                       I N THE SUPREME COURT O F THE STATE O F MONTANA

                                                          1989


ROBERT H I C K S ,

              C l a i m a n t and A p p e l l a n t ,

        VS.

G L A C I E R PARK,         TNCORPORATED,

              Emplover,

        and

CNA INSURANCE COMPANY,

              D e f e n d a n t and R e s p o n d e n t .



A P P E A L FROM:           T h e W o r k e r s ' C o m p e n s a t i o n C o u r t of t h e S t a t e of M o n t a n a ,
                            T h e H o n o r a b l e T i m o t h y R e a r d o n , Judge p r e s i d i n g .

COUNSEL O F RECORD:

           For A p p e l l a n t :

John H . B o t h e ; B o t h e         & Lauridsen,          P.C.,     Columbia Falls, Montana

           For R e s p o n d e n t :

T o d d A. Hammer; W a r d e n , C h r i s t i a n s e n ,           Johnson      & Berg,       P.C.,
K a l i s p e l l , Montana
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          d      iL:?                                     S u b m i t t e d on B r i e f s : , T a n u a r y 3.2,
                                                             Decidedf          February 1 3 , 1989
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

      Claimant Robert Hicks appeals the -judgment of       the
Workers' Compensation Court which denied his claim         for
compensation benefits.     Claimant was injured in a       car
accident which the Workers' Compensation Court concluded   did
not arise out of and in the course of his employment.       We
affirm.
      Briefly, the facts are as follows:
       Claimant was a seasonal worker in Glacier National Park
employed by the respondent as a bellhop a.t the Many Glacier
Hotel.    While on duty on the evening of July 20, 1987, a
guest of the hotel asked the claimant to drive his vehicle
from an upper parking lot to the entrance of the hotel.
Claimant agreed to this, but found the car had a weak
battery. Claimant push-started the car and drove it from the
parking lot to the hotel entrance. Claimant, who considered
himself something of a mechanic, told the guest about the
problem and informed him the car would have to be driven in
order to charge the battery. Claimant also informed him the
car would have to be moved because it was in a fire lane.
The guest asked claimant to take care of the problem and
claimant agreed.
      Claimant, with the assistance of the desk clerk, Luther
Johnson, push-started the car.    With Johnson as passenger,
claimant drove the car through the parking lot at a high rate
of speed, failed to stop at a stop sign, then continued to
drive down the park road at an increasingly hiah rate of
speed.
      Park enforcement ranger Dona Taylor saw claimant run
the stop sign and exceed the posted speed limit.     Taylor
pursued the car, and used her emergency 1-ights to stop the
claimant.   Johnson testified that when he told claimant a
ranger was behind them, claimant refused to stop, but instead
he "put the pedal to the metal. "    Officer Taylor could not
catch up to the car, even traveling to speeds of 75 miles per
hour.   On the twisting mountain road, claimant eventually
lost control of the car, and caused the vehicle to leave the
road and strike a tree. The accident site was approximately
two and one-half miles from the hotel.         Officer Taylor
calculated cl-aimant's speed to be 97 miles per hour when the
accident happened. Claimant suffered injuries to his head,
knee and foot.
      The Workers' Compensation Court ruled claimant's
injuries did not arise out of and in the course of his
employment. The court also found that, even if    claimant had
been acting within the scope of his employment when he
initially drove the vehicle, he deviated from the scope of
his employment when he decided to evade the law enforcement
officer.    Claimant now argues the court erred because it
denied compensation for injuries sustained while performinq
acts in an unauthorized manner, as distinguished from the
performance of unauthorized acts.        Claimant argues the
performance of his duties in a negligent or unlawful manner
does not constitute a deviation from the course of his
employment.
      While we agree with this general statement of the law,
we disagree with its applicability to this factual situation
and with claimant's analysis of the Workers' Compensation
Court's judgment.    The court concluded claimant's injuries
did not arise out of and in the course of his employment.
The court addressed the issue of compensability further by
assuming the act of driving a guest's car to charge the
battery was within the course of claimant's employment. The
analysis was academic and does not afford a basis for appeal.
