also dissenting:
The tragic event involved in this case has caused some reluctance on my part to write a dissent and especially to write in the manner which I propose. However, the opinion adopted by the majority compels me to speak out and to do so rather forthrightly. It is difficult to remain silent while my colleagues eliminate from this case the requirement of our Workmen’s Compensation Act that, to be compensable, one’s injury must arise out of and in the course of one’s employment.
I am sure that anyone who studied criminal law under the late Dean Albert J. Harno at the University of Illinois recalls, as I do, the following bit of learning. This trivia must certainly be the theme or text of the majority opinion.
“ ‘Not drunk is he who from the floor, can rise again and drink once more; But drunk is he who prostrate lies, and can neither drink nor rise.’ ” A. Harno, Cases and Materials on Criminal Law and Procedure 194 n.la (3d ed. 1950); Rogers, Drunk, 35 Law Notes 112, 113 (1931).
See also 1A A. Larson, Workmen’s Compensation sec. 34.10, at 6-62 (1979).
The majority opinion, with its recitation of accepted holdings concerning traveling employees and concluding that Stutz was in the course of his employment because it “was certainly reasonable, foreseeable and incidental to his employment for Stutz to return to his motel for the night via a highway” (79 Ill. 2d at 555) must have been written with tongue in cheek. It certainly was not reasonable or foreseeable (at least reasonably foreseeable) to conclude that he would be driving someone else’s car in a highly intoxicated condition and would run into the rear of a maintenance vehicle with its warning devices in operation.
The record discloses that the employee was drunk! Regardless of how the opinion tries to rationalize his conduct or gloss over this fact, he was so intoxicated he came close to qualifying within the definition quoted above. The evidence shows that he was drinking in the same lounge at least from 5 p.m. until 11 or 11:30 p.m. When he and his companion were leaving the lounge, they were talking in loud voices and were described as “whooping it up.” A witness who observed Stutz and his companion as they were leaving the lounge, and just minutes before the fatal accident, stated that they appeared to have been drinking. The witness saw the two of them leaning against the front of the building, and as they attempted to walk away from the building to their vehicle, they were so unsteady they were holding on to each other. Stutz undertook to drive his companion’s vehicle, and the companion, for some reason, got into the rear seat of the vehicle, or at least he was found in the rear seat following the collision. A short distance after leaving the lounge parking lot, Stutz drove the automobile into the rear of a highway maintenance vehicle, a dump truck. This vehicle was not blocking the highway. It was proceeding in a southerly direction, as was Stutz. There were multiple lanes for traffic in each direction. The maintenance vehicle was driving south in the inner lane next to the median. All of its lights were in operation, including a revolving yellow light on the top of the truck which a witness estimated to have been about 8 feet above the ground. There was a large orange sign on the rear of the truck, and the witness who had left the lounge parking lot just ahead of Stutz testified that, when he passed the truck, it had a large lighted yellow arrow mounted on it directing cars to pass on the right. The witness could not remember whether or not the arrow was flashing, but he did state that it was lighted and it was between 3 and 6 feet in size. The car Stutz was driving left no skid "marks on the pavement, indicating that the brakes had not been applied prior to impact. The employee’s blood alcohol content was 186 milligrams or .186% of alcohol by weight. The Illinois Vehicle Code provides that a blood analysis of .05% to .10% may be considered as evidence, along with other competent evidence, in determining whether a person was under the influence of intoxicating liquor. But if there was, at the time of the analysis, .10% or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor. (Ill. Rev. Stat. 1975, ch. 95½, pars. 11 — 501(c)(2), (3).) In this case, the analysis showed that the employee’s blood contained substantially more than is required to raise the presumption of intoxication.
Admittedly, intoxication alone does not necessarily constitute a departure from employment sufficient to preclude recovery under the Workmen’s Compensation Act. However, voluntary intoxication which renders an employee incapable of performing his work is a departure from the course of employment. (See 1A A. Larson, Workmen’s Compensation sec. 34.00 (1979).) And when the employee is injured in that condition, his injury does not arise out of his employment. M & M Parking Co. v. Industrial Com. (1973), 55 Ill. 2d 252, 256.
In our case the only conceivable act pertaining to the employee’s employment which he was performing at the time of the accident was the act of returning to his motel. This could be considered as being in the course of his employment only because of his status as a traveling employee. He did not take a taxi or attempt to acquire any other safe means of transportation. Instead, he undertook to drive his companion’s automobile, an act which his intoxication rendered him totally incapable of performing, and an act which the law prohibited him from performing. There is no evidence that the collision with the rear of this well-lighted truck, with its many warning devices, had any causative origin other than the undisputed intoxicated condition of the employee.
The majority does not find otherwise, but instead states that “[t] he evidence *** is conflicting as to whether Stutz was so intoxicated at the time of his accidental death that he could no longer follow his employment.” (79 Ill. 2d at 558.) The record does not support this statement. The only evidence that could possibly support the conclusion as to conflicting evidence in the majority opinion was a statement by a person who had, himself, been drinking with Stutz from 5 p.m. to 7 p.m., and again from 9 p.m. until about 10 p.m. That person said that when he left Stutz about 10 p.m., he was of the opinion that Stutz had not been drinking “excessively.” That observation was made an hour and a half before the accident, and the witness admitted that he, himself, had consumed “about four or five drinks” during the evening. Whatever Stutz’s condition may have been at 10 p.m. is not evidence of what his condition was after another hour or more of drinking when he drove an automobile into the rear of the plainly marked maintenance vehicle. Anyone who acted as Stutz did at the lounge, whose blood alcohol content was .186%, and who ran into the rear of a plainly marked maintenance vehicle, under the conditions noted above, was plainly too intoxicated to drive an automobile. The accident could be attributed to no other cause.
It is well established that the Workmen’s Compensation Act must be liberally construed to accomplish its purposes and objects. (Pathfinder Co. v. Industrial Com. (1976), 62 Ill. 2d 556, 563.) However, rational boundaries must be defined to establish the limits of compensable recovery. Otherwise this court will not be reviewing workmen’s compensation decisions relating to injuries arising out of and in the course of employment but, instead, will simply be approving the distribution of charitable awards, the making of which, regardless of our sympathies, is not the purpose of the Workmen’s Compensation Act.