No. 79-21 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

BONNIE J. GORDON, 

Claimant and 

H. C. SMITH CONSTRUCTION COMPANY, 

Employer, and ARGONAUT INSURANCE 

COMPANY, 

Defendants and 

Appeal from: Workers' Compensation Court 

Honorable William E. Hunt, Judge presiding. 

Counsel of Record: 

For Appellant: 

Harris, Jackson and Murdo, Helena, Montana 

L. V. Harris argued, Helena, Montana 

For Respondents: 

Garrity, Keegan and Brown, Helena, Montana 

Thomas M. Keegan argued, Helena, Montana 

For Amicus Curiae: 

Hilley and Loring, Great Falls, Montana 

Emilie Loring argued, Great Falls, Montana 

Submitted: February 22, 1980 

~ecided: MAR 2 7 194 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal by the employer, H. C. Smith Construction Co., and compensation carrier, Argonaut Insurance Co., 

from the findings of fact, conclusions of law, and jgdqment 

of the Montana Workers' Compensation Court, the Honorable 

William E. Hunt presiding, entered on behalf of claimant 

Bonnie J. Gordon upon a finding that the death of her husband, John N. Gordon, arose out of and within the course of 

his employment. 

John N. Gordon, age 33, was employed as an electrician 

by H. C. Smith Construction Co. on various missile sites in 

the area of Denton, Montana. During the fourteen months of 

his employment by H. C. Construction Co., his permanent 

residence was at Butte, Montana, where his wife, the claimant in this case, and four minor children reside. From 

March 20, 1978, to the date of his death, May 1, 1978, 

Gordon's temporary residence was the Brand T Motel in Lewistown, Montana. On May 1, 1978, he was still registered as a 

guest at the motel and was sharing a room with a fellow 

employee whose permanent residence was also in Butte. 

On Sunday, April 30, 1978, Gordon returned to the motel 

in Lewistown after spending the weekend with his family in 

Butte. On the morning of May 1, 1978, he drove his pickup 

truck from Lewistown to the jobsite approximately 24 miles 

northeast of Denton, Montana, where he was working a 7:00 

a.m. to 5:30 p.m. shift. 

The events that occurred on May 1, the day Gordon was 

killed, are summarized in the Workers' Compensation Court's 

findings of fact: 

"10. John N. Gordon was an electrician and he 

worked on May 1, 1978 with fellow electricians 

James Peters and James Walding. The employees 
sometimes got off work early and on May 1, 1978 

Gordon, Peters and Walding got off no later than 

5:30 p.m. and possibly earlier. James Peters 

and James Walding left the job site in a pickup 

truck belonging to James Peters. John N. Gordon 

left the job site alone in his own pickup. From 

the job site, the three drove the approximate 

24 miles to Denton, Montana, where they met at 

the Denton Bar. They arrived at the Denton Bar 

no later than 6:00 p.m. and possibly as early as 

5:30 p.m. 

"11. At the Denton Bar, Gordon, Peters and 

Walding joined other fellow employees in drinking and playing pool. They continued in these 

activities for some four to four and one-half 

hours. No food was served in the bar, other 

than snacks, and the three employees did not 

eat a meal at the bar or elsewhere. 

"12. At about 10:OO p.m. May 1, 1978, Gordon, 

Peters and Walding left the Denton Bar together. 

Gordon did not leave in his own pickup in which 

he had come, but accompanied Peters and Walding 

in Peters' pickup. From the Denton Bar the three 

traveled west on State Primary Highway 81. About 

2.3 miles west of Denton, Peters' pickup went off 

the road and John N. Gordon and James Walding were 

instantly killed. James Peters was slightly injured and survived. 

"13. A highway patrolman and a Fergus County 

deputy sheriff investigated the one-car accident 

and the patrolman determined that the accident 

resulted from speed and alcohol involvement. 

~lood alcohol tests were taken -- and the blood 

alcohol content on Walding - was found --- to be .12, 

-- and on Peters 2. The blood sample on --- John N. 

Gordon leaked -- and no result was obtained." 

(Emphasis added. ) 

The terms of John N. Gordon's employment were controlled 

by a union contract of the Great Falls Division, Montana 

Chapter, National Electrical Contractors Association and 

Local Union No. 122, International Brotherhood of Electrical 

Workers, Great Falls, Montana. He was earning in excess of 

$500 per week, not including overtime. In addition to his 

wages, he received a $22 per day subsistence allowance for 

working at the job site more than 54 miles from Great Falls. 

Article 111, Section 18, of the Union Agreement states: 

"No travel time or travel allowance shall be required of the Employer before or after working 
hours to any employee for traveling to or from 

any job located within a four (4) mile radius 

of Second Avenue at 15th Street North, Great 

Falls, Montana, plus the entire fenced boundaries 

of Malmstrom Air Force Base, immediately east of 

Great Falls, and all of Great Falls ~nternational 

Airport, when employees are ordered to report on 

the job. 

"On jobs between the perimeter of the four (4) 

mile radius and fifty-four (54) road miles from 

Second Avenue at 15th Street North, Great Falls, 

Montana except Malmstrom Air Force Base and 

Great Falls International Airport, employees 

shall be allowed a travel allowance as follows: 

Effective 3-1-78 twenty-two cents (226); Effective 3-1-79 twenty-three cents (236) per road 

mile from the perimeter of the four (4) mile 

radius circle each way, per day worked. 

--- "On jobs in excess of fifty-four -- (54) road miles 

from Second Avenue at -- 15th Street North, Great 

Falls, Montana, the em~lovee shall receive twentvtwo dbllars ($22.00) eifective 3-1-78 and twentythree dollars ($23.00) effective 3-1-79 subsistence per day worked ---- in lieu of any travel time 

- or travel allowance. . . 

"The employees will transport their own tools 

and furnish their own transportation and travel 

on their own time reporting to the job and put 

in eight (8) hours on the job . . . 

"On jobs having multiple jobsite locations, the 

Employer shall designate the location to which 

each workman shall report and each workman shall 

report on his own time and in his own transportation. " (Emphasis added. ) 

Bonnie J. Gordon, widow of the decedent, filed a claim 

for death benefits under the provisions of the Workers' 

Compensation Act on behalf of her children and herself. 

After Argonaut Insurance Co. summarily denied her claim on 

November 21, 1978, Mrs. Gordon petitioned the Workers' 

Compensation Court for an order granting her claim. After a 

hearing on February 27, 1979, the court issued findings of 

fact and conclusions of law and judgment on July 6, 1979, 

which held that decedent's death arose out of and in the 

course of his employment and that claimant and her four 

minor children were entitled to workers' compensation death 

benefits. 
Appellants present two substantive issues on appeal: 

1. Did the payment to decedent of $22 per day "subsistence" according to the labor contract under which he was 

employedconstitutetravel pay so as to entitle claimant to 

worker's compensation benefits under an exception to the 

"going and coming" rule? 

2. Did John N. Gordon "deviate" from the course of his 

employment by stopping at the Denton Bar for approximately 

four hours and by traveling in a direction which was opposite to that of his Lewistown motel room when he left the 

bar and was killed in an automobile accident? 

We have in past cases explained the foundation principles that justify the application of an exception to the 

"going and coming" rule. The "going and coming" rule states 

that travel by an employee to and from work is generally 

regarded as outside the course and scope of employment. The 

leading Montana cases establishing an exception to this rule 

are McMillen v. McKee & Co. (1975), 166 Mont. 400, 533 P.2d 

1095, 1098, and Ellingson v. Crick Co. (1975), 166 Mont. 

431, 533 P.2d 1100, 1101. The exception and its rationale 

are summarized in McMillen, 533 P.2d at 1098, quoting 1 

Larsen, Workmen's Compensation - Law, S16.30: 

"However, in the majority of cases involving a deliberate and substantial 

payment for the expense of travel, or 

the provision of an automobile under the 

employee's control, the journey is held 

to be in the course of employment. This 

result is usually correct because when 

the subject of transportation is singled 

out for special consideration it is normally because the transportation involves 

a considerable distance and therefore 

qualifies under the rule herein suggested: 

that employment should be deemed to include travel when travel itself is a substantial part of the service performed. 

