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 1 9 4
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This is an appeal by the employer, H. C. Smith Construc-
tion 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 hus-
band, 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 claim-
ant 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 Lewis-
town, 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 : 3 0 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 g o t o f f work e a r l y and on May 1, 1978
Gordon, Peters and Walding g o t o f f no l a t e r t h a n
5:30 p.m. and p o s s i b l y e a r l i e r . James P e t e r s
and James Walding l e f t t h e job s i t e i n a p i c k u p
t r u c k b e l o n g i n g t o James P e t e r s . John N. Gordon
l e f t t h e j o b s i t e a l o n e i n h i s own p i c k u p . From
t h e job s i t e , t h e t h r e e d r o v e t h e a p p r o x i m a t e
24 m i l e s t o Denton, Montana, where t h e y m e t a t
t h e Denton Bar. They a r r i v e d a t t h e Denton Bar
no l a t e r t h a n 6:00 p.m. and p o s s i b l y a s e a r l y a s
5 : 3 0 p.m.
"11. A t t h e Denton Bar, Gordon, P e t e r s and
Walding j o i n e d o t h e r f e l l o w employees i n d r i n k -
i n g and p l a y i n g p o o l . They c o n t i n u e d i n t h e s e
a c t i v i t i e s f o r some f o u r t o f o u r and one-half
h o u r s . N food was s e r v e d i n t h e b a r , o t h e r
o
t h a n s n a c k s , and t h e t h r e e employees d i d n o t
e a t a meal a t t h e b a r o r e l s e w h e r e .
"12. A t a b o u t 10:OO p.m. May 1, 1978, Gordon,
Peters and Walding l e f t t h e Denton B a r t o g e t h e r .
Gordon d i d n o t l e a v e i n h i s own p i c k u p i n which
h e had come, b u t accompanied P e t e r s and Walding
i n Peters' p i c k u p . From t h e Denton Bar t h e t h r e e
t r a v e l e d w e s t on S t a t e Primary Highway 81. About
2 . 3 m i l e s w e s t of Denton, P e t e r s ' p i c k u p went o f f
t h e r o a d and John N. Gordon and James Walding were
instantly killed. James Peters was s l i g h t l y i n -
j u r e d and s u r v i v e d .
"13. A highway p a t r o l m a n and a F e r g u s County
d e p u t y s h e r i f f i n v e s t i g a t e d t h e one-car a c c i d e n t
and t h e p a t r o l m a n d e t e r m i n e d t h a t t h e a c c i d e n t
r e s u l t e d from speed and a l c o h o l involvement.
~ l o o d l c o h o l t e s t s w e r e t a k e n - - blood
a and t h e
alcohol content on Walding - found - - - ,
was t o be . 1 2
and- P e t e r s 2.
- on The blood sample on - -N . - John
Gordon l e a k e d - - r e s u l t was o b t a i n e d . "
and no
(Emphasis added. )
The t e r m s of John N. Gordon's employment were c o n t r o l l e d
by a u n i o n c o n t r a c t o f t h e G r e a t F a l l s D i v i s i o n , Montana
C h a p t e r , N a t i o n a l E l e c t r i c a l C o n t r a c t o r s A s s o c i a t i o n and
Local Union No. 1 2 2 , I n t e r n a t i o n a l Brotherhood of E l e c t r i c a l
Workers, G r e a t F a l l s , Montana. He was e a r n i n g i n e x c e s s of
$500 p e r week, n o t i n c l u d i n g o v e r t i m e . I n addition t o h i s
wages, h e r e c e i v e d a $22 p e r day s u b s i s t e n c e a l l o w a n c e f o r
working a t t h e j o b s i t e more t h a n 54 m i l e s from G r e a t F a l l s .
