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07/21/89 Bradley Printing Company, v. the Industrial Commission

July 21, 1989

BRADLEY PRINTING COMPANY, APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (BETTY DUNN, WIFE OF JAMES O. DUNN, DECEASED, APPELLEE)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT, INDUSTRIAL COMMISSION DIVISION

543 N.E.2d 116, 187 Ill. App. 3d 98, 134 Ill. Dec. 833 1989.IL.1131

Appeal from the Circuit Court of Du Page County; the Hon. S. Bruce Scidmore, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Claimant, Betty Dunn, brought an action under the Workers' Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) seeking to recover death benefits for fatal injuries sustained by her husband, James Dunn. The arbitrator found that Dunn's death arose out of and in the course of his employment with Bradley Printing Company and awarded benefits in the amount of $456.33 per week to be paid to claimant on her behalf and on behalf of minor children until the sum of $250,000 has been paid or until the period of 20 years has passed, whichever is greater. The arbitrator additionally awarded $1,750 for burial expenses. The arbitrator's findings and award were upheld by the Industrial Commission (Commission), and the circuit court of Du Page County confirmed the decision of the Commission. Bradley appeals, alleging that the Commission's finding that Dunn's death arose out of and in the course of his employment is against the manifest weight of the evidence.

In August 1983, Dunn was employed as a salesman for Bradley. Bradley salesmen are paid on a commission basis. Dunn worked primarily on accounts in the Chicago area, but there were no limitations on his territory. His customer and prospect list included six names outside the Chicago area, two in Indiana, and one each in Michigan, Florida, Arizona and Minnesota. Peter Schon, Dunn's sales manager, testified that Dunn had informed him that he was working on the accounts in Michigan and Indiana.

In July 1983, Dunn advised Schon that he would be vacationing in Three Rivers, Michigan, during the first half of August 1983. Schon testified that Dunn also informed him that he intended to combine work and vacation at that location. Claimant testified that Dunn arrived at Three Rivers on August 6, 1983. For the next 10 days, Dunn traveled between Three Rivers and Chicago twice. When he was in Three Rivers, Dunn made several telephone calls to customers. Claimant testified that during previous years, Dunn had followed a similar practice of commuting between Three Rivers and Chicago and of making business telephone calls when in Three Rivers.

On August 16, 1983, Dunn drove to Chicago from Three Rivers. On the way to Chicago, Dunn took a family friend to O'Hare airport. He then called on a customer in Aurora and finally proceeded to Bradley. Schon testified that he spoke with Dunn that afternoon on the company premises. Dunn advised Schon that he was picking up proofs for a prospective client. Dunn indicated that he wanted to review the proofs personally and hand deliver them to the client.

On August 17, 1983, Dunn attended a scheduled sales meeting at Bradley. Kenneth Vander Wheele, Bradley's vice-president of finance, testified that it was company policy for salesmen to attend scheduled meetings unless excused by Schon or another principal. Vander Wheele stated, however, that attendance records were not kept of these meetings and that he knew of no disciplinary action if a salesperson did not attend a meeting. Schon stated, however, that it was his practice to contact any salesperson who did not attend a sales meeting. He would demand an explanation for the absence and personally would ensure that the person received and understood the information presented at the meeting. Approximately 20 of the 28 salesmen attended the August 17 meeting.

Schon testified that following the sales meeting, Dunn advised him of a successful meeting with a prospective customer on the previous day. Dunn further stated that after leaving the office, he intended to make several customer stops on the return trip to Three Rivers. Later that afternoon, Dunn sustained fatal injuries in an automobile accident which occurred on the Indiana tollroad I-80.

Following Dunn's death, claimant met with Schon and Richard Joutras, the chairman of the board at Bradley. Claimant brought Dunn's work in progress and all other items connected with his business. Claimant testified that Joutras represented to her that Bradley agreed to share the commissions to which Dunn was entitled. She stated that Joutras acknowledged that Dunn was working at the time of the accident and that additional compensation would be provided for the loss. Joutras testified that he recalled the meeting but did not remember stating anything specific with regard to Dunn being within the scope of his employment at the time of his death.

The arbitrator entered an award based on his finding that in light of all the circumstances, the fatal injuries sustained by Dunn arose out of and in the course of his employment with Bradley. The arbitrator's findings were upheld by the Commission and subsequently were confirmed by the circuit court.

Bradley first argues that the Commission incorrectly based its Conclusion on the assumption that Dunn's August 17, 1983, trip from Chicago to Three Rivers had a business purpose. Bradley maintains that at the time the accident occurred, the business ...


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