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 ThomasM. Keegan argued, Helena,Montana For Amicus Curiae: Hilley and Loring, Great Falls,Montana Emilie Loring argued, Great Falls,Montana

Submitted: February 22, 1980 ~ecided:

# MAR2

## 7194Mr. 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 InsuranceCo., from the findings of fact, conclusions of law,and jgdqment of the Montana Workers' CompensationCourt, the Honorable William E. Hunt presiding, entered on behalf of claimant Bonnie J. Gordon upon a finding that the death of her husband, JohnN. 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 employmentby 

### H. C. ConstructionCo., his permanent residencewas 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 themotel 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 

### 24miles 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 Gordonwas killed, are summarized in the Workers' Compensation Court's findings of fact: "10. JohnN. Gordonwas an electrician and he worked on May 1, 1978 with fellow electricians James Peters and JamesWalding. The employeessometimes got off work earlyand 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 leftthe job site ina pickup truck belonging toJames Peters. John N. Gordon leftthejob sitealone inhis own pickup. From thejob site, the three drove the approximate 24 milestoDenton, Montana, where they metat the Denton Bar. They arrived atthe Denton Bar no later than 6:00 p.m. and possibly as early as 5:30 p.m. "11. Atthe Denton Bar, Gordon, Peters and Walding joined other fellowemployees indrinking and playing pool. They continued inthese activities for some four to four and one-half hours. No food was served inthe bar, other than snacks, and the three employees did not eata meal atthebar orelsewhere. "12. Atabout 10:OO p.m. May 1, 1978, Gordon, Peters and Walding leftthe Denton Bar together. Gordon didnot leave inhis own pickup inwhich he had come, but accompanied Peters and Walding inPeters' pickup. From the Denton Bar the three traveled weston StatePrimary Highway 81. About 2.3mileswest of Denton, Peters' pickup went off theroad and John N. Gordon and James Walding were instantlykilled. James Peters was slightly injured and survived. "13. A highway patrolman and a Fergus County deputy sheriff investigated the one-car accident and thepatrolman determined thatthe accident resulted from speed and alcohol involvement. ~lood alcohol tests were taken 

## -- and theblood alcohol content

# on Walding was 

## -found 

### --- tobe .12, and on Peters

## 2. The blood sample on John N. 

### -- --- Gordon leaked 

### -- and no resultwas obtained." (Emphasis added.) The termsof John N. Gordon's employment were controlled by a union contractof 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 inexcess of $500 per week, not including overtime. Inaddition to his wages, he received a $22 per day subsistence allowance for working atthejob sitemore than 54 milesfrom GreatFalls. Article 111, Section 18, of the Union Agreement states: "No travel timeor travel allowance shallbe required of theEmployer before orafterworkinghours toany employee for traveling toor from any job located within a four (4) mileradius of Second Avenue at15thStreetNorth, Great Falls, Montana, plus the entire fenced boundaries of Malmstrom AirForce Base, immediately eastof GreatFalls, and allof Great Falls ~nternational Airport, when employees are ordered toreport on the job. "On jobs between the perimeter of the four (4) mileradius and fifty-four (54) road milesfrom Second Avenue at 15th StreetNorth, Great Falls, Montana exceptMalmstrom AirForce 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 milefrom theperimeter of the four (4) mile radius circle each way, per day worked. "On jobs inexcess of fifty-four (54) road miles --- 

### -- from Second Avenue 

## at 15thStreetNorth, Great 

### -- Falls, Montana, the em~lovee shallreceive twentvtwo dbllars ($22.00) eifective 3-1-78 and twentythree dollars ($23.00) effective 3-1-79 subsistence per day worked inlieuof any travel time ---- or travel allowance. 

# .

# . - "The employees willtransport their own tools and furnish their own transportation and travel on their own timereporting to the job and put ineight (8)hours on the job 

# . . . "On jobs having multiple jobsite locations, the Employer shalldesignate the location towhich each workman shallreport and each workman shall report on his own timeand inhis own transportation.

### " (Emphasis added.) Bonnie J. Gordon, widow of the decedent, filed a claim for death benefits under the provisions of the Workers' Compensation Acton 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 factand conclusions of lawand judgment on July 6, 1979, which held thatdecedent's death arose outof and inthe

course of hisemployment and that claimant and her four minor childrenwere entitled toworkers' compensation death benefits.Appellants present two substantive issues on appeal: 1. Did the payment todecedent of $22 per day "subsistence" according to the labor contract under which he was employedconstitutetravel pay so astoentitle 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 atthe Denton Bar for approximately four hours and by traveling ina direction which was opposite to thatof hisLewistown motel room when he leftthe bar and was killed inan automobile accident? We have inpast cases explained the foundation principles thatjustify the application of an exception to the "going and coming" rule. The "going and coming" rule states that travel by an employee toand from work is generally regarded as outside the course and scope of employment. The leadingMontana cases establishing an exception to this rule

areMcMillen 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 itsrationale

are summarized inMcMillen, 533 P.2d at 1098, quoting 1 Larsen, Workmen's Compensation 

## - Law, S16.30: "However, inthe 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, thejourney isheld tobe inthe course of employment. This result isusually correctbecause when the subject of transportation is singled out for special consideration it isnormally because the transportation involves a considerable distance and therefore qualifiesunder the rule herein suggested: thatemployment should be deemed to include travel when travel itself is a substantial part of the service performed. The sheer sizeof the journey is frequentlythe 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 "travelpay 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 ispaid 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 fromwork, any injury iswithin 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 contractualmethods of computing the respective travel allowances, stating: "InMcMillen, the computationwas predicated upon themiles 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 inMcMillen 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 distinctionvaries 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, 

### - thetravel to and fromwork 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. (Emphasisadded.) Appellant insurance carrier, relying on Majors 

### v. Lewis and Clark County (1921),60Mont. 608, 201 P. 268, claims that subsistence has a restrictedmeaning, limited to support. Majors was not a workers' compensation situationand did not involve the use of the word "subsistence" when it is clear from the context that both parties meant travel pay. InMajors the issuewas the interpretation to be given to words in carefully drafted state and Zedera1 legislztion. Federal 1a.sprovlded the United Stateswould pay for the "subsistence"of federalprisoners 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 simplematter 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 compensablebecause he stopped at Denton for a time and afterwardsproceeded toward Stanford and not Lewistown where he maintained a motel room by the month. It is uncontradicted from the testimony at the hearing that itwas John Gordon's custom and habit to often stay in Stanford with fellow employees instead of returning each night to Lewistown. Itwas 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 itsemployees spent the night, be it Stanford, Lewistown or "~imbuktu." All the company cared aboutwas that they show up atwork on time and put in a full day. The language of Montana cases is clear that travel to and fromwork 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. Therewas 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 nextmorning 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 Gordonwas 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 fromwork.The question of deviation raised by the insurer is, of course, its to prove. Steffesv. 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 appellantsmixed alcohol into the proceedings; however, if this was relevant, itwould 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 thatworking 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 accidentwhile en route fromwork, 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 squarelywithin the McMillen holding and presents

no true deviation question. The risk of travel iswhat was insured against, and when John Gordonwas 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 reasonableman, 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 forpersonal 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 accidentwas proceeding in the direction of his business destination. If the main trip ispersonal, 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 affirmed.

We concur:

Chief Justice 

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