source: Caselaw Access Project

author: JUSTICE UNDERWOOD JUSTICE GOLDENHERSH,

license: Public Domain

text:
    (No. 56002.
    McCLURE ENGINEERING ASSOCIATES, INC., Appellant, v. THE REUBEN H. DONNELLEY CORPORATION, Appellee.

      Opinion filed February 18, 1983.
    Rehearing denied April 8, 1983.

      Francis R. Van Hooreweghe, of Van Hooreweghe, Fackel & Thuline, of Moline, for appellant.
    Joel A. Haber, Alvin D. Meyers, and Steven J. Teplinsky, of Chatz, Berman, Maragos, Haber & Fagel, of Chicago, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, McClure Engineering Associates, Inc., entered into several contracts with defendant, the Reuben H. Donnelley Corporation, whereby defendant agreed to place advertisements for plaintiff in the yellow pages classified telephone directories for the communities of Geneseo and Freeport. When the ads failed to appear in the Geneseo directory in either 1976 or 1977, and in the Freeport directory in 1977, plaintiff filed suit against defendant in the circuit court of Rock Island County, seeking over $45,000 in damages. On defendant’s motion, the trial court granted a directed verdict in plaintiff’s favor for $271.70, which was the price of the advertising, and costs. The appellate court affirmed (101 Ill. App. 3d 1109), and we granted plaintiff’s petition for leave to appeal.

In 1975 plaintiff, a professional engineering firm, wished to open branch offices in Freeport and Geneseo; the yellow pages listing was important to it because plaintiff was ethically precluded from any other type of advertising. The directories for those communities were published, respectively, by the Northwestern Telephone Company and the Geneseo Telephone Company, with defendant serving as one of their sales agents. Although plaintiff’s president testified that he believed the listing to be available only through defendant, notices printed at the front of the yellow pages directories indicated that potential' advertisers could also deal directly with the telephone companies or with L. M. Berry & Company, an Ohio-based publisher. In addition, defendant’s contracts provided that an advertiser could cancel an agreement at any time prior to the date of publication; plaintiff’s president, who was responsible for placing the ads, testified that he had not read all of the terms before signing the contracts.

Both the trial and appellate courts predicated their conclusions on a contract clause which limited the liability of both defendant and the directory publisher. That clause provided:

“The advertiser is expected to pay the rate as billed. The liability of the Telephone Company in connection with any error or omission in publication of, or failure to publish, any item of advertising in any issue of any directory, shall be limited to the charges for the publication of such issue of the item of advertising involved, excluding charges for cuts, engravings or electrotypes. The term ‘Telephone Company’ shall include any or all Telephone Companies involved in this transaction, the Selling Company, the Publishing Companies, or any representative of said company or companies.”

In practical effect, the provision constitutes an exculpatory clause, as defendant must return only the advertising cost in the event that a listing is omitted. The sole issue facing this court is whether the exculpatory clause is valid and can be enforced.

Plaintiff seizes upon the language of the exculpatory clause which states that the term “Telephone Company” shall include any selling company to argue that defendant is not an independent business entity, but should be considered simply as an extension of the telephone companies. Consequently, plaintiff urges, a monopoly exists in the solicitation of yellow pages advertising and this lack of competition, when coupled with the commercial importance of directory listing, creates a public interest in prohibiting exculpatory clauses in these contracts. Examination of the record, however, clearly indicates that defendant is a separate business entity, and it appears to us that the language used in the provision focused on by plaintiff served only as a convenient means of defining the parties protected under the clause.

We do not agree with plaintiff’s assertion that defendant’s exculpatory clause violates public policy. Public policy, a “principle of law which declares that no one may lawfully do that which has a tendency to be injurious to the public welfare” (People ex rel. Nelson v. Wiersema State Bank (1935), 361 Ill. 75, 86), is found in our constitution, statutes and judicial decisions (People ex rel. Nelson v. Wiersema State Bank (1935), 361 Ill. 75; Knass v. Madison & Kedzie State Bank (1933), 354 Ill. 554; City of Champaign v. Department of Revenue (1980), 89 Ill. App. 3d 1066). Public policy strongly favors freedom to contract (O’Callaghan v. Waller & Beckwith Realty Co. (1958), 15 Ill. 2d 436, 438), as is manifest in both the United States Constitution and our constitution. (See U.S. Const., art. I, sec. 10; Ill. Const., art. I, sec. 16.) Too, we think it significant that while the legislature has expressly recognized the need to regulate contractual liability in certain situations (see, e.g., Ill. Rev. Stat. 1975, ch. 26, par. 7 — 204 (professional bailees); Ill. Rev. Stat. 1975, ch. 71, par. 1 (innkeepers); Ill. Rev. Stat. 1975, ch. 80, par. 91 (residential landlords)), there is no legislation concerning this type of contractual relationship between private corporations.

