                                              NO.     92-114
                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                    1993

DAVID    DALE,
               Claimant         and Respondent,

        -v-
TRADE STREET, INC. and STATE
COMPENSATION MUTUAL INSURANCE FUND,
               Employer,         Defendant          and Appellant.




APPEAL FROM:            Workers'  Compensation  Court
                        For the State  of Montana
                        The Honorable  Timothy  Rceardon,                  Judge   presiding.


COUNSEL OF RECORD:
                 For   Appellant:
                        Laurence          Hubbard,     State     Compensation                   Mutual
                        Insurance        Fund, Helena,    Montana
                 For   Respondent:
                        Thomas C. Bulman,              Attorney      at Law, Missoula,      Montana
                 For   Amicus       Curiae:

                        Oliver H. Goe, Attorney    at Law, Helena,         Montana
                        (for Montana Motor Carriers       Association,      Inc.)
                            -.
                                    Submitted   on Briefs:       February     18, 1993
                            ri
                             '
                                                  Decided:       April    1, 1993
Filed&%%      1-1
Justice           Fred         J.     Weber         delivered              the         Opinion            of     the        Court.


          This          is     an appeal               from        the         Worker's             Compensation                       Court         of        a

judgment               concluding               that         the        claimant,                  David          Dale,            was       injured

during           the     course          and scope              of        his     employment.                         We reverse.

          There          are        three       issues          on appeal:

          1.           Did      the      Worker's              Compensation                     Court           err         in     determining

that       David              Dale       was         injured              in      the          course            and         scope             of        his

employment?

          2.       Did        the     Worker's               Compensation                    Court        correctly                 apply           § 39-
71-407(3),               MCA?

          3.           Did      the      Worker's              Compensation                        Court         err         in        failing            to

assess           costs         against          the      appellant?

          David              Dale     (Dale)           was     a long                 haul      trucker               for         Trade          Street

Inc.       As part             of his         employment,                  he left             Missoula,               Montana             on March

20,      1991 and picked                      up a load              of        lumber         at     Townsend,                   Montana            to    be
delivered              by March              25,       1991        in     Mount          Clemens,                Michigan.                  He then
drove       to Billings,                    Montana          where         he stayed                at his            sister's             home for

two      nights          and a day.

          On March              22,      1991,         Dale        drove          to     the       Flying             J Truck            Stop        near

Miles       City,            where      his        brother           had previously                       arranged                to     meet        him.
Dale      left         the      truck         at     the      truck             stop         and rode            into        Miles          City          in

his       brother's                 truck.              It      is        difficult                  to        tell         what          happened

thereafter                   because          neither          Dale             nor     his        brother,                 Lester           "Buddy"

Dale      Jr.          (Buddy),              remember          what             occurred             between                3:30        p.m.         that

afternoon              and 9:30              p.m.      that        evening              when they                were            involved            in        a

single          car      accident.                 The accident                  occurred             approximately                        one mile
                                                                           2
from      the            Flying          J Truck           Stop           on the               only         road      from            Miles       City          to

the      Flying            J Truck               Stop.
          Buddy,                the      driver          of     the        vehicle,                   was cited                  at     the      accident

for      driving             under          the       influence                 and the                claimants's                     blood      alcohol

content             (BAC) was measured                          at        0.14.                Other         facts         will         be presented
as necessary                      in     the      following               portion                of     the        opinion.

          "Our             standard                for        reviewing                    a      decision                  of         the      Workers'

Compensation                     Court         is to determine                       if        there         is     substantial                  evidence
to support                 the         findings          and conclusions                          of        that      court.             Where there

is     substantial                     evidence          to support                 the         Workers'             Compensation                      Court,

this      Court             cannot             overturn             the        decision."                         Garcia          v.     State          Comp.
Mut.      Ins.            Fund          (1992),          253 Mont.                  196,         198,         832 P.2d                 770,      771-772.
When the             question               is     one of           law       or how particular                              findings             of        fact

apply         to     the         law,      our       scope          is    not        so limited                    and we remain                   free         to

reach         our own conclusions.                               Wassberg                  v.    Anaconda              Copper             Co.      (1985),