The sheer size of the journey is frequently the principal fact supporting this 

conclusion . . ." 
The facts in McMillen were almost identical to those in 

this case. Employees were paid a travel allowance based on 

a sliding scale, not an actual mileage rate, and the parties 

had referred to the pay as "travel -- pay or subsistence" while 

here the reference is to "subsistence . . . in lieu of . . . 

travel allowance." In both cases the payment is for travel, 

no matter what the parties may have selected to call it. In 

other words, the superficial distinctions in the contract or 

the labels attached to benefits contained therein are not 

the primary consideration. Because the union contract 

singles out for special consideration a travel allowance and 

it is paid as an incentive to get men onto jobs and results 

in a reasonable benefit to an employer, then while the 

employee is "traveling" en route to or from work, any injury 

is within the exception and arises out of and in the course 

and scope of employment. 

In determining that the injuries in Ellingson arose out 

of and in the course of employment, we refused to distinguish McMillen on the basis of differences in the contractual methods of computing the respective travel allowances, 

stating: 

"In McMillen, the computation was predicated 

upon the miles actually traveled by the 

individual employee, while here it is based 

on the distance from the job site to the 

nearest county courthouse. The disparity 

results in McMillen employees receiving varying amounts of compensation depending on the 

distance traveled, while the employees here 

all received a uniform amount. 

"We cannot see where that distinction varies 

the applicability of the test enunciated in 

McMillen. The fact that the travel allowance 

here was based on a distance other than mileage between residence and job site is not 

important. The union contract singled out 

transportation as the subject of a specific 

allowance. When transportation --- is thus singled --- out in the employment contract, - the 
travel ----- to and from work is brought within 

the course of employment. Injuries sustained 

en route aretherefore compensable. McMillen, 

supra; 1 Larsen, Workmen's Compensation Law, 

516.30." 533 P.2d at 1101. (Emphasis added.) 

Appellant insurance carrier, relying on Majors v. Lewis 

and Clark County (1921), 60 Mont. 608, 201 P. 268, claims 

that subsistence has a restricted meaning, limited to support. Majors was not a workers' compensation situation and 

did not involve the use of the word "subsistence" when it is 

clear from the context that both parties meant travel pay. 

In Majors the issue was the interpretation to be given to 

words in carefully drafted state and Zedera1 legislztion. 

Federal 1a.s provlded the United States would pay for the 

"subsistence" of federal prisoners in local jails and also 

pay fifty cents per month per prisoner for the use and 

upkeep of the jail. 

The test to be applied to determine coverage under the 

exception to the rule really becomes a simple matter of 

substance over form. In this instance there can be no 

question that the underlying consideration singled out in 

the contract was travel and coverage is proper. 

Argonaut further contends that John Gordon's death is 

not compensable because he stopped at Denton for a time and 

afterwards proceeded toward Stanford and not Lewistown where 

he maintained a motel room by the month. 

It is uncontradicted from the testimony at the hearing 

that it was John Gordon's custom and habit to often stay in 

Stanford with fellow employees instead of returning each 

night to Lewistown. It was also proved that there were absolutely no company restrictions in this regard and he would 

be covered heading for either Stanford or ~ewistown. Roger 

Wingard testified that the company did not care where its 
employees spent the night, be it Stanford, Lewistown or 

"~imbuktu." All the company cared about was that they show 

up at work on time and put in a full day. 

The language of Montana cases is clear that travel to 

and from work is covered and that injuries sustained en 

route are compensable. The evidence supports the conclusion 

that John Gordon was traveling from work and was killed en 

route to Stanford where he was going to spend the night as 

he had done in the past. There was no requirement either 

oral or written that he go to Lewistown. To carry Argonaut's argument to its logical conclusion, if John Gordon 

were driving to work the next morning from Stanford, and he 

was killed before he reached Denton, then his death would 

not be compensable. 