A r t i c l e 111, S e c t i o n 1 8 , of t h e Union Agreement s t a t e s :
" N o t r a v e l t i m e o r t r a v e l a l l o w a n c e s h a l l b e re-
q u i r e d of t h e Employer b e f o r e o r a f t e r working
h o u r s t o any employee f o r t r a v e l i n g t o o r from
any job l o c a t e d w i t h i n a f o u r ( 4 ) m i l e r a d i u s
o f Second Avenue a t 1 5 t h S t r e e t N o r t h , G r e a t
F a l l s , Montana, p l u s t h e e n t i r e f e n c e d b o u n d a r i e s
o f Malmstrom A i r F o r c e Base, i m m e d i a t e l y e a s t o f
G r e a t F a l l s , and a l l of G r e a t F a l l s ~ n t e r n a t i o n a l
A i r p o r t , when employees are o r d e r e d t o r e p o r t on
t h e job.
"On j o b s between t h e p e r i m e t e r o f t h e f o u r ( 4 )
m i l e r a d i u s and f i f t y - f o u r ( 5 4 ) r o a d m i l e s from
Second Avenue a t 1 5 t h S t r e e t North, G r e a t F a l l s ,
Montana e x c e p t Malmstrom A i r F o r c e Base and
G r e a t F a l l s I n t e r n a t i o n a l A i r p o r t , employees
s h a l l be a l l o w e d a t r a v e l a l l o w a n c e a s f o l l o w s :
E f f e c t i v e 3-1-78 twenty-two c e n t s ( 2 2 6 ) ; E f f e c -
t i v e 3-1-79 t w e n t y - t h r e e c e n t s (236) p e r r o a d
m i l e from t h e p e r i m e t e r of t h e f o u r ( 4 ) m i l e
r a d i u s c i r c l e e a c h way, p e r day worked.
--- i n e x c e s s o f f i f t y - f o u r --m i l e s
"On j o b s (54) road
from Second Avenue at - t h S t r e e t N o r t h , G r e a t
- 15
F a l l s , Montana, t h e e m ~ l o v e es h a l l r e c e i v e twentv-
two d b l l a r s ($22.00) e i f e c t i v e 3-1-78 and twenty-
t h r e e d o l l a r s ($23.00) e f f e c t i v e 3-1-79 s u b s i s -
t e n c e p e r day worked - - -of any t r a v e l t i m e
i n lieu -
o r t r a v e l allowance.
- . .
"The employees w i l l t r a n s p o r t t h e i r own t o o l s
and f u r n i s h t h e i r own t r a n s p o r t a t i o n and t r a v e l
on t h e i r own t i m e r e p o r t i n g t o t h e j o b and p u t
i n e i g h t ( 8 ) h o u r s on t h e j o b ...
"On j o b s h a v i n g m u l t i p l e j o b s i t e l o c a t i o n s , t h e
Employer s h a l l d e s i g n a t e t h e l o c a t i o n t o which
e a c h workman s h a l l r e p o r t and e a c h workman s h a l l
r e p o r t on h i s own t i m e and i n h i s own t r a n s p o r -
tation. " (Emphasis added. )
Bonnie J. Gordon, widow of t h e d e c e d e n t , f i l e d a c l a i m
f o r d e a t h b e n e f i t s under t h e p r o v i s i o n s of t h e Workers'
Compensation A c t on b e h a l f o f h e r c h i l d r e n and h e r s e l f .
A f t e r Argonaut I n s u r a n c e Co. summarily d e n i e d h e r c l a i m on
November 21, 1978, M r s . Gordon p e t i t i o n e d t h e Workers'
Compensation C o u r t f o r a n o r d e r g r a n t i n g h e r c l a i m . After a
h e a r i n g on F e b r u a r y 27, 1979, t h e c o u r t i s s u e d f i n d i n g s of
f a c t and c o n c l u s i o n s of l a w and judgment on J u l y 6, 1979,
which h e l d t h a t d e c e d e n t ' s d e a t h a r o s e o u t of and i n t h e
c o u r s e of h i s employment and t h a t c l a i m a n t and h e r f o u r
minor c h i l d r e n w e r e e n t i t l e d t o w o r k e r s ' compensation d e a t h
benefits.