215 Mont.                 309,         697 P.2d           909.

          Appellant,                     State           Compensation                      Mutual             Insurance                  Fund          (State
Fund)         argues            that       Dale       had deviated                        from        his     employment                     at the         time

of      the         accident               under          consideration.                                Dale          contends                  that         the
Workers'             Compensation                    Court          had substantial                           evidence                 from      which          to

conclude             that          Dale          was injured                  within             the        course          and scope                  of    his

employment.

          In        1987,          the      legislature                   amended                § 39-71-407,                     MCA, to              codify

exceptions                 to      the      general            workers'                   compensation                     rule         that      actions

occurring                when employees                       are        going            to     or     coming             from         work      are        not

within             the      course             and       scope           of      their            employment.                          This       statute


                                                                                3
provides        in pertinent             part:
        Liability  of insurers  - limitations.        (1) Every insurer
        is liable  for the payment of compensation,        in the manner
        and to the extent hereinafter       provided,    to an employee
        of an employer it insures who receives an injury          arising
        out of and in the course of his employment or, in the
        case of his death from such injury,      to his beneficiaries,
        if any.
                i3j An employee who suffers       an injury   or dies while
        traveling     is not covered by this chapter unless:
                (a) (i) the employer furnishesthetransportation           or
        the employee receives reimbursement          from the employer for
        costs of travel,       gas, oil,   or lodging as a part of the
        employee's benefits       or employment agreement;       and
                (ii)  the travel   is necessitated      by and on behalf of
        the employer as an integral           part or condition      of the
        employment; or
                (b) the travel    is required    by the employer as part
        of the employee's job duties.          . . .
Section        39-71-407,          MCA.
        We will        discuss      the 1987 statutory               additions        in our discussion
of Issue        II     below.       However,       our determination                of the controlling
issue        in this     case is discussed                 in Issue        I below        and is    based on
existing         case        law   interpretations             of        the     course       and   scope      of
employment.
                                                      I.
        Did the Workers'                 Compensation         Court        err    in determining            that
claimant        was injured         during       the course         and scope of his employment?
        Axiomatic         to a determination               of workers'           compensation       coverage
is    that     the     injured      worker       be injured          in the       course       and scope of
his    employment.              Section      39-71-407(l),           MCA.        It is well-established
in Montana that              traveling       employees are not covered                    24 hours    a day,
without        limitation,         regardless        of the conduct               or activity       in which
they    are involved.              See, e.g.,        Correa         v.    Rexroat      Tile     (1985),      217

                                                       4
Mont.           126,            703 P.2d                160.           The           employee                must         remain             in       the      course

and scope                  of employment                       while             traveling                   in     order            for        the      injury       to

be compensable.                                 Correa,              703 P.2d                at     163.

           Here,                the         Workers'                 Compensation                        Court             concluded                    that        "the
dispositive                      issue            was      that             the        employee                   was      compensated                      for      the

time,           was         on his               employer's                    business                 in        being             there          and      had      not

deviated               from           the        employer's                    business."                     The Workers'                        Compensation

Court           also            concluded                 that             Dale         was         considered                       to     be        within         the

course           and scope                      of his      employment                       because               he was hauling                        a load       of
lumber           en route                   from        Townsend,                    Montana            to Mount                    Clemens,            Michigan.

Although              the        load            was not             due until                March               25,     1991,            Dale       had picked
the       load         up in               Townsend             on March                    20,     1991.

           State             Fund           contends             that               prior         case            law     does            not       support          the

Workers'                   Compensation                     Court's                    conclusion.                             It         cites          Ogren        v.

