*1 of the and record of the propriety proportionality of the will sentence not be as as imposed vigorous observant of constitutional as it is principles required to be.

toAs the written of the findings authority, sentencing it is true are not they However, mandated. in statutorily case, this court’s transcript findings this as court with sentencing hearing provides equal to review the of the opportunity validity findings would written findings.

In case, the instant are we no opinion error was prejudicial commited at trial and that the sen- tences the court for the offenses of imposed aggravated are rape The sentence of kidnapping justified. death is vacated, in our pending conclusion resentencing, light that one factor included in aggravating erroneously the court’s decision. In all other sentencing respects of the circuit court of judgment Boone County affirmed. and reversed part

Affirmed vacated; sentence part; cause remanded. (No. 52231.

DISTRICT INTERNATIONAL ASSOCIATION OF WORKERS, & MACHINISTS AEROSPACE Appellant, et al. A. v. THE INDUSTRIAL COMMISSION (Maria Stutz, Appellee).

Opinion April May Rehearing 1980. denied filed *4 UNDERWOOD, RYAN, KLUCZYNSKI, JJ., dissenting. Petersen, Duzer, Gershon, of & Chicago

Van Jordan of and Horace W. Jordan, B. Van Duzer counsel), (John for appellant. Garcione, Inc., of San

Norback, DuRard, Belkin Sc Durard, for Mateo, L. California counsel), (Robert appellee.

MR. CLARK delivered opinion JUSTICE court: claimant, Stutz, Maria widow of A. Adolph 141,

Stutz, chairman of District the assistant general of Machinists Aerospace Association International suffered fatal injuries Stutz Adolph Workers 141). (District 6,1976. His of May accident on the an automobile night the California for benefits with filed a claim death widow 19, on May Board Compensation Workers’ Appeals without subject This claim dismissed prejudice, filed an 1976, the 8, On claimant reinstatement. July under the Illinois for claim adjustment application 1975, Act Rev. Stat. ch. Workmen’s Compensation (Ill. denied compen et arbitrator 138.1 seq.). par. reversed Commission review, Industrial On sation. The circuit to the claimant. awarded compensation the Commission’s of Cook confirmed court County this court under District directly decision. appeals Rule 73 Ill. R. 302(a). 302(a). the time that at

It was by parties stipulated held the elective death May Adolph of District 141. chairman office of assistant general office of District Further, it was that the stipulated had an office California. Stutz was located Burlingame, was sent to and his work was localized there. Stutz there 141 to chairman of District per- Chicago general Griev- in a “Fourth form three tasks: to Step participate on behalf of a union United Airlines ance Hearing” against

549 member: to attend class and craft at the hearings request Association; and, of an official of the International an with United Airlines on begin negotiate agreement behalf of certain communication workers. Stutz’ attend- ance at the class and craft would benefit hearings primarily the International. His participation hearing grievance and the with United Airlines were both tasks negotiations to be for the benefit of District The performed were to on after negotiations begin May day the fatal accident occurred.

On 1976, at about 5 May Stutz met with p.m., Carmona, official; Alfred a Local 1487 Barstead, Elton official; International and ames saw, an for High attorney J the International. Earlier that Stutz had attended the day and the class and grievance craft hearing hearings. was meeting Barstead to discuss the requested class and craft took in a restaurant hearings. meeting place and which was to the hotel where lounge adjacent Barstead aw were Other Highs union business was also staying. discussed at this time.

The uncontradicted of both Barstead and testimony Carmona was that Stutz was alcoholic drinking beverages these as were the during other meetings, Carmona persons. also testified that he could not remember what happened from 6:30 onward until he woke p.m. the next up morning in the hospital.