The decisions of this court have consistently reflected a judicial concern with balancing the need to respect the right to freely contract with the need to protect parties from unfair provisions in contracts involving publicly regulated activities. (See, e.g., Sweney Gasoline & Oil Co. v. Toledo, Peoria & Western R.R. Co. (1969), 42 Ill. 2d 265; Jackson v. First National Bank (1953), 415 Ill. 453; Chicago & Northwestern Ry. Co. v. Chapman (1890), 133 Ill. 96; Tyler, Ullman & Co. v. Western Union Telegraph Co. (1871), 60 Ill. 421; see also Annot., 175 A.L.R. 8 (1948), and A.L.R. Blue Book of Supplemental Decisions 622 (1982).) However, in the nonregulated areas the decisions of this court and those of other jurisdictions reflect a widespread policy of permitting competent parties to contractually allocate business risks as they see fit. (Schlessman v. Henson (1980), 83 Ill. 2d 82; Jackson v. First National Bank (1953), 415 Ill. 453. See also Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp. (1946), 395 Ill. 429. Accord, Reserve Insurance Co. v. Pisciotta (1982), 30 Cal. 3d 800, 640 P.2d 764, 180 Cal. Rptr. 628; Jones v. Dressel (Colo. 1981), 623 P.2d 370; Emory University v. Porubiansky (1981), 248 Ga. 391, 282 S.E.2d 903; Occidental Savings & Loan Association v. Venco Partnership (1980), 206 Neb. 469, 293 N.W.2d 843; Gross v. Sweet (1979), 49 N.Y.2d 102, 400 N.E.2d 306, 424 N.Y.S.2d 365; Brittain v. Booth (Wyo. 1979), 601 P.2d 532; Belger Cartage Service, Inc. v. Holland Construction Co. (1978), 224 Kan. 320, 582 P.2d 1111; Olson v. Molzen (Tenn. 1977), 558 S.W.2d 429; Weaver v. American Oil Co. (1971), 257 Ind. 458, 276 N.E.2d 144; Rawlings v. Layne & Bowler Pump Co. (1970), 93 Idaho 496, 465 P.2d 107; Dilks v. Flohr Chevrolet, Inc. (1963), 411 Pa. 425, 192 A.2d 682.) “This accords to the individual the dignity of being considered capable of making and standing by his own agreements.” Sweney Gasoline & Oil Co. v. Toledo, Peoria & Western R.R. Co. (1969), 42 Ill. 2d 265, 267.

Plaintiff combines its public policy argument with the contention that defendant took advantage of an unreasonably advantageous bargaining position to engage in overreaching. Using an exculpatory clause does not in and of itself constitute overreaching. Nor do we consider, in the context of this record, that defendant’s bargaining position was shown to be unreasonably advantageous. Much of the power which plaintiff attributes to defendant rests on plaintiff’s unfounded assumption that defendant was the sole party with whom it could have dealt. The actual bargaining position of these parties, however, is unclear. The record does not disclose the contract terms which L. M. Berry & Company or either of the telephone companies would have offered plaintiff, and we simply do not know whether they would have been more or less favorable. But even more persuasive are the many decisions in other jurisdictions which recognize that yellow pages advertising is a nonregulated activity, refuse to find unconscionable bargaining, and uphold the exculpatory clauses used in such contracts. See Gas House, Inc. v. Southern Bell Telephone & Telegraph Co. (1976), 289 N.C. 175, 221 S.E.2d 499; State ex rel. Mountain States Telephone & Telegraph Co. v. District Court (1972), 160 Mont. 443, 503 P.2d 526; Warner v. Southwestern Bell Telephone Co. (Mo. 1968), 428 S.W.2d 596; Federal Building Service v. Mountain States Telephone & Telegraph Co. (1966), 76 N.M. 524, 417 P.2d 24; Pride v. Southern Bell Telephone & Telegraph Co. (1964), 244 S.C. 615, 138 S.E.2d 155; Baird v. Chesapeake & Potomac Telephone Co. (1955), 208 Md. 245, 117 A.2d 873; Louisville Bear Safety Service, Inc. v. South Central Bell Telephone Co. (Ky. 1978), 571 S.W.2d 438; Robinson Insurance & Real Estate, Inc. v. Southwestern Bell Telephone Co. (W.D. Ark. 1973), 366 F. Supp. 307; Cunha v. Ohio Bell Telephone Co. (1970), 26 Ohio Misc. 267, 271 N.E.2d 321; Wheeler Stuckey, Inc. v. Southwestern Bell Telephone Co. (W.D. Okla. 1967), 279 F. Supp. 712; Wilson v. Southern Bell Telephone & Telegraph Co. (La. App. 1967), 194 So. 2d 739; Advance Service, Inc. v. General Telephone Co. (Fla. App. 1966), 187 So. 2d 660; Smith v. Southern Bell Telephone & Telegraph Co. (1962), 51 Tenn. App. 146, 364 S.W.2d 952; Wade v. Southwestern Bell Telephone Co. (Tex. Civ. App. 1961), 352 S.W.2d 460; Georges v. Pacific Telephone & Telegraph Co. (D. Or. 1960), 184 F. Supp. 571; Neering v. Southern Bell Telephone & Telegraph Co. (S.D. Fla. 1958), 169 F. Supp. 133.

