Lybrand, Ross Bros. and Montgomery v. Industrial Commission

• Decision Date: 19 January 1967
• Docket Number: No. 39948,39948
• Citation: 36 Ill.2d 410,223 N.E.2d 150
• Parties: LYBRAND, ROSS BROS. & MONTGOMERY, Appellant, v. The INDUSTRIAL COMMISSION et al. (Marilyn J. Muth et al., Appellees.)
• Court: Illinois Supreme Court

Page 150

223 N.E.2d 150

36 Ill.2d 410

LYBRAND, ROSS BROS. & MONTGOMERY, Appellant, v. The INDUSTRIAL COMMISSION et al. (Marilyn J. Muth et al., Appellees.)

No. 39948.

Supreme Court of Illinois.

Jan. 19, 1967.

Sweeney & Riman, Chicago (Gerald O. Sweeney, Chicago, of counsel), for appellant.

John J. Sullivan and Frank Wiedner, Chicago (William J. Harte, Chicago, of counsel), for appellees.

UNDERWOOD, Justice.

The employer, Lybrand, Ross Bros. & Montgomery, appeals from a judgment of the circuit court of Cook County upholding the Industrial Commission's concurrence in an arbitrator's award of compensation for the death of its employee, John D. Muth. The sole issue on review is whether the death, resulting from injuries sustained in an auto accident which occurred while the employee was returning home from the employer's annual golf outing, arose out of and in the course of his employment under the terms of the Workmen's Compensation Act.

The employer, a large public accounting firm, each year holds a golf outing. An employee selected by the employer handles the arrangements for the affair to which employees and former employees are invited. These include retired persons and persons working elsewhere, in some cases for Lybrand's clients. The 1963 outing was held at St. Andrew's Golf and Country Club on August 23. This was a regular working day, and employees were encouraged in the invitation from the firm to so arrange their working engagements that they could attend the outing, and they were paid whether they worked or attended, but were not excused from working if they did not attend. The employer provided the food and drinks, paid for the golf and awarded prizes for various golfing accomplishments. Starting times for golf were controlled and assigned by a committee which allowed employees to choose between a morning or an afternoon time but did not otherwise fix arrival or departure times. Employees arranged their own transportation and apparently were not reimbursed for mileage. After dinner, a partner in the firm made a short speech in which he welcomed those attending the party, expressed the hope that they had been enjoying and would continue to enjoy themselves and introduced various members of the firm. After the speech the prizes were awarded, and then those present played cards, drank and talked, as they chose, until they decided to leave.

The decedent was personnel manager for Lybrand at the time of his death and had attended all previous outings since coming to the Chicago area. He was not urged to attend this one except by being sent a copy of the circular, received by all employees, which extended the invitation and encouraged attendance. He drove the 50 to 60 miles from his home to the club with two fellow employees, played golf with three former employees, and generally took part in the festivities. He had no special duties at the outing in connection with his work for Lybrand. He left the club around 12:30 to 12:45 A.M., with one of the fellow employees driving his (Muth's) car, and died as a result of injuries sustained in an accident which occurred during the return trip.

The employer places substantial reliance upon Becker Asphaltum Roofing Co. v. Industrial Comm., 333 Ill. 340, 164 N.E. 668, which involves somewhat similar facts. There, the branch of the employer in which the claimant worked, in accordance with the annual practice of some branches, held a picnic for the purposes of boosting employee morale and aiding business. There was a dispute as to whether the branch manager made all arrangements himself or with agreement of employees of the branch. The picnic was not held on a working day, but employees who attended, and some who did not, were paid for a half-day's work. Employees and their families were invited. The employer furnished soft drinks and ice cream, but the employees provided their own food and transportation and paid for contest prizes. The claimant was injured on his way to the picnic when his car was struck by a train. Circuit court affirmance of an award of compensation was reversed on the grounds that the claimant had not reached the picnic grounds and was not engaged in any work connected with his employment at the time of his injury.

Two analogous cases have come before this court in more recent times. In Jewel Tea Co. v. Industrial Comm., 6 Ill.2d 304, 128 N.E.2d 699, 928, we sustained an award of compensation to an employee who was injured in an employer-sponsored softball game. Jewel had organized a league of 15 teams, which were directed by captains appointed by each district manager. It supplied equipment, trophies, and monogrammed shirts. Team managers and Jewel's personnel chief established playing rules. The games were held at public parks, no admission being charged spectators, and Jewel publicized them and their results in various ways. Games were not played during working hours. The manager in the claimant's district prevailed upon him to join his district's team in the year he was injured. We emphasized three factors in our decision: the 'significant if not tangible' benefit of improved employer-employee relations, advertising benefits to Jewel, and subtle pressures on employees to participate.

A related problem arose in Hydro-Line Mfg. Co v. Industrial Comm., 15 Ill.2d 156, 154 N.E.2d 234. There the claimant was injured while playing baseball during his lunch hour. The only employer connection with the activity was its communicated intention, never carried out, to sponsor baseball games. employer involvement was substantially less than in Jewel, and we reversed the award in that case, considering important the lack of employer encouragement, control, supervision and benefits.

The parties in this case have discussed at length the cases from other jurisdictions in which similar problems were presented. These decisions are summarized by Larson in his treatise on workmen's compensation law where he lists as the relevant questions: whether the employer sponsored the event; whether attendance was really voluntary; whether attendance was encouraged to some extent; whether the event was employer-financed to a substantial extent; whether the employees regarded the event as an employment benefit to which they had a right; whether the employer benefited tangibly, and not merely through better morale and good will, from the event. (Larson, Workmen's Compensation Law, par. 22, 23 (1965).) A review of those cases which are closest to the instant case on their facts will be of help to a determination here.

In Kelly v. Hackensack Water Co., 10 N.J.Super. 528, 77 A.2d 467 an employee was killed in a fall. At the time of the fall he was walking from the place of his employer's annual outing to the place where a boat, which the employer had supplied for transporting his employees to the outing, was docked. The employer made all the arrangements for the outing and paid all the expenses. Employees were paid their regular wages on the day of the outing, and, if they did not attend it, they were required to work. In the course of the ride to the outing, a representative of the employer made awards for meritorious service, praised the employees for their good work and encouraged its continuation. The court held the death compensable because the outing benefited both the employer and the employees, the former through improved employee relations, and because employees were effectively compelled to attend. Considered important by the court in this case was the fact that, when the employer attempted to discontinue holding the annual outing, the employees protested, arguing that it was a benefit to which they were entitled, and succeeded in getting it reinstated.

In a more recent New Jersey case, Ricciardi v. Damar Products, Inc., 45 N.J. 54, 211 A.2d 347, the factual situation was even closer to ours. There an employee was killed in an accident which occurred during his return from an employer-sponsored picnic which was held for the purpose of improving employee-employer relations. While an employee had suggested that the employer hold the picnic,...