Barstead testified that he had seen Stutz in Chicago union business on or 30 20 He also occasions. testified that he and left Stutz and Carmona in the Highsaw bar at 7 When Barstead p.m. returned at 9 Stutz p.m., Carmona were still there. Barstead stated he discussed some additional union business before Stutz and leaving Carmona at 10:15 Kendall, Barton p.m. a United Airlines who was Carmona, with testified acquainted at the arbitration he observed hearing Carmona and a Stutz, bar p.m. learned was leaving

man later had been they looked as stated they though Kendall and Carmona got it Stutz up.” “living “whooping,” left car, with Stutz They Carmona’s driving. into and, as lot, they an inclined overpass ascended parking Highways struck Department crested overpass, to 3 the far left lane at truck which was proceeding and a truck had a yellow light miles hour. The flashing per of the truck to the rear pointing arrow attached large at the dead on arrival pronounced right. *6 minor Carmona suffered only injuries. hospital. whether the Commission we consider is

The first issue hear this matter. to matter jurisdiction subject possessed her filed when the claimant that 141 contends District not her and California, may she elected remedy in claim Illinois statutory relief in Illinois. applicable pursue states: provision who dependents under this Act employee or his

“An by any injury, of disable a cause of action reason shall have of his arising out of and in the course or death ment remedy in the State pursue elect to employment disabled, con where the injured or or in the State where employ made, where of hire is or in the State tract 48, 1975, ch. Rev. Stat. principally (Ill. localized.” ment is par. 138.1(b)(2).) in allowing of the Act is permissive

Clearly language three forums to file a claim in any claimant who a claimant whether Our becomes mentioned. inquiry localized, is where the files a claim principally and is it, thereby elects her remedy then dismisses and a claim in another jurisdiction. from filing precluded remedies was set on of law in Illinois election prevailing Faber, Bank v. First National Inc. Coe & Gregg, forth 204, 107 Ill. 2d 211: App. (1969), “ remedies of doctrine of election ‘The formal to confined decision has been gradually by judicial of doctrine sub- as a true remedial its purpose

551 stance; authority eminent as stated an by cases to trustees, be confined should trusts is of the plaintiff “where double compensation (1) has been actually the defendant threatened (2) res conduct or adjudi- misled plaintiff’s (3) by Trustees, Trusts and cata can be Bogert, applied.” ” Vol.IV, sec. 946.’ 1935 663; 3d Hawes 63 Altom v. Ill. App. (1978), (Accord, 3d Ill. City Chicago App. Schwartz of on this threat double There is no compensation record; has been misled claimant’s District 141 by acts; rendered and there has been no decision which would invoke doctrine California proceeding not elected a Thus, has res the claimant judicata. law as to so extent Illinois remedy required over the Commission from exercising jurisdiction prevent her claim. is not next claimant

District 141 contends was an because Stutz entitled receive award Adoph of the union. official not an elected union the “dual It District argued by capacity v. Industrial doctrine” W. Sales Co. Com. (B. should prevent payment apply 420) because was an elected officer of

compensation *7 an union in official duties and not employee. engaged in This court the doctrine adopted dual-capacity v. a Stevens Industrial Com. Ill. 495. There 346 (1931), who was also the and a secretary-treasurer 48% printer a when an shareholder of was killed struck by corporation automobile while from business returning collecting held one is in his official debt. court if acting as executive and is an of a capacity manager company work he is not covered the of an doing employee, v. under the Workmen’s Act. (Stevens Compensation 495, Industrial Ill. The claimant- Com. 346 (1931), 500.) in widow Stevens was of allowed account compensation 552 of death her It husband. was said that the decedent

had not been in his official as acting capacity secretary- treasurer but as an when left his office employee and endeavored to collect an account due from a debtor.

The definition of an under our Workmen’s in Act is Compensation pertinent part: “Every person in the service any of another under hire, written, contract of express implied, or oral or including persons employment whose is outside of the State of Illinois where contract of is hire made within the Illinois, persons State of employment whose results in fatal or injuries non-fatal within the State of where the Illinois Illinois, contract of made hire is outside of State of persons employment principally whose is localized Illinois, regardless within State of of place made, place accident or the of where contract hire was aliens, who, including purpose and minors for the power this are Act considered the same and have the same contract, payments therefor, give quittances receive 1975, employees.” par. as adult Ill. Rev. Stat. ch. 138.1(b)(2). officers, doctrine dual-capacity ostensibly prevents or

directors shareholders from compensation claiming when the form the extent corporate disregarded his becomes own W. Sales v. person Co. employer. (B. Industrial However, Com. Ill. 2d (1966), officer, under the dual doctrine “an director or capacity stockholder will not be denied compensation merely stockholder, officer, if, he is an because director or fact, matter of time he is in injury engaged of a manual labor duties workman and ordinary or if receives he was capacity employee, pay and distinct engaged separate palpably from the official him officer of duties as an falling upon v. B. Co. Industrial Com. W. Sales corporation.” Ill. Set Master Co. Leakfinding 2d shareholder Industrial Com. 517 (sole *8 to be found employee). doctrine event,