For the reasons stated, the judgment of the appellate court affirming the judgment of the circuit court of Rock Island County is affirmed.

Judgment affirmed

JUSTICE GOLDENHERSH,

dissenting:

I dissent. I would hold the exculpatory clause void as against public policy and reverse the judgment. The majority states, “Much of the power which plaintiff attributes to defendant rests on plaintiff’s unfounded assumption that defendant was the sole party with whom it could have dealt.” (95 HI. 2d at 73.) This is an unrealistic evaluation of the evidence in view of the fact that the exculpatory clause itself provides that “the term ‘Telephone Company’ shall include any or all Telephone Companies involved in this transaction, the Selling Company, the Publishing Companies, or any representative of said company or companies.” It is obvious that it would not have made any difference whether the plaintiff discussed the contracts with a representative of the Reuben H. Donnelley Corporation or L. M. Berry & Company; it was in any event doing business with the same entity, “the Telephone Company.” To reach any other conclusion is to exclude from consideration the facts as they actually exist.

In order to invoke the protection of the exculpatory clause defendant should, at the least, be required to show some reasonable effort to perform its contractual obligations. To the contrary, so callous and indifferent was the conduct of the defendant here that it managed to omit plaintiff’s listing in the Geneseo directory for two consecutive years, 1976 and 1977.

Justice would require, rather than enforcement of the exculpatory clause, that the plaintiff recover for actual damages for the one-year omission from the Freeport directory and exemplary damages for what appear to be the wilful omissions from the Geneseo directory.


author: JUSTICE MORAN JUSTICE SIMON,

text:
    (No. 56367.
    BRIAN WENHOLDT, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Old Chicago Beer Gardens, Inc., Appellee).

      Opinion filed February 18, 1983.
    Rehearing denied April 8, 1983.

      Cirricione, Block, Krockey & Cernugel, P.C., of Joliet (Michael D. Block and Michael N. Gorcowski, of counsel), for appellant.
    Poulakidas, Poulakidas & Wood, of Chicago (Richard Wood and Richard W. Baum, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Claimant, Brian Wenholdt, sought workmen’s compensation for an injury which he allegedly sustained while in the employ of respondent, Old Chicago Beer Gardens, Inc. (Beer Gardens). An arbitrator found that claimant failed to prove “the relationship of employee and employer existed between said [claimant] and said Respondent,” and therefore denied compensation. On review, the Industrial Commission affirmed and adopted the decision of the arbitrator. The circuit court of Will County confirmed the decision of the Commission, and claimant brought a direct appeal to this court (73 Ill. 2d R. 302(a)).

The primary issue for review is whether an employer-employee relationship existed between claimant and respondent on the date of the accident.

Claimant testified that he was a musician with a band which was scheduled to perform at the Beer Gardens on December 1 and 2, 1978. The group was to be paid $250 for each performance. Claimant stated that, on December 2, 1978, he arrived at the Beer Gardens, parked his van, and began unloading his equipment. He was subsequently informed, by the owner of the Beer Gardens, that he was blocking a fire door and would have to park in another location. Claimant parked his van in a different area in the parking lot. As he was walking back to the tavern, he slipped on some ice and fell, suffering a fractured ankle. Claimant further stated that the Beer Gardens is located in the building referred to as “Old Chicago.” Also located in the building are numerous shops and an amusement park.

On cross-examination, claimant testified that no one directed him as to where he should park. The parking lot in which he was injured is available for use by anyone who visits any of the establishments in Old Chicago. He also stated that he was hired to perform by the band leader, not respondent. He bought and maintained his own equipment and rehearsed at the band leader’s home. No representative of the Beer Gardens attended the rehearsals, told the group how it should rehearse, or directed the music to be played. The band established its own dress code for performances. Claimant indicated that, wherever they performed, the tavern owner paid the band leader, who in turn paid the other members of the group. No social security or other taxes were withheld from claimant’s pay.

He further testified that only respondent and the band leader executed a written contract relative to the performances. The contract was a standard form used by the American Federation of Musicians. After being signed by the band leader, the contract was shown to the other members of the group.

Claimant asserts that, by virtue of the contract, he was an employee of respondent at the time of the accident. Claimant directs our attention to clause six of the contract, which states:

“The Employer shall at all times have complete supervision, direction and control over the services of musicians on this engagement and expressly reserves the right to control the manner, means and details of the performance of services by the musicians including the leader as well as the ends to be accomplished. If any musicians have not been chosen upon the signing of this contract, the leader shall, as agent for the Employer and under his instructions, hire such persons and any replacements as are required.”

It is contended that this contract grants to respondent the right of control and establishes, as a matter of law, an employer-employee relationