dissenting:
I respectfully dissent from the holding of the majority and would affirm the circuit court.
At root, the majority decision is based on the rationale of Hindle and Sjostrom that the employer has expanded the range of employment by providing transportation to be used for the employer’s benefit. The significant difference between those authorities and the instant case is that in those cases the trip was being made to the assigned jobsite on account of the exigencies of the employment and that the employer exercised control over the means of transportation. In the instant case, the accident arose from the decedent’s personal decision as to the place where he would live.
The evidence of benefit to the employer in our case is too slim upon which to predicate an award. The testimony showed that on “rare” occasions the decedent would make calls on behalf of Stevenson, perhaps 10 times in six months.
Respondent did not exercise control over the dealer car furnished to decedent; the car was available to decedent for any purpose and was provided as a “fringe benefit” of his employment. Notably, there was no evidence that decedent was planning to use the dealer car for business purposes in between the time he arrived home from work on December 10, 1980, and his return to work the next morning. It is clear that the mere fact that an accident occurs in a car supplied by the employer does not make resulting injuries compensable where the car was not under the control of the employer and the employee was not directed to make the trip at issue by the employer. (See Gmelich v. Industrial Com. (1980), 81 Ill. 2d 44, 405 N.E.2d 786.) A contrary rule would expand coverage under the Workers’ Compensation Act far beyond its intended scope.
This case presents at most the question of a “dual-purpose trip,” as was involved in Gmelich. The rule regarding such trips was first enunciated by Mr. Chief Justice Cardozo in Marks’ Dependents v. Gray (1929), 251 N.Y. 90, 93-94, 167 N.E. 181, 183, as follows:
“When a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remained undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee’s personal journey.” See also 1 Larson, Workmen’s Compensation sec. 18.20 (1985).
In Gmelich, the court held that the death of a car salesman which occurred while returning from a personal trip in a dealer car was not compensable. The court found that although the salesman had undertaken selling efforts during the trip, such efforts were incidental to the primarily personal nature of the trip.
In the instant case, even assuming that respondent’s business interests were furthered by having decedent keep the dealer car at his home in between working hours, it is obvious that the trip home would have been made in the absence of any business motives, and that the trip was primarily personal. Moreover, the risks associated with decedent’s trip home were not inherent in, or incidental to, his duties as service manager; rather, the hazard was one which is common to the public in general.
One has great sympathy for the survivors and would wish that the tragic accident had not occurred, but the legal fact remains in my opinion that it did not occur in the course of decedent’s employment and therefore was not compensable.