In we think that dual-capacity any are to union officials. They has no application equivalent return, are the union. In they or to work for elected hired the nature While a fixed the union’s by bylaws. salary paid offi fact does not remove executive, that of the work is “The ct from under Act. applies cials protection [A] but to all its not to the only corporation automatically in kind of work which they employees, regardless ” v. Industrial Com. engaged. (Stevens [Citations.] fact, The most significant 498.) however, not own shares is that union official does any union, does he exercise other interest nor any over union absolute control its A official operation. the union for term by membership. employed specified He is to and must act for sole them their responsible Thus, does not benefit. doctrine apply dual-capacity this case. Stutz was an of District 141. employee The next issue raised District 141 is whether Stutz by an was of District 141 or of the International employee Association, The Commission found union. parent will that District and we its mani disturb unless are findings they against fest of the Corp. evidence. Construction weight (Parro Parro, Industrial In Com. 45 Ill. 2d case, killed in an a consolidated two were employees while Even each crash on a business airplane trip. though other, work for related decedents performed were the Commission found they corporations, Parro alone. Construction employed Corporation court to those This refused disturb findings.

Stutz was Chicago request general of the three tasks chairman of District While one Inter- he was to beneficial was directly perform Association, also of national is not it was not say Moreover, other tasks benefit District 141. two *9 Stutz was to were for the benefit of perform express District 141. Barstead, the International Finally, though official, Association testified that the conversations in bar involved International Association business in main, Camora testified he that could recall discussing local union business with Stutz to 6:30 prior p.m. Commission’s that finding employee District 141 the time of death was not his against manifest of the evidence. weight

District 141 next contends that Stutz’s fatal accident not out did arise of and in the course of his employment. do We not It is Stutz was a agree. undisputed traveling and, such, as his fatal be employee injuries compen sable even have been in activities though might engaged other than those he was instructed to specifically perform his v. Industrial by Com. Ill. employer. 62 (Wright (1975), 65, With to 2d this court 69.) regard traveling employees has set down rule: following

“The Workmen’s Act was not Compensation to intended insure all accidental employees against but those which arise out of injuries acts only which the is instructed to employee perform by his acts which he has a common law or employer; while statutory duty perform performing duties for his or acts which employer [citations]; be employee might reasonably expected incident perform duties. assigned [Cita ” Control, Pest v. Inc. Industrial Com. (Ace tions.] 386, 388; Ill. David Wexler&Co. 2d (1965), Industrial Com. 52 Ill. 2d 510.) “ Moreover, hether an to a injury traveling employee [w] arises ‘out of and in the course of’ his and is therefore is to determined, be as we compensable indicated in Ace Pest Control Ill. 386,] by 2d [(1965), reasonableness of the conduct in which the *** at the time of In the final engaged injury. analysis, the result the reasonableness of the depends upon specific conduct and whether it normally might anticipated foreseen ***.” Industries v. Indus employer [U.S. trial In Indus Com. 40 Ill. U.S. 2d 474-75.) tries court concluded drive this “midnight pleasure unfamiliar, in mountainous terrain” was an “unantici unforeseeable and unreasonable pated, activity” arising out of or course of the claimant’s employment. (40 The instant case is different in decidedly that Stutz had been about his business employer’s albeit while throughout evening, engaging socializing well. At time of his fatal accident Stutz was heading in the direction of his Carmona, motel. passenger car, owner of the lived in the direction. It could opposite *10 be inferred the reasonably Commission that by Stutz and Carmona were to Stutz’ motel. It was driving certainly reasonable, foreseeable and incidental to his employment for Stutz to return to his motel for the via a night high The fact that way. Stutz was Carmona’s car cannot driving be said to be either unreasonable or unforeseeable so as to warrant our for the substituting Commission’s. judgment A similar case is Supply Co. Industrial Com. Bradford 50 Ill. 190. The claimant was a 2d traveling who, in the course of business, conducting consumed five or six beers in a four- or five-hour period. Several hours later the claimant was discovered injured in the driver’s seat of his automobile, in a culvert to the side of a The car had been highway. proceeding direction of the home, claimant’s which was 180 miles from the town he had left. This court refused to disturb of the Industrial finding Commission that the claim ant’s were received injuries on his back home and journey did arise out of and in the course of his employment. 190, Ill. 2d think (50 We the same 194-95.) principle should control here. Thus we conclude that Stutz’ accidental death out arose of and in the course of