Argonaut produced nothing of substance to refute the 

fact that John Gordon was proceeding to Stanford for the 

night as was his custom at times. A "white horse witness," 

found by a company official but never identified or produced 

at the hearing, purportedly told the official that he, the 

witness, had overheard a conversation of Gordon, Peters and 

Walding outside the Denton Bar discussing which one would 

drive to Stanford to get a steak. This testimony by the 

company official, being hearsay upon hearsay, is questionable in any light; but the insurer's inability to identify 

or produce or excuse nonproduction of the first hearsay 

conduit casts further doubt on the probative value of the 

testimony. The alleged statement supposedly refers to 

getting a steak at the "Sundown Inn" at Stanford, implying 

an intent to go out for dinner. This is not relevant in the 

first instance because even if that were true, Gordon was at 

the same time traveling while en route from work. 
The question of deviation raised by the insurer is, of 

course, its to prove. Steffes v. 93 Leasing Co. (1978), - 

Mont. , 580 P.2d 450, 454, 35 St-Rep. 816, citing Blair, 

Reference Guide - to Workmen's Compensation Law, S9.25. The 

appellants mixed alcohol into the proceedings; however, if 

this was relevant, it would not be a major concern as no one 

was intoxicated. As a practical matter, Walding had 0.12 

percent blood alcohol, which only said he has a legislative 

presumption of under the influence since the legislature 

selected to reduce the blood level of presumption from 0.15 

to 0.10 several years ago. Peters had 0.06 percent blood 

alcohol, which does not give rise to any presumption and 

which, as a practical matter, reflected very little consumption. There was no reading obtained on John Gordon and no 

evidence of over-indulgence on his part. 

Even if there were evidence that Gordon was legally 

intoxicated at the time of his death, which we emphasize 

there was not, we have held that that fact alone does not 

establish a deviation from the course of employment. Steffes 

v. 93 Leasing Co., supra. In any case, it cannot come as a 

great shock to the employer or be unforeseeable by the 

insurer that working men away from their homes and families 

may visit a saloon for a beer after work. Again, in arguing 

that stopping at the Denton Bar constitutes a disqualifying 

deviation, the insurer is attempting to interject fault into 

a no fault system. 

Workers' compensation legislation is the original no 

fault insurance. If an employee performs his job negligently and is killed as a result, his death is compensable. 

If a fellow employee negligently causes another employee's 

death, that is also compensable. The risk insured here, 
i.e., the possibility that a worker may be involved in a 

fatal automobile accident while en route from work, is 

exactly the risk contemplated by McMillen and Ellingson. 

What would the insurer here argue if John Gordon had stopped 

to eat his supper and then resumed his journey and been 

killed? 

Argonaut's contention of deviation could only be considered if John Gordon had been killed in the Denton Bar, 

but that question is not before this Court. Rather, this 

case falls squarely within the McMillen holding and presents 

no true deviation question. The risk of travel is what was 

insured against, and when John Gordon was killed while 

traveling from his job, his death was compensable. 

Assuming, arguendo, that the stop at Denton did present 

a true deviation question relevant in some way to our case, 

i.e., what is the conduct of a reasonable man, in this case 

a boomer electrician, miles out into a rural area, without 

his family, when it concerns stopping at Denton, Montana, 

for a beer and a game of pool after completing his work day? 

It could be said here that the conduct comported with the 

general requirements for all persons as stated by Professor 

Larson: 

"An identifiable deviation from a business 

trip for personal reasons takes the employee 

out of the course of his employment until he 

returns to the route of the business trip, 

unless the deviation is so small as to be 

disregarded as insubstantial. In some jurisdictions, the course of employment is deemed 

resumed if, having completed his personal 

errand but without having regained the main, 

business route, the employee at the time of 

the accident was proceeding in the direction 

of his business destination. If the main 

trip is personal, a business detour retains 

its business character through the detour." 

1 Larson, Workmen's Compensation - Law, Si9.00. 
See slso, Mohawk Rubber Co. v. Claimants in Death of Cribbs 

(1968), 165 Colo. 526, 440 P.2d 785; Adams v. U.S.F.&G. Co. 

(1971), 125 Ga.App. 232, 186 S.E.2d 784. 

The judgment of the Workers' Compensation Court is 

aff irmed. 

We concur: 

Chief Justice 

C),!A%i-. ,&&&/- 

Justices