Bitterroot                   Motors,               Inc.          (1986),                   222 Mont.                    515,         723        P.2d        944,      as

support              for        its        contention                     that        Dale         was not               within             the       course         and

scope           of     his            employment                when he was                        injured.                     Ouren             declares           the
factors              to         be considered                        in        determining                        whether             a deviation                   from

the       scope            of     employment                    is        substantial                    enough             to        take          an employee

out     of       the        employment                   context:                      (1)        the        amount            of     time          taken          up by
the       deviation;                        (2)     whether                    the      deviation                       increases                 the       risk      of

injury;              (3)        the        extent          of        the         deviation                   in     terms            of     geography;               and

(4)       the        degree                to     which          the           deviation                caused             the            injury.              Oaren,

723 P.2d               at       948.

           In        Oqren,                Erik         Ogren             of        Bitterroot                    Motors             flew          a co-worker

from       Missoula                   to        Great      Falls               in     the         company               plane.              From there,               he


                                                                                       5
proceeded                   to     Sheridan,                  Wyoming              to         pick         up       his       daughter                 from          a
beauty        pageant                   and bring                 her      home to             Missoula.                     Ogren        had trouble

with       the         plane            while          in     Wyoming              and         rented             a car          to      complete              the

journey.                He and his                  daughter               were         killed            in      an automobile                   accident

caused        when Ogren                     fell       asleep             and lost                control             of the           vehicle            while
driving            to        Missoula.                 Oqren,              723 P.2d                at      945-46.

           The Workers'                       Compensation                       Court         concluded                  that          Ogren         was not
within            the        course             and         scope          of     his          employment.                       On appeal,                  this
Court        determined                      that           the     trip          from           Great            Falls          to      Sheridan              was

personal,                   was        not      a minor             deviation                    and       did         not       fall         within           the

exception               to        the        "going          and coming"                     rule.              Oqren,        723 P.2d                at     947.
In     applying                  the     deviation                 factors              to     determine                  that          the     deviation

was substantial,                             we concluded                       that         the        deviation                occurred              over          a

period            of        11 hours                which          was much                  longer             than       a round             trip          from

Missoula               to        Great        Falls,          the       business-related                               portion           of his            trip.
Also,       the         deviation                   spanned             744 miles                as compared                  to        336 miles              for

the      business                 aspect            of the         trip.               "This         is        clearly           a case         where          the
personal                deviation                    completely                    dwarfed                 the           business              purpose."

Ogren,        723 P.2d                   at 949.             As for             the      two remaining                       factors,             the        trip
to Sheridan                      and then           on toward               Missoula                 not        only       increased              the        risk

of      injury,              it        was      the         main        reason            the           deaths            occurred.               We also

cited        with            favor           a quote               from          Calloway                 v.      State          Workmen's                 Comp.

(1980) r 165 W.Va.                            432,          268 S.E.2d                  132,         as follows:
          In the     case      of a major     deviation     from    the    business
          purpose most courts       will   bar compensation      recovery      on the
          theory    that     the deviation      is so substantial         that      the
          employee     must be deemed to have abandoned              any business
          purpose     and consequently        cannot    recover     for    injuries
          received,      even though he has ceased the deviation               and is

                                                                                  6
           returning              to        the     business                 route        or purpose.

Oaren,        723 P.2d             at        948.

           The Workers'                     Compensation                      Court        considered                 the      facts         of    the

present         case         to        be         similar              to      Gordon            v.     H.C.          Smith          Con&.         Co.

(1980),        188 Mont.                    166,      612 P.2d                668.         We do not             agree.              Gordon,          an

electrician                who         lived          in         Butte         but        was         working           near         Lewistown,
maintained            a temporary                    residence                 at the          Brand       T Motel            in Lewistown.

On May 1,            1978,         Gordon           worked              a full           day at the             work        site       which       was

about       24 miles              northeast                 of        Denton,            Montana.              Shortly             after       work,

Gordon        met         some         of     his      coworkers                    at    the         Denton          bar      for      beer       and
pool.         They         left             the      bar         at         approximately                  10:00        p.m.          and      drove
toward         Stanford,                    where           Gordon             customarily                 stayed,              rather            than

returning            to    Lewistown.                       Gordon            was a passenger                      in       a truck          driven
by a co-worker                     who had             his            quarters            in      Stanford.                 A few          minutes

after        leaving          the            Denton              Bar,         the        truck         went       off         the       road       and
Gordon        was killed.