his employment. 141 is that District made final contention by fatal accident. the time was intoxicated that the claimant issue, it is threshold As a argued cent of 186 per count milligrams blood-alcohol decedent’s to pursuant at the arbitration hearing not admissible 1975, Stat. Rev. act of the coroner’s section (Ill. 10(e) in pertinent That section 31, provides ch. par. 10(e)). part: vehicle involving a motor death of accidental “In cases of at specimen a blood ***, require that coroner shall *** body of the dece from withdrawn

least 10 cc. *** of the statisti The results analyzed] ***. dent [and not be paragraph shall referred in this examinations cal any any kind any action evidence in admissible tribunal, board, person, but agency any or before court Rev. Stat. purposes.” Ill. only for statistical shall be used par. 10(e). ch. blood- the results District rejoins into evidence were admitted pursuant alcohol analysis and thus is binding made by parties, stipulation District argues Additionally, parties. the admission raise an objection claimant error has first time on any test result for the appeal; ús to the case refers The claimant waived. We been agree. where 41 Ill. v. Bertuca App. of Swank that all that a objec court held stipulation appellate evi of an made at the time of tions must be taking to waive or not at all would not dence operate deposition *11 from the the to the of a blood admission sample objections decedent therein had been killed in decedent. The bar. The after the defendant’s automobile accident leaving a brought dramshop decedent’s representative personal the time of he was intoxicated the action arguing a was taken from chemist accident. A employed deposition defend of Public Health. The Illinois by Department a in limine to the chemist’s ant made motion suppress

557 a of as result blood taking sample, citing finding act. The court of trial section coroner’s granted 10(e) and the court It motion affirmed. stated: appellate waive which in litigant right stipulate “[A] fact of a would result policy. compromise public ex 451, rel. v. Scott 57 Ill. 2d (People 312 (1974), Janson Courts will not acknowledge stipulation N.E.2d 620.) to which is We that no contrary believe public policy. can either or inad litigant stipulate away, intentionally the mandate of vertently, section 10 Coroner’s Act.” v. Bertuca 41 Ill. 3d (Swank App. (1976), While the is correct, court’s we note that appellate holding trial it affirmed the court’s exclusion the blood-analysis result means of a Here, motion. Stutz’ by blood- pretrial has alcohol count admitted been already proceedings arbitrator, before the Commission and the circuit If the court. claimant had to the admission of objected the blood-alcohol test its evidence, to admission into prior Swank, inas her However, would be well point taken. claimant the admission into evidence of the test agreed result and did not admission its until this object appeal. “A cannot sit party evidence be intro by permit duced without objection upon appeal urge objections which have been if obviated made at the trial.” might &Car Foundry v. Industrial Co. Com. (American 332; 335 Ill. David Wexler & Co. v. Industrial Com. raised for the first (objection time that a statement in a violated appeal deposition rule and the hearsay Thus, Dead Man’s Act).) claimant’s is waived. objection

In order for to be on the denied basis compensation that an intoxicated, “the must be employee intoxicated, so evidence, shown court can as a matter say, law, arose out of injury his drunken condition and not out of his employment. Louisianian, Owners 155; K. (Frith Steamship B. *12 410; Line, 5 B. W. C. C. O’Brian v. Star 45 Scotch L. T. 935; 1 B. W. C. C. Whenever an is so drunk employee and he can no follow his helpless longer he cannot be said to be in his and engaged employment, when in that injured condition his does not arise injury out of his But intoxication which does employment. not from incapacitate his following occupation is not sufficient to defeat recovery compensation the intoxication be a although cause of contributing his Our statute was injury. not to make contri designed butory or a defense of that negligence employee, nature, a bar to his under the Workmen’s Com recovery act, where, case, as in this pensation arose out injury of and in the course of his v. Alexander employment. Board, Industrial Hahnemann v. Ill. Hospital 201.” Industrial 316, 327; Board M&M Parking Co. Industrial Com. 55 Ill. 2d

The evidence in this case is as to whether conflicting Stutz was so intoxicated the time of his accidental death that he could no follow his longer employment. Barstead, official, International Association testified that until 10:15 bar, when he left Stutz was p.m., coherent and able to discuss union fully complicated business. Barton Kendall, who observed Stutz and Carmona bar, testified were leaving they leaning wall, one of the men against had his arm around the other, were they it “whooping,” “living up.” Schaffer, Michael I. Finally, toxicologist employed the Cook office, Medical County Examiner’s testified that he could with as to the only blood testify certainty level of alcohol found in Stutz’ Schaffer said that body. venture any opinion Stutz’ intoxication might would be and would have to take into “subjective” account Stutz’ tolerance for the alcohol he had consumed. Schaffer stated further that he was unable to do that since he did not know Stutz’ or tolerance for capacity did not the blood- alcohol Schaffer conduct consumption. test on Cook alcohol employed by Medical Examiner until several County August months after the accident in question. will not disturb of the Industrial Commis

We findings *13 sion the where Commission has resolved factual disputed conclusions, drawn and reasonable inferences questions, and the of witnesses unless are judged credibility they to the manifest of the evidence. contrary weight (Phelps Industrial Com. Ill. 2d 74-75.) Commission found that Stutz’ on the of conduct night 6, 1976, was and May reasonable foreseeable and thus arose out of and in the course of his We employment. cannot that his conduct in say was otherwise view of the evidence of of conflicting extent Stutz’ state regarding intoxication. It is reasonable and foreseeable potentially that a union officer would sit ain union discuss lounge business with other union over officers several drinks. We cannot that that so say behavior is unreasonable or unfore seeable as to render the decision Commission’s contrary to the manifest of the evidence. weight for the stated, reasons

Accordingly, of judgment the circuit court of Cook is affirmed. County

Judgment affirmed. UNDERWOOD, MR. dissenting: JUSTICE I that a reasonable amount agree of drinking included within the of course of one in employment claimant’s When that position. reaches degree drinking record, however, intoxication manifested in this that a arises out of finding and in resulting injury is, course of to the my judgment, contrary manifest evidence. Larson, Work- weight A. (1A men’s sec. 34.00 I Compensation believe (1979).) arbitrator case this denied correctly compensation.

MR. KLUCZYNSKI in this joins dissent. JUSTICE RYAN,

MR. also dissenting: JUSTICE event involved in this case has caused some tragic reluctance write a dissent my part especially However, write in the manner which I propose. me to out majority opinion adopted compels speak and to do so rather It is difficult to remain forthrightly. eliminate from this silent while case my colleagues that, Act of our Workmen’s requirement Compensation out of and in to be one’s must arise injury compensable, course one’s employment. I am sure that criminal law under who studied anyone the late Dean Albert Harno at the of Illinois University J. recalls, do, I bit of This trivia following learning. must be the theme or text of the certainly majority opinion. “ floor, again ‘Not drunk is he who from the can rise more; lies, once prostrate drink But drunk who ” Harno, and can neither drink nor rise.’ A. Cases and

Materials on (3d Criminal Law and Procedure 194 n.la ed. Drunk, Rogers, 1950); *14 (1931). 35 Law Notes Larson, See also 1A A. Workmen’s sec. Compensation 34.10, at 6-62 (1979). recitation of with its accepted

