Appeal from the Circuit Court of Cook County, the Hon. Arthur
L. Dunne, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 29, 1980.
The claimant, Maria A. Stutz, is the widow of Adolph Stutz, the assistant general chairman of District 141, International Association of Machinists and Aerospace Workers (District 141). Adolph Stutz suffered fatal injuries in an automobile accident on the night of May 6, 1976. His widow filed a claim for death benefits with the California Workers' Compensation Appeals Board on May 19, 1976. This claim was dismissed without prejudice, subject to reinstatement. On July 8, 1976, the claimant filed an application for adjustment of claim under the Illinois Workmen's Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.). The arbitrator denied compensation. On review, the Industrial Commission reversed and awarded compensation to the claimant. The circuit court of Cook County confirmed the Commission's decision. District 141 appeals directly to this court under Rule 302(a). 73 Ill.2d R. 302(a).
It was stipulated by the parties that at the time of his death on May 6, 1976, Adolph Stutz held the elective office of assistant general chairman of District 141. Further, it was stipulated that the office of District 141 was located in Burlingame, California. Stutz had an office there and his work was localized there. Stutz was sent to Chicago by the general chairman of District 141 to perform three tasks: to participate in a "Fourth Step Grievance Hearing" against United Airlines on behalf of a union member: to attend class and craft hearings at the request of an official of the International Association; and, to begin to negotiate an agreement with United Airlines on behalf of certain communication workers. Stutz' attendance at the class and craft hearings would primarily benefit the International. His participation in the grievance hearing and the negotiations with United Airlines were both tasks to be performed for the benefit of District 141. The negotiations were to begin on May 7, 1976, the day after the fatal accident occurred.
On May 6, 1976, at about 5 p.m., Stutz met with Alfred Carmona, a Local 1487 official; Elton Barstead, an International official; and James Highsaw, an attorney for the International. Earlier that day Stutz had attended the grievance hearing and the class and craft hearings. The meeting was requested by Barstead to discuss the class and craft hearings. The meeting took place in a restaurant and lounge which was adjacent to the hotel where Barstead and Highsaw were staying. Other union business was also discussed at this time.
The uncontradicted testimony of both Barstead and Carmona was that Stutz was drinking alcoholic beverages during these meetings, as were the other persons. Carmona also testified that he could not remember what happened from 6:30 p.m. onward until he woke up the next morning in the hospital.
Barstead testified that he had seen Stutz in Chicago on union business on 20 or 30 occasions. He also testified that he and Highsaw left Stutz and Carmona in the bar at 7 p.m. When Barstead returned at 9 p.m., Stutz and Carmona were still there. Barstead stated he discussed some additional union business before leaving Stutz and Carmona at 10:15 p.m. Barton Kendall, a United Airlines employee who was acquainted with Carmona, testified at the arbitration hearing that he observed Carmona and a man he later learned was Stutz, leaving the bar at 11 p.m. Kendall stated they looked as though they had been "whooping," and "living it up." Stutz and Carmona got into Carmona's car, with Stutz driving. They left the parking lot, ascended an inclined overpass and, as they crested the overpass, struck a Department of Highways truck which was proceeding in the far left lane at 2 to 3 miles per hour. The truck had a flashing yellow light and a large arrow attached to the rear of the truck pointing to the right. Stutz was pronounced dead on arrival at the hospital. Carmona suffered only minor injuries.
The first issue we consider is whether the Commission possessed subject matter jurisdiction to hear this matter. District 141 contends that when the claimant filed her claim in California, she elected her remedy and may not pursue relief in Illinois. The applicable Illinois statutory provision states:
"An employee or his dependents under this Act who shall have a cause of action by reason of any injury, disablement or death arising out of and in the course of his employment may elect to pursue his remedy in the State where injured or disabled, or in the State where the contract of hire is made, or in the State where the employment is principally localized." (Ill. Rev. Stat. 1975, ch. 48, par. 138.1(b)(2).)
Clearly the language of the Act is permissive in allowing the claimant to file a claim in any of the three forums mentioned. Our inquiry becomes whether a claimant who files a claim where the employment is principally localized, and then dismisses it, elects her remedy and is thereby precluded from filing a claim in another jurisdiction. The prevailing law in Illinois on election of remedies was set forth in Faber, Coe & Gregg, Inc. v. First National Bank (1969), 107 Ill. App.2d 204, 211:
"`The formal doctrine of election of remedies by judicial decision has been confined gradually to its true remedial purpose as a doctrine of substance; and as stated by an eminent authority on trusts and trustees, should be confined to cases "where (1) double compensation of the plaintiff is threatened or (2) the defendant has actually been misled by the plaintiff's conduct or (3) res adjudicata can be applied." Bogert, Trusts and Trustees, 1935 Vol. IV, sec. 946.'"
(Accord, Altom v. Hawes (1978), 63 Ill. App.3d 659, 663; Schwartz v. City of Chicago (1974), 21 Ill. App.3d 84, 94.) There is no threat of double compensation on this record; District 141 has not been misled by the claimant's acts; and there has been no decision rendered in the California proceeding which would invoke the doctrine of res judicata. Thus, the claimant has not elected a remedy to the extent required by Illinois law so as to prevent the Commission from exercising jurisdiction over her claim.
District 141 next contends that the claimant is not entitled to receive an award because Adoph Stutz was an elected union official and not an employee of the union. It is argued by District 141 that the "dual capacity doctrine" (B.W. Sales Co. v. Industrial Com. (1966), 35 Ill.2d 418, 420) should apply to prevent the payment of compensation because Stutz was an elected officer of the union engaged in official duties and not an employee. This court adopted the dual-capacity doctrine in Stevens v. Industrial Com. (1931), 346 Ill. 495. There a printer who was also the secretary-treasurer and a 48% shareholder of a corporation was killed when struck by an automobile while returning from collecting a business debt. The court held that if one is acting in his official capacity as an executive manager of a company and is not doing the work of an employee, he is not covered under the Workmen's Compensation Act. (Stevens v. Industrial Com. (1931), 346 Ill. 495, 500.) The claimant-widow in Stevens was ...