dissenting:
I concur in the summary judgment entered in favor of the Sasses in No. 86 — 0532. I respectfully dissent with the decision to reverse the order granting summary judgment to Standard Three in 86 — 0686.
Use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) It is axiomatic that the purpose of summary judgment proceedings is not to try an issue of fact, but to determine whether one exists. (Econo Lease, Inc. v. Noffsinger (1976), 63 Ill. 2d 390, 393; Golden v. Marshall Field & Co. (1985), 134 Ill. App. 3d 100, 101.) Summary judgment should not be reversed absent an abuse of discretion by the trial court such that plaintiff’s right to fundamental justice is violated. Kemp v. Sisters of the Third Order of St. Francis (1986), 143 Ill. App. 3d 360, 362.
The trial court was correct in granting summary judgment to Standard Three because Witmer was clearly not acting within the scope of his employment at the time of the accident, but was on a frolic of his own. The debate over whether taking the test was within the scope of Witmer’s employment unfortunately distracts from facts clearly indicating that Witmer was on a frolic of his own and was, therefore, outside the scope of his employment.
The parties do not dispute that Witmer (1) checked out of the test at 7:50 p.m.; (2) was driving his own vehicle after ordinary working hours; and (3) was legally intoxicated at the time of the accident (10:30 p.m.). Furthermore, there is no dispute regarding the distance between the test site (Rockford) and Witmer’s home (Elgin), nor is there any dispute regarding the reasonable time of travel between those points. Finally, there is no testimony regarding Witmer’s whereabouts between the time he checked out of the test and the time of the accident, and no one knows where he was going or what his intentions were during that period.
Despite these facts clearly supporting the trial court’s order entering summary judgment in favor of Standard Three, the majority states that it “cannot conclude, however, that as a matter of law Witmer had left the scope of his employment.” (159 Ill. App. 3d at 264.) The majority goes on to state that “the jury could draw varying inferences from the evidence presented, one of them being that Witmer was within the scope of his employment from the time he departed for the test to the time of the accident.” 159 Ill. App. 3d at 264.
I believe this decision runs contrary to the facts of this case and similar cases addressing these issues. For example, in Prince v. Atchison, Topeka & Sante Fe Ry. Co. (1979), 76 Ill. App. 3d 898, 903, the court ruled, as a matter of law, that the employees there were on a frolic prior to their involvement in an accident. In that case, an employee, McCasky, drove his own vehicle from Morton to a jobsite in Pekin with instructions to return to Morton at 4 p.m. (76 Ill. App. 3d 898, 901-02.) McCasky and a co-worker began drinking on the jobsite and left that site in an intoxicated condition at around 12 p.m. (76 Ill. App. 3d 898, 902.) They were not seen again until approximately 2:30 p.m., when they turned up at a bar approximately 16 miles from the jobsite. (76 Ill. App. 3d 898, 902.) Approximately one-half hour later, they were involved in an accident resulting in the death of another motorist. (76 Ill. App. 3d 898, 902.) Before reaching the issue of whether McCasky was in the scope of his employment at the time of the accident, the court stated that “[tjhere is no question that at 2:30 on the afternoon of November 12, McCasky and Payton were on a frolic and consequently were outside the scope of their employment.” 76 Ill. App. 3d 898, 903.
Curiously, although noting that “[t]he Prince court determined, as a matter of law, that the employees there were on a frolic before their accident,” the majority distinguishes that case from the instant action merely by stating that in the instant case, “it is not clear that Witmer was ever was on a frolic, so whether he was within the scope of his employment at the time of the accident remains a genuine issue of material fact which precludes entry of summary judgment in favor of Standard Three.” (159 Ill. App. 3d at 264-65.) However, just as Mc-Casky left his jobsite and turned up at a tavern some 16 miles away (76 Ill. App. 3d 898, 902), Witmer left the test, and, rather than proceeding home, disappeared for one hour and 40 minutes, before turning up at the accident scene intoxicated. With respect to the employee’s conduct prior to the accident, these cases are indistinguishable.
Furthermore, there is no evidence of Witmer’s reentering the scope of employment. In Prince, testimony was introduced that at 2:45 p.m., McCasky’s co-worker stated that they should be leaving because “they had a rider to pick up in Morton in fifteen minutes,” and “they were going to Morton.” (76 Ill. App. 3d 898, 902.) The court held that McCasky’s destination could not reasonably be inferred from the co-worker’s statements. (76 Ill. App. 3d 898, 904.) Noting that one of the elements in determining whether an employee has reentered the scope of employment is whether he formulated the intent to act in furtherance of the employer’s business, the Prince court stated that “[bjecause there is no concrete evidence as to McCasky’s intention, the first part of the reentry test is not met, and consequently we hold that McCasky had not reentered his employment at the time of the accident.” 76 Ill. App. 3d 898, 905.
Just as the statements by McCasky’s co-worker regarding their destination were not “concrete” enough to establish intent in Prince, the instant action presents an even stronger case for failure to reenter the scope of employment after a frolic since the only evidence of Witmer’s intent is that he was traveling in the general direction of Elgin. Sending this matter to a jury will only allow them to guess or speculate as to the last one hour and 40 minutes of Witmer’s travel. If the conclusion is drawn that Witmer’s intention was to return to Elgin and resume his employer’s business (the next day), it would be based on mere conjecture, guess, and speculation. This is not permitted. D’Olier v. General Motors Corp. (1986), 145 Ill. App. 3d 543, 548.
In the instant action, although the record discloses a factual dispute regarding whether the test itself was within the scope of employment, it nonetheless clearly supports the conclusion that Witmer was on a frolic at the time of the accident.
Accordingly, I submit that granting summary judgment was appropriate in this case and would affirm the trial court.