           Gordon's               employment                     contract                provided               for         $22        daily          in

subsistence                pay         when         working                 more         than         54   miles            from       the        home

office.          In       concluding                  that            his     compensation                 for        travel           qualified

the       claimant           for        workers'                 compensation                     coverage,             we reasoned                   as

follows:

           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"           enroute      to or from work,            any
           injury     is within       the exception        and arises      out of and in
           the course       and scope of employment.

Gordon,        612 P.2d                at      671.


                                                                              7
          In        this         case,             although              Dale          received               a subsistence                       allowance

and      was         paid              for         each          mile         he        traveled,                  he       was       not         paid       for

traveling                  to         or      from         work.               He was                 paid         for        the       actual            miles

traveled             durinq                 work.              Unlike          Gordon,                it     was not             an incentive                 to
get    him          to        his          place          of      employment.                         Also         unlike           Gordon,           Dale's

subsistence                     pay was not                    an incentive                     to get            him to work                in     a remote

location.                     We conclude                       that       the         Workers'                Compensation                       Court      was
incorrect                in      holding              that         Gordon              was controlling                          here.

          As for                the        alcohol             consumption,                     we previously                       stated         that      the

alcohol         factor                 alone         does not             establish                   a deviation                   from      the     course
and      scope             of         employment.                        Gordon,                612         P.2d         at      672.              See     also

Steffes         v.          93 Leasing                     Co.         (1978),           177 Mont.                 83,        580 P.2d             450;      and

Parker         v.        Glacier                  Park,         Inc.          (1991),            249 Mont.                225,        815 P.2d             583.
In    Parker,                   we         found          no     deviation                     from         the        course         and          scope      of

employment,                     stating:
          We refuse                    to overrule     thirteen     years of precedent         to hold
          that     an                 employee      who may be under            the   influence      of
          alcohol,                     without     having      abandoned     the    course      of his
          employment,                       is  precluded        from    recovering        under   the
          workers'                    compensation       system.

Parker,         815 P.2d                     at     586.          The claimant                        in     Parker           had not             abandoned
the      course                 and         scope          of      his         employment.                         Although                he      consumed

several             beers,                 he had          done          so while                also         working               on employment-

related         tasks                 after         driving              to     another               work         location.                 He wrecked
his   car       while               driving           back         to the              first          work        location            to      speak        with

another             employee                  about             business-related                             matters.                 There          was      no

evidence              that             the         claimant              was       acting                  outside            the       scope        of      his

employment                 at         that         time.           Parker,               815 P.2d                 at     586.


                                                                                   8
           In     this             case,         however,                    there            is      no         evidence               that          Dale         was

attending                to         employment-related                                  matters.                       In        Courser              v.        Darby

School          Dist.            #l      (1984),           214 Mont.                    13,          16-17,            692 P.2d                417,        419,      we

discussed               a        four-part                 test             to      determine                    if         an     injury             was         work

related:           (1)           whether             the        activity                was undertaken                           at     the      employer's

request,           (2)           whether             the        employer                directly                 or indirectly                       compelled

the     employee's                     attendance                at the             activity,                    (3) whether                   the     employer

controlled                  or        participated                     in         the     activity,                     and       (4)         whether             both
employer               and            employee             mutually                     benefitted                      from          the        employee's

attendance                  at     the        activity.                      Dale's            actions                do not            fit      within            any

of     these       factors.                     For        an injury                    received                 while            traveling,                    there

must       be some                 identifiable                    benefit               to          the      employer.                       Steffes,             580

P.2d       at    453.              We conclude                    that            Dale        was injured                        during          a six-hour

period           when              he      had         temporarily                        abandoned                      the          course               of      his

employment                  and during                    which          he attended                        to        no employment-related

matters.                    During             the         deviation                    from           his            scheduled                 route,             the
continuity                  of Dale's             employment                      here        was severed                        and remained                   so as

he had           not          returned               to     the          point            of         deviation                   from          the         path      of

duty.

