a crash helmet, 

and that Green probably lost control of his motorcycle 

because the damper bar was out of adjustment. 

Green's district manager testified that a store manager'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 the motorcycle was not a risk ordinarily associated 

with a store manager's work. On the other hand, he was also 

aware that Green had a motorcycle and did use it in the 

course of his work as manager. 

In its conclusions of law, the Workers' Compensation Court 

included the following: 

"4. . . . However, in deviating from his employment 

to ride his motorcycle, it appears to this Court 

that the decedent may well have been removing carbon 

from the motorcycle and thereby improving its performance, an errand which can be construed from these 

facts as a benefit to both himself and the employer. 

The decedent has used his motorcycle 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 all the facts most favorable to the 

defendant the conclusion of this Court is that the 

accident in question did occur within the course 

and scope of the decedent's employment. Any other 

explanation makes less sense in view of the decedent's 

total dedication to his employment and the high 

esteem in which he was held by both the community and 

by his employers. While there was some conflict in 
the 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 at the time of his accident and 

that others also believed him to be on duty." 

In its judgment the court then determined that the decedent Green's widow is entitled to full benefits provided 

by the Workers' Compensation Act. 

Simply stated, the single issue this case presents is 

whether the fatal accident arose out of and in the course of 

Green's employment. Our function in reviewing 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 substitute our judgment 

for that of the trial court 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 in that the 

defendant claims there is not 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 in Steffes, 580 P.2d at 454, as follows: 

"'The dual purpose doctrine is that an employee 

may, while traveling, be on an errand of his own, 

but if he is at the same time on some substantial 

mission for his employer, he may be said to be 

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, in which it was 

said: 'To establish liability, the inference must 

be permissible that the trip would have been made 
though the private errand had been cancelled. . . The test in brief 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 

at the same time some purpose of his own. . . If, however, the work has had no part in creating 

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 to Workmen's Compensation 

Law, 59.21." 

In this case the evidence shows that as manager of the 

store, Green in the course of his employment left the store 

with the shoe for repair and took it to the repair shop. 

There can be no question that up to this point, he was within 

the course and scope of his employment. Having been told 

that the shoe would be repaired in 15 or 20 minutes, Green 

concluded that he should drive north of Plentywood, having 

given a clear indication that he planned to be back to pick 

up the shoe and to be back at the store within less than 30 

minutes, that is by 11:OO a.m. We do not know the precise 

purpose for his traveling approximately three miles north of 

Plentywood. Because of Green's comment about his motorcycle 

engine having carboned up, it is reasonable to conclude that 

his purpose was to free the engine of carbon so that it 

would run better. The circumstances of the accident are 

also consistent with that objective. 

In A. 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. At page 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 that belonged to a fellow 
employee. The practice of firemen making minor 

repairs to their automobiles during lunch hour 

was well known to their supervisors. The claimant 

attempted to clean the cap by putting gasoline on 

it and setting it on fire. Af ter the fire 

had gone out, the cap was still not clean, so 

the claimant poured more gasoline on it. At 

that point there was an explosion, and the 

claimant suffered first and 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 oil breather was 

a reasonable activity, and the injuries sustained 

as a result of the explosion arose out of the 

claimant's employment. This conclusion was 

bolstered by the fact that this kind of practice 

was well known to the plaintiff's supervisors, who 

not only did not object, but specifically allowed 

firemen to make such minor repairs during their 

lunch hour. " 

There are similarities between the Watkins case and the 

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

the time of the injury. Green had not left his employment 

as manager and therefore can also be considered to be on 

duty at the time of the accident. In Watkins the fireman 

was working on an automobile of a fellow employee when 

injured. With Green we may fairly assume he was seeking to 

remove carbon from his motorcycle. The Workers' Compensation 

Court found that Green's activity was for the benefit of the 

employer as well as himself which adds an element not present 

in the Watkins case. 

With Green we note the accident happened during a short 

lull in his employment. Green could have accomplished 

little had he returned to his store and been required to 

leave soon enough to return to the shoe store in 15 or 20 

minutes. In addition, Green was the manager of the store. 

As a result it would be appropriate for Green to leave the 

store to engage in various types of activities which are 

appropriate for store managers, and which are customarily 

engaged in,to increase good will towards the store. As an 

example, it would have been reasonable for Green to take 15 
or 20 minutes out of the store during which he could have 

gone to a restaurant in Plentywood in order to have a cup of 

coffee with others in the 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 in the course and scope of employment. 

As further pointed out in A. Larson, Workmen's Compensation 

Law 521.74 at page 5-56: 

"The leeway accorded an employee during an enforced hiatus in his 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. In Penn Stevedoring Corporation v. 

eardillo; a hauler who had discharged his 

load and had ten minutes to wait before he could 

make another trip was wandering about some floats 

moored at a 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 in by the employer, 

for haulers to wander about the dock during their 

idle periods. This case is a good illustration of 

the growing category of situations, discussed in 

general terms at the outset of the chapter, in 

which the 'mutual benefit' theory is inadequate 

to explain the result and in which work connection must be found in a 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 in his work 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 in several of the cited cases. We find there 

is substantial evidence to support the conclusion of the Workers' 

Compensation Court. 

Claimant argues that its motion to dismiss the appeal 

should be granted. The motion was based upon the unusual 

situation that the appellant's notice of appeal was filed on 

l(2nd Cir. 1948) 165 F.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 is well established that the filing of 

an appeal to this Court stays proceedings, thereby removing 

jurisdiction from a District Court or Workers ' Compensation 

Court to proceed further in the matter. McCormick v. McCormick 

(1975), 168 Mont. 136, 541 P.2d 765. Claimant's motion to dismiss 

the appeal is denied. 

We hold that sufficient evidence is present 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. 

We Concur: 

P