     In Steffes v. 93 Leasing Co., Inc. (1978), 177 Mont.
83, 88, 580 P.2d 450, 453, we stated the following rule:
          "It is a generally recognized principle
          that when an employee departs from the
          area where his job requires him to be, to
          pursue an objective in nowj-se essential
          - or incidental to any service he
          to
          is paid to perform, tFe continuity of the
          employment   is   severed, and     remains
          severed until he now returns to -the point
                                        -
          of deviation from the path of -  duty, to
                                           -
          where in the performance of his duty he
          is required to be." (Emphasis original.)
      In Steffes we noted that in determining whether to
apply the deviation rule, consideration is given to (1) the
character of the employee's deviation, whether pronounced or
inconsequential; ( 2 ) the materiality and purpose of the
deviation; (3) the reasonableness of the employee's behavior
in light of all the circumstances; (4) whether the deviation
caused or contributed to the injuries suffered; and (5) the
time and space in which the deviation occurred. Steffes, 580
P.2d at 454, citing Blair, Reference Guide to Workmen's
Compensation Law, 5 9.25.
      Claimant's suggestion that he was benefiting his
employer by driving the guest's car down a winding mountain
road and evading a law officer at speeds reaching 90 miles
per hour strains credulity. According to hotel's operations
manual, which claimant denied receiving, a bellhop's
responsibilities    included:   meeting with  tour   guides;
transporting luggage to guests' rooms; escorting guests to
assigned rooms; and delivering ice, rollaways, and extra
towels to guests' rooms. Of importance to this appeal is the
foll.owing provision:
            PARKING CARS FOR GUESTS:
            -
                  Guest is to park their (sic) own
                  vehicle, advise of proper area.
      Nothing in the operations manual authorized the
claimant to drive the guest's car.     Additionally, claimant
admitted he did not have permission from a supervisor to
drive the guest's car.    Claimant argues, however, that his
job was to satisfy the guests, and he was doing this when he
took the car to "charge the battery." Claimant supports his
argument by pointing to the following language in the
operations manual:
                 8. AELLMEN SHOIJLD BE OUT FRONT,
           ANTICIPATING THE NEXT CHECK-INAND  GIVING
           SERVICE TO GUESTS.     DO NOT SIT AROUND
           BELL STAND. THERE IS ALWAYS SOMETHING TO
           DO, KEEP BUSY.       (Emphasis original.)
and the employee handbook:
                 As a park concessioner, Glacier
           Park, Inc.'s primary responsibility is to
           provide quality service to all who come
           to visit the wilderness mountain area
           located in spectacular Glacier National
           Park, Montana.
Essentially, claimant argues his job was to do anything to
serve the guests.       We reject this interpretation of
claimant's scope of employment. Cl-aimant was employed as a
bellhop.    He was not employed as a valet parking lot
attendant, a mechanic, a delivery person or a race car
driver.   Claimant worked for a hotel, which was not in the
automotive or delivery service.
      We have held that where some reasonably immediate
service to the employer can be discerned, the claim should be
sustained; where there is no reasonably immediate service,
the claim should be denied. Steffes, 580 P.2d at 453, citing
Guarascio v. Industrial Accident Board (1962), 140 Mont. 497,
501, 374 P.2d 84, 86.       The Workers' Compensation Court
concluded that while it is "arguable that charging a car
battery for a hotel guest might benefit the employer in some
sense," it is clear to this Court claimant had deviated from
the course of his employment. The accident happened nearly
two and one-half miles from where claimant was supposed to be
stationed. Claimant was driving a guest's car at dangerous
speeds on a twisting mountain road in the dark of night, and
was   attempting to evade a       law enforcement officer.
Additionally, the injuries were the direct result of
claimant's deviation from the course of his employment. As
the Workers' Compensation Judge noted, "[tlhe direct cause of
claimant's injuries was his reckl-ess abandonment of common
sense. . "  . The employer received no reasonably immediate
service or benefit from the claimant's conduct and the claim
for compensation was properly denied.
      The judgment of the Workers ' Compensati~n Court is
a£firmed.




We concur:
