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Howell Tractor & Equipment Co. v. Ind. Com.

OPINION FILED FEBRUARY 1, 1980.

HOWELL TRACTOR & EQUIPMENT COMPANY, APPELLEE

v.

THE INDUSTRIAL COMMISSION ET AL. (JOHN HENRY BAUER, JR., APPELLANT).



Appeal from the Circuit Court of Du Page County, the Hon. John S. Teschner, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 28, 1980.

Claimant filed an application for adjustment of claim under the Workmen's Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.), specifying the loss of his left leg as the basis of his claim. The arbitrator found that the injury did not arise out of and in the course of claimant's employment, and denied compensation. The Industrial Commission reversed, awarding claimant compensation for total temporary disability and for the amputation of the left leg above the knee. The circuit court of Du Page County reversed the Commission, and claimant appealed to this court under Rule 302(a) (73 Ill.2d R. 302(a)).

Respondent, Howell Tractor & Equipment Company, is in the business of selling, renting, and servicing various types of equipment, mostly heavy equipment such as cranes and bulldozers. Claimant, John Henry Bauer, Jr., had been employed by respondent as a field mechanic for four or five years as of the date of the accident in question.

On July 22, 1975, Bauer and George Hoefle, a co-worker, were told by their superiors that a road resurfacing machine had broken down in Logansport, Indiana, on a job site of Orr International, owner of the machine. The machine had been sold by Howell to Orr. The parts to repair the machine were being flown to O'Hare Field in Chicago. Bauer and Hoefle were to pick up the parts at the airport and go to Logansport to repair the machine. Bauer testified later that his usual routine frequently required him to work at locations other than Howell's shop. A company truck was assigned to him permanently in which he carried his own tools and whatever special equipment he needed for the particular job.

In the morning of the next day, July 23, Hoefle and Bauer loaded the truck assigned to Bauer with the special equipment which they would need for the job. They went to O'Hare Field, picked up the parts shipment, and proceeded to Logansport. When they arrived in Logansport, at approximately 3:30 p.m., they located the disabled machine on Orr International's job site, and they there talked to Jerry Purdom, Orr's foreman. Purdom was very anxious to have the machine in operation the next morning. Hoefle and Bauer disassembled the machine and found a broken shear pin. After the pin was replaced, the machine was operating but overheating. They also discovered a piece missing inside the motor, and Bauer was afraid that this would cause the machine to continue to overheat. He felt that a new motor would be necessary.

Purdom and Hoefle then telephoned the manufacturer of the machine, and it suggested that they reassemble the machine and try to operate it. If that did not work, the manufacturer would arrange for the delivery of a new motor via Indianapolis. In that event, Hoefle and Bauer again would be required to disassemble the machine and install the new motor.

At about 6:30 p.m., Purdom and Hoefle returned to the machine, where Bauer was working, and related their plan to him. Bauer told Purdom that they would have to get permission from their superiors at Howell to remain overnight at Logansport. Purdom and Bauer then telephoned Howell's field-service manager. Bauer explained the situation, Purdom told the manager that he wanted Hoefle and Bauer to stay in Logansport, and the manager approved.

Purdom, Hoefle and Bauer then went to the Ben Hur Motel in Logansport, where Purdom had been staying. Hoefle and Bauer, too, secured rooms at the motel. After washing up, Hoefle and Bauer ate dinner with Purdom at the motel. According to Bauer's testimony, Purdom suggested at dinner that they go out for a couple of drinks and discuss the problems of the machine. Following dinner, claimant testified, they watched TV, then showered, borrowed clothes from Purdom, changed into them and left the motel, apparently shortly after 10 p.m., in Purdom's truck. The three men went to a bar where they had two or three drinks each and talked about the machine, football, and various other topics. At about 11:30 or 11:45 p.m., Purdom took them to another bar in Logansport, where they remained, again talking about the machine and other topics, until closing time, about 1:30 or 1:45 in the morning of July 24. As the tavern was closing, Purdom and Hoefle decided to go to breakfast and suggested Bauer join them. Bauer, however, wanted to go back to the motel. Bauer went to the bathroom, and, when he returned to the table, Purdom and Hoefle were gone. The latter testified that they waited some 10 or 15 minutes in the truck for claimant, and then drove around the block and returned to the tavern, leaving when claimant was not visible.

Although he had never been in Logansport before, claimant decided to walk back to the motel. He thought that he knew where he was and that he would recognize the motel. He did not inquire about taxi service, which was available, or ask anyone for directions to the motel. Bauer, Purdom and Hoefle had driven about 10 minutes from the motel to reach the first bar and another 10 minutes from the first bar to reach the second one. Subsequent testimony revealed that the distance from the second bar to the motel was about three miles. After walking for a few blocks, claimant realized that he was lost, and he came upon what was apparently an abandoned railroad station. He thought he remembered crossing some railroad tracks on the way from the motel, so he walked over to the station to see if someone were there. If not, he thought that he might be able to follow the tracks back to the motel. Bauer found no one in the station, and he started walking alongside the tracks in the direction he thought the motel was located. He testified that a train started to pass him, that some part of the train made contact with him, and that it dragged him along backwards. He held onto a "bar or handle or something" as long as he could with his left arm but finally had to let go. He apparently fell onto the tracks, and the train ran over his left leg. He dragged himself away from the tracks and put his belt around his leg as a tourniquet. He lay there, yelling for help, until a police officer, John Leigh Adair, arrived. Adair, with job-related experience with intoxicated individuals, later testified that in his opinion Bauer was not intoxicated. He stated that Bauer was coherent and handled himself well under the circumstances. In response to a question by the arbitrator, claimant denied that he had attempted to hitch a ride on the train.

Claimant testified that he had been out of town to repair equipment for Howell more than 25 times during his employment by that company. When he went out of town, the company either advanced money for his expenses or reimbursed him. Claimant also testified that the company never gave him instructions or placed restrictions on him concerning his conduct after he left a job site on out-of-town business trips. On a number of previous occasions when the company sent him out of town, claimant went out with customers after work for a few drinks. On one such occasion, claimant sold a customer a piece of equipment, and the company paid claimant a bonus for the sale. Claimant's co-worker, Hoefle, confirmed the lack of restrictions on after-work activities while out of town on business. Hoefle did admit, however, on cross-examination, that he and claimant were paid on an hourly basis and were not actually being paid during the time that they spent socializing in Logansport.

Since claimant was a traveling employee, it is not disputed that his injury was sustained in the course of his employment. Howell, however, urges that the injury did not arise out of claimant's employment. An injury sustained by an employee arises out of his employment if the employee at the time of the occurrence was performing acts he was instructed to perform by his employer, acts which he has a common law or statutory duty to perform while performing duties for his employer, or acts which the employee might be reasonably expected to perform incident to his assigned duties. David Wexler & Co. v. Industrial Com. (1972), 52 Ill.2d 506, 510; U.S. Industries v. Industrial Com. (1968), 40 Ill.2d 469, 473; Ace Pest Control, Inc. v. Industrial Com. (1965), 32 Ill.2d 386, 388.

Injuries to employees whose duties require them to travel away from home are not governed by the rules applicable to other employees. Under the standard enunciated in Ace Pest Control, set forth above, an injury is compensable if the conduct which gave rise to the injury is reasonable and might normally be anticipated or foreseen by the employer. (Wright v. Industrial Com. (1975), 62 Ill.2d 65, 70; David Wexler & Co. v. Industrial Com. (1972), 52 Ill.2d 506, 510; U.S. Industries v. Industrial Com. (1968), 40 Ill.2d 469, 475.) Compensation has therefore been allowed for injuries sustained by traveling employees outside the course of a normal business day and while the employee was not performing duties owed his employer. (Wright, Wexler.) Both Wright and ...


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