The majority opinion, and concluding traveling employees holdings concerning it because of his in the course employment that was Stutz to his and incidental reasonable, foreseeable “was certainly for the motel night to return to his for Stutz have been written must at via a 555) highway” (79 or not reasonable was It certainly in cheek. with tongue to conclude least reasonably foreseeable) foreseeable (at in a else’s car highly someone he would driving that a rear of the run into and would condition intoxicated devices in operation. with its warning vehicle maintenance drunk! was that the discloses record The his con- rationalize tries how the opinion Regardless he came fact, he was so intoxicated over this or duct gloss above. The the definition close to within quoted qualifying at he in the evidence was same lounge shows drinking he and his until 11 or 11:30 When least from p.m. p.m. were the were talking leaving lounge, they companion it loud and were as A voices described up.” “whooping who observed and his as witness they companion were the the fatal minutes before leaving lounge, just accident, to have been stated they drinking. appeared the the two of them front witness saw leaning against of the and as to walk from away attempted building, they the vehicle, to their were so they unsteady building they were on to each other. Stutz undertook to drive holding vehicle, for some companion’s companion, reason, vehicle, into rear of the he seat least got was found in the rear seat A short collision. following lot, distance after Stutz drove leaving lounge parking into automobile the rear of a maintenance highway vehicle, a truck. vehicle This was not dump blocking It direction, was ain highway. was proceeding southerly Stutz. There were for lanes traffic each direc- multiple tion. The maintenance vehicle was south driving inner lane next to the median. All of its were in lights a operation, including on revolving yellow light top the truck which witness to have estimated been about 8 feet above the There awas on the ground. large sign orange rear truck, and the witness who had left the lounge lot that, ahead of parking just Stutz testified when truck, it had passed arrow large lighted yellow mounted on it cars on directing pass right. witness could not remember whether or not arrow was but he did state that it flashing, and it was lighted between 3 and 6 feet in size. The car left Stutz was driving no skid "marks that the brakes pavement, indicating *15 had not been applied to prior impact. employee’s blood alcohol content was 186 or of .186% milligrams alcohol The Illinois Vehicle Code that by weight. provides

a blood of to analysis considered as .05% .10% evidence, evidence, with other deter along competent whether a was under the influence of mining person was, But if there at the time of the intoxicating liquor. or more of alcohol in the analysis, .10% by weight person’s it shall be blood, presumed under person influence of Rev. Stat. ch. intoxicating liquor. (Ill. 95½, case, In this pars. analysis 501(c)(2), (3).) 11 — showed that blood contained employee’s substantially than more to raise the of intoxi required presumption cation. intoxication alone not

Admittedly, does necessarily a constitute from sufficient departure employment pre clude under Act. recovery Workmen’s Compensation However, intoxication which renders voluntary of his work is a employee incapable performing departure Larson, of 1A A. from course Work employment. (See men’s sec. 34.00 And when Compensation (1979).) condition, not in that does is injured injury Indus M M Co. v. & Parking out of his arise employment. trial Com. our conceivable act

In case only pertaining which was performing employee’s employment to his motel. the accident was the act of time of returning course of his could be considered as This being traveling because his status only not He did take taxi attempt acquire employee. Instead, he under- other safe means transportation. any automobile, an act which took to drive his companion’s rendered him totally incapable perform- his intoxication from him law and an act which the prohibited ing, with the collision is no evidence There performing. truck, with its many warning the rear of this well-lighted other than devices, had causative undisputed any origin condition of the intoxicated employee. otherwise, find but instead does majority *16 *** whether he evidence as to

states is conflicting “[t] death intoxicated at the time of accidental Stutz was so his Ill. that he could no follow his longer employment.” (79 The record does not this statement. 2d 558.) support evidence that could the conclu only possibly support evidence in the was sion as majority conflicting opinion had, himself, been statement who drinking person from 5 to 7 from 9 with Stutz p.m. p.m. p.m., again until about 10 That that when he left said p.m. person about had was of the that Stutz p.m., opinion not been That observation was drinking “excessively.” accident, an hour and a made half before he, himself, admitted that had “about witness consumed four or five drinks” Whatever Stutz’s during evening. condition have been at 10 evidence of p.m. what condition was after another hour or more of when he drove an automobile the rear drinking into of the marked maintenance vehicle. acted plainly who Anyone did at the as Stutz whose blood alcohol content lounge, .186%, and was who ran into the rear of a marked plainly vehicle, maintenance above, under noted conditions too intoxicated plainly drive an automobile. The accident could be attributed to no other cause.

It is well established that the Workmen’s Compen sation Act must be construed to liberally its accomplish purposes objects. Co. Industrial Com. (Pathfinder However, (1976), 62 rational boundaries be must defined to establish limits compensable recovery. Otherwise this court will not be reviewing workmen’s compensation decisions relating injuries out of and in the arising course of but, instead, will simply distribution of chari approving awards, table which, of our making regardless is not sympathies, purpose Workmen’s Compen sation Act.