                                No. 86-321
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1987



RONALD S. HETLAND,
                 Claimant and Appellant,
         -vs-
MAGNUM PETROLEUM, Employer,
         and
STATE COMPENSATION INSURANCE FUND,
                 Defendant and Respondent.



APPEAL FROM:     The Workers' Compensation Court, The Honorable
                 Timothy Reardon, Judge presiding.

COUNSEL OF RECORD:
         For Appellant:
                 John L. McKeon, Anaconda, Montana
         For Respondent:
                 Allen B. Chronister, Assistant Attorney General,
                 Agency Legal Services, Helena, Montana



                                    Submitted on Briefs: Nov. 13, 1986
                                     Decided:       February 23, 1987

Filed:

                                                8
                           z2zL *
                                Clerk
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Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

      Ronald S. Hetland appeals a Workers' Compensation Court
ruling that Hetland was not acting within the course and
scope of    his   employment    at    the    time of his        automobile
accident    and   therefore    was     not    eligible    for    workers'
compensation benefits.      The issue on appeal is whether there
is substantial evidence to support the Workers' Compensation
Court's ruling.    We affirm.
      In January 1982, Hetland was hired by Magnum Petroleum
as a convenience store clerk in Anaconda, Montana.              The store
manager instructed Hetland that his duties included cleaning
the store, stocking shelves, logging the gasoline and making
night deposits.       The store clerks took turns working morning
shifts on the weekends.         The clerk working this shift was
responsible for getting the keys and money from the clerk who
closed the store the previous night.              The manager left the
details of the transfer to the clerks involved; the morning
clerk could come to the store at closing time (10:OO p.m.) to
retrieve the keys and money from the night clerk or the night
clerk could bring the keys and money to the morning clerk's
home after closing the         store, or to the store the next
morning.      The clerks were not given any compensation for
undertaking    this     transfer     and    the   store   furnished    no
vehicles.
        Hetland was scheduled to work a morning weekend shift
on January 16, 1983.             Hetland stopped by the store the night
before to tell the clerk of his out-of-town entertainment
plans for the evening, and that he would return to pick up
the keys and money at 10:OO                p.m., which was closing time.
Hetland and his wife then departed for a nightclub in Rocker,
Montana,      a    town       approximately   twenty-five miles       east of
Anaconda, where they met Hetland's mother-in-law.                 As closing
time    for       the     store      approached,   Hetland    borrowed      his
mother-in-law's new car, drove back to Anaconda, picked up
the    keys and money            at the     store and     took them to his
apartment         located      ten   to   twelve blocks    from the    store.
Hetland then drove to Fairmont Hot Springs since his wife and
mother-in-law had             indicated that they might move to that
location.         Hetland did not find his wife or mother-in-law at
Fairmont      and       was    returning    to   Rocker   when   he   had    an
automobile accident at the Gregson interchange on Interstate
90.
        Hetland testified that he                felt the keys and money
pickup was part of the job but further testified that once
the keys and money had been accounted for, he was back on his
own personal time.             The Workers' Compensation Court held that
at the time of the accident, Hetland was not acting within
the course and scope of his employment and therefore was not
eligible for workers' compensation benefits.
      The applicable standard       for determining whether    an
employee is entitled to workers' compensation benefits is
stated in 5 39-71-407, MCA:
            Every insurer is liable for the payment
            of compensation   ...  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.
      "Our function in reviewing a decision of the Workers'
Compensation   Court   is   to   determine   whether   there   is
substantial evidence to support the findings and conclusions
of that court."   Steffes v. 93 Leasing Co., Inc. (1978), 177
Mont. 83, 86, 580 P.2d 450, 452-53.      Hetland argues that at
the time of his automobile accident he was on the last leg of
a "special assignment" or "special errand" on behalf of the
employer.
     The Steffes case, 580 P.2d at 453, addresses the going
and coming rule, and its exceptions:
            Generally, an injury sustained in going
            to or coming from work does not arise out
            of and in the course of employment within
            the meaning of the Workers' Compensation
            Act.    Hagerman v. Galen State Hospital
             (1977), Mont., 5 n P.2d 893, 34 St.Rep.
            1150.    However in Hagerman this Court
            recognized two exceptions to the rule:
            (1) where employee travel pay was covered
            under the employment contract, and (2)
            where the travel was for the special
            benefit of the employer.
      The     second exception stated above is the basis of
Hetland's argument and was recently discussed by this Court:
"[tlhis exception applies where an employee is required to
travel away from home on his employer's business."    Correa v.
Rexroat Tile     (Mont. 1985), 703 P.2d   160, 163, 42 St.Rep.
1075, 1078.
      We    agree with the Workers' Compensation Court that
Hetland was not acting within the course and scope of his
employment at the time of the accident and therefore is not
eligible for compensation benefits.       Three reasons support
our conclusion.        First, Hetland testified at least three
times that after the keys and money were secured from the
night clerk, he was free to resume his activities for the
evening.    Hetland based his understanding in part on what the
'manager had told him.       Therefore when the keys and money
arrived at Hetland's apartment, Hetland's subsequent actions
no   longer   served   any   business purpose of his employer.
Second, the employer was not exerting a right of control over
Hetland at the time of his accident.       The right to control
may exist if the employee is acting for the benefit of the
employer.     Courser v. Darby School Dist. No. 1 (Mont. 1984) ,
692 P.2d    417, 420, 41 St.Rep. 2283, 2287.    The clerks were
responsible for carrying out the transfer.     Hetland chose to
drive back from Rocker that evening instead of requesting the
night clerk to bring the keys and money to the store the next
morning.     The travel Hetland undertook, save for the ten to
twelve block ride from the store to his apartment with the
keys and money, cannot be said to have been for the special
benefit of the employer under Steffes.
       Third, public policy precludes a finding of injury
within the course and scope of employment in this case.             The
employer is not an insurer of his employees at all times
during     the   period   of    employment,   Griffin   v.    Industrial
Accident Fund (1940), 111 Mont. 110, 117, 106 P.2d 346, 348,
but   only   during   the      time the employees are        discharging
business responsibilities on his behalf.
      As the Griffin Court noted:
             [Claimant's] employment did not require
             him to be at the place where he sustained
             the injuries.    Those injuries did not
             arise out of and in the course of his
             employment.   To hold that claimant is
             entitled to compensation here we would be
             obliged to say that the employer was an
             insurer against accident for the full
             twenty-four hours of a day, no matter
             what the employee may have been doing
             during the     ...hours when his regular
             services were at an end.
      Accordingly, we find substantial evidence to support
the decision of the Workers' Compensation Court.
      Affirmed.
We concur:        ,A




Justices




Mr. Justice William E. Hunt, Sr., dissenting:


     I dissent.
     When employee Hetland left his job after completion of
his regular hours, he was still under a duty to perform a
service for his employer. In the performance of that duty,
he suffered severe injuries.   I would reverse the Workers'
Compensation Court.