          Although                 the     employer               permitted                    its         drivers             to visit              relatives

along       the         route,             there           is      no evidence                        that            visits          such           as Dale's

Miles       City            trip         were        contemplated.                             The          employer's                   policy             manual

states          that          the        equipment                is         to     be routed                 according                   to     a computer

map and            no deviations                           are         allowed                for          off-route                  usage           and         that

equipment              is        not     to     be used                for        any reason                 as a personal                       conveyance

without          prior             authorization.                            Dale's           supervisor                    testified                that         time


                                                                                    9
spent         "goofing              off"          is         considered               "off-duty"                   or      personal                   time         of

the     driver.                Dale         also         testified                that        he considered                          himself                 to    be
"off-duty"               while            he visited                    his      sister.                 Dale        testified                       that,         as

far     as he could                  remember,                    the     sole        purpose              for      the         Miles             City         stop
was to visit                  his     brother.                    During         this         "off-duty"                   time,           he consumed

alcohol          with         his         brother.

             Dales       visit            to      his         brother            was a substantial                                deviation                    from
Dale's           employment.                           We reach                the       conclusion                     that           there              was           a

substantial                deviation                    in     Miles           City      by applying                      the        Ocren            factors
to     the      facts         of     this         case.             The first              Ooren           factor            is       the         amount           of

time         taken       up by the                    deviation.                  Although                the       time          spent              here         was

several          hours             less         than         in     Oqren,            when considered                          with          the          second

factor,             whether               the         deviation                increases                 the        risk          of         injury,               it
becomes             substantial.                        Six        hours         of      drinking                with        a companion                          and

then         having       that            companion                drive         back         six        miles          to the             location                of

the       claimant's                      truck              greatly             increased                  the            risk            of         injury.

Similarly,               the        third             factor,            the      extent            of      the         deviation                    in      terms

of      geography,                   becomes                   accentuated                    here,              although                    it           was           a

relatively               small            deviation                when compared                     with          that         in     Oqren.                  When

considered               in        terms          of     the        activity             claimant                engaged               in,           however,
it,      too,         becomes              substantial.                         The      fourth             factor,                  the          degree           to

which         the       deviation                 caused            the        injury,              is     also           significant                        here.

The       deviation                  was           the            cause          of       the            injury.                     The             Workers'

Compensation                     Court            deemed                the      geographical                       distance                    to        be       of

paramount               importance                 here           as in         Oaren.              However,                other            factors               in

this         case       outweigh                the      significance                    of     geographical                         distance.

                                                                               10
             Applying                the      Ouren          factors                to         this          case,         we conclude                      that

Dale's             injury             occurred               while            he          was           engaged            in      a      substantial

deviation                 from        his      employment.                          We conclude,                     therefore,                     that     the

Workers'             Compensation                      Court      erroneously                           held       that         Dale's         acts         were
within             the     course            and scope               of       his         employment.

             We hold            that         Dale       was not              injured                within          the         course         and scope

of     his         employment.

                                                                              II.
             Did     the         Workers'              Compensation                       Court            correctly              apply             5 39-71-
407(3),             MCA?
             Sections                39-71-407(2)-(4),                         MCA, were                   added          by the          legislature

in     1987.             Section            39-71-407(l),                     MCA, remained                        intact.               Section            1-2-

101,         MCA, requires                    the      courts           to construe                       the      several             provisions              of

a statute                 to     give        effect          to       all,          if        possible.

             There         is     no evidence                  that          the         legislature                  intended                to     provide

that         employees                would           be covered                    under               5 39-71-407(3)                   even          though

they         did     not        meet        the       § 407(l)               requirement                    that      the        injury             arise      in

the          course             of         employment.                        Nor             is         there        evidence                 that          the

legislature                     intended              that     traveling                      employees              be covered                     24 hours

a day,            no matter                what       they      are          doing,            how they              are        doing         it,      or how

far      removed                the        activity            engaged                   in        by     the      employee              is         from     the

employer's                 business               purpose.
             In     applying                5 39-71-407(3),                          MCA, to                the      present              action,            the

Workers'                 Compensation                  Court          judge              concluded                that:

                     It is undisputed        in this  case that the claimant         was
             driving       his employer's      truck when he went to Miles        City,
             thus        he     fits      within     section     39-71-407(a)(i).
             Additionally,         the payment of "subsistence8V     money clearly

                                                                               11
         encompasses meals and lodging expenses.             A worker cannot
         reasonably    be expected to eat and sleep in his truck.
         Whether claimant     was in Miles City to eat or not is
         unknown but what is known is that he was in Miles City,
         enroute to Michigan and clearly            was there as a part of
         his job.     It is also undisputed          that driving      was, not
         only a necessary,    integral    part of the job, but was the
         job itself,     thus claimant      satisfies      (a)(ii)     and (b).
         Since it is also undisputed        that he was not injured         as a
         result   of his use of alcohol          subsection        (4) does not
         apply.     (Emphasis in original.)
         Section          407(3)(a)(i),               MCA, states           that     workers         are covered           by
employers           if        the      employer         furnishes           the      transportation              or     the
employee receives                    reimbursement              from the employer              for     travel      costs
as part         of the benefits                     of an employee            agreement.             Dale was paid
twenty      one cents               per mile          driven,        with    six     cents     as "subsistence"

pay.      Transportation                     was provided            for    Dale by the employer                  and he
received         subsistence                 pay for     meals,        lodging       and other         travel      costs
as part         of his employment.                     There is substantial                  evidence      that        Dale
falls     within          § 39-71-407(3)(a)(i),                       MCA.
         Dale      contends             that        he also      qualifies           under       5 407(3)(a)(ii)
because         travel         is      not     only     necessitated              by and on behalf                of    the
employer,         and is not just                   integral         to the employment,               but it      &     the
employment           itself.            He makes a similar                  argument         under     5 407(3)(b).
Under both          §§ 407(a)(ii)                and (b),        reference          is made to "the              travel"
not     N'travel"         in general.                 These sections               refer     to travel          that       is
necessitated              by and on behalf                  of the employer                or required            by the
employer         in order             to carry         out the job.               The travel         to Miles          City
was necessitated                    by and on behalf             of the employer;                the side trip             to
Miles      City          to    visit          the     brother         was not.             The    fact      that        the
employer         allowed            visits      to family            members along           the route          does not

                                                                12
transform              such       visits              to        travel           contemplated                       by      § 407(3).                 We

conclude           that          5 39-71-407(3)                          does          not          require              a change            in      the

conclusion              reached            above           in     Issue          I.

          Our conclusion                      is     not        without              consideration                   of     the        employee's

needs      when         travel           is         the      nature             of     the         job.           Indeed,            no one          can

argue       that          certain              stops            along            the         way          are      not       essential               for

eating,           sleeping              and          taking             breaks.                    These           stops           benefit           the

employer           as well              as the             employee.                    It     is         only      when         the     employee
substantially                  deviates               from       the       employer's                 business              that        he is        not

covered          for      injuries                 arising         during              the      time            which       can        reasonably
be considered                   as the             abandonment                  of     the      course             of     the      employment.

We conclude               the      Workers'                  Compensation                     Court          was         incorrect           in      its

application               of     § 39-71-407(3),                          MCA.

                                                                         III.

          Finally,              Dale          argues             that           the      Workers'                 Compensation                    Court

should        have        assessed                 costs         against               State         Fund          under         5 39-71-611,
MCA.       However,              Dale         did      not       cross-appeal                      this          issue      and therefore,

this      Court        will       not      address               the      issue.              "[T]he             respondent             must       file

a      cross-appeal                 when             seeking              review              of          issues           not         raised             by

appellant."                   Baldwinv.               Orient            Express              Restaurant                  (1990),        242 Mont.

373,      377,         791 P.2d            49,        51.

          Reversed.




We Concur:




                                                                           13
Justices




           14
I respectfully                       dissent.

           The         first         issue              is      whether                 the           Workers'              Compensation                         Court

erred       in        determining                   that            David            Dale         was injured                      in     the          scope           and

course           of      employment.                          The          appellate                   scope          of      review              is       whether

there            is       substantial                         evidence                  to             support              the           findings                     and

conclusions                    of    the      Workers'                     Compensation                       Court.               This         is        the      same

scope       of        review         of       a jury            verdict.                  We have                  not     adopted              the        broader

clearly           erroneous                scope              of      review             in       workers'                 compensation                       cases.
The clearly                    erroneous                 scope             of      review               is     in        essence           the            standard

the     Court           by its            decision                   is        applying                here.
           The        critical                question                    is     whether                the         claimant,                an over                   the

road       truck          driver,             in        leaving                the      rig        and the                truckstop,                   and going

into       Miles         City        proper              and returning,                           made a substantial                                   deviation
from       his          employment.                            The          action               of          the      claimant               here                was         a
deviation.                     The ultimate                         fact         question                to        be answered                    by a trial

court       is        whether,             under              the         facts,          it      was substantial.                                The burden

of proof              of a substantial                          deviation                   is        on the             employer.                   Steffes            v.
93 Leasing                Co.,         Inc.             (1978),                177 Mont.                83,         89,      580 P.2d                  450,        454.

           First,              claimant                 did         not         leave            his         route,          which           was           between

Townsend,                Montana              and             Mt.          Clemens,                   Michigan              on          Interstate                     94.
Miles       City,              Montana             is        on the              route.                The         stop       in        Miles             City         was

both       personal                 and business.                              The      employer                   was      only          interested                    in

having        the        load        delivered                     by a certain                       date.              The driver                  is     free        to

relax       within              such       time          period.                 There           was no company                          policy            against

visiting              relatives.                   Claimant                    was on his                route            and therefore                      within

the     employer's                  policies.                       Eating,             sleeping,                   resting              and relaxation

                                                                                   15
would          be     a proper                  dual            purpose              errand            for         a traveling                  trucker.

Claimant's                use        of       alcohol             was not               the         cause          of    injury.               The above

facts         are     substantial                         evidence            for        the        Workers'             Compensation                    Court

to     determine               the        deviation                    to     Miles           City         with         his      brother         was not

such      a substantial                        deviation                    so as to            sever         his         employment.                There

is     also         other       substantial                       evidence                to        prove          the        contrary.

          The Court,                     in     its        majority                opinion,                tries         to      distinguish               the
case      of Gordon                 v.        H.C.         Smith            Const.            Co.     (1980),             188 Mont.             166,       612
P.2d      668.            The differences                          pointed               out        are      splitting                 hairs     without

any meaningful                       distinction.
          The Court                 also        has discussed                        the       four         factors             to be considered

as set          out       in        Ogren            v.        Bitterroot                Motors,              Inc.            (1986) t 222 Mont.
515,      522,         723 P.2d                944,            948.          The claimant                    does         well         as to      (1)      and

(3),      but         not       as        well             as     to         (2)        and         (4).           There          is      substantial
evidence             to     support               the           fact         finder            what         ever         way      it      decides          and

this      Court           should               not         substitute                   its     judgment                 as to          the     ultimate

fact      of        whether              there            is     a substantial                       deviation                 from       employment.
          I     also        would              affirm             the         Workers'                Compensation                     Court        in     its

construction                   of        5 39-71-407(3),                           MCA.




Justice             William              E. Hunt,                Sr.,




                                                                                   16
                                          April 1, 1993

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Laurence Hubbard, Legal Counsel
State Compensation Mutual Ins. Fund
5 So. Last Chance Gulch
Helena, MT 59604-4759

Thomas C. Bulman
Attorney at Law
P.O. Box 8202
Missoula, MT 59802-8202

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