A p p e l l a n t s p r e s e n t two s u b s t a n t i v e i s s u e s on a p p e a l :
1. Did t h e payment t o d e c e d e n t of $22 p e r day " s u b s i s -
t e n c e " a c c o r d i n g t o t h e l a b o r c o n t r a c t under which he w a s
employedconstitutetravel pay s o a s t o e n t i t l e c l a i m a n t t o
w o r k e r ' s compensation b e n e f i t s under an e x c e p t i o n t o t h e
"going and coming" r u l e ?
2. Did John N. Gordon " d e v i a t e " from t h e c o u r s e of h i s
employment by s t o p p i n g a t t h e Denton Bar f o r a p p r o x i m a t e l y
f o u r h o u r s and by t r a v e l i n g i n a d i r e c t i o n which w a s op-
p o s i t e t o t h a t o f h i s Lewistown m o t e l room when he l e f t t h e
b a r and was k i l l e d i n a n a u t o m o b i l e a c c i d e n t ?
W have i n p a s t c a s e s e x p l a i n e d t h e f o u n d a t i o n p r i n c i -
e
p l e s t h a t j u s t i f y t h e a p p l i c a t i o n of a n e x c e p t i o n t o t h e
" g o i n g and coming" r u l e . The " g o i n g and coming" r u l e s t a t e s
t h a t t r a v e l by a n employee t o and from work i s g e n e r a l l y
r e g a r d e d a s o u t s i d e t h e c o u r s e and scope of employment. The
l e a d i n g Montana c a s e s e s t a b l i s h i n g a n e x c e p t i o n t o t h i s r u l e
a r e McMillen v. M c K e e & Co. ( 1 9 7 5 ) , 166 Mont. 400, 533 P.2d
1095, 1098, and E l l i n g s o n v . C r i c k Co. ( 1 9 7 5 ) , 166 Mont.
431, 533 P.2d 1100, 1101. The e x c e p t i o n and i t s r a t i o n a l e
a r e summarized i n McMillen, 533 P.2d a t 1098, q u o t i n g 1
L a r s e n , Workmen's Compensation - S16.30:
Law,
"However, i n t h e m a j o r i t y o f cases i n -
v o l v i n g a d e l i b e r a t e and s u b s t a n t i a l
payment f o r t h e expense of t r a v e l , o r
t h e p r o v i s i o n o f a n a u t o m o b i l e under t h e
e m p l o y e e ' s c o n t r o l , t h e journey i s h e l d
t o be i n t h e c o u r s e of employment. T h i s
r e s u l t i s u s u a l l y c o r r e c t b e c a u s e when
t h e s u b j e c t of t r a n s p o r t a t i o n i s s i n g l e d
o u t f o r s p e c i a l c o n s i d e r a t i o n it i s nor-
m a l l y because t h e t r a n s p o r t a t i o n i n v o l v e s
a c o n s i d e r a b l e d i s t a n c e and t h e r e f o r e
q u a l i f i e s under t h e r u l e h e r e i n s u g g e s t e d :
t h a t employment s h o u l d be deemed t o i n -
c l u d e t r a v e l when t r a v e l i t s e l f i s a sub-
s t a n t i a l p a r t of t h e s e r v i c e performed.
The s h e e r s i z e of t h e journey i s f r e q u e n t -
l y t h e p r i n c i p a l f a c t supporting t h i s
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 - - subsistence" while
pay or
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 distin-
guish McMillen on the basis of differences in the contrac-
tual 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 vary-
ing 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 mile-
age between residence and job site is not
important. The union contract singled out
transportation as the subject of a specific
allowance. When transportation --- sin-
is thus
gled - in the employment contract, -
out - - 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 sup-
port. 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.sprovlded 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 ab-
solutely 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 Argo-
naut'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 question-
able 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 - Workmen's Compensation Law, S9.25.
to 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 consump-
tion. 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 negli-
gently 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 con-
sidered 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 juris-
dictions, 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 - Si9.00.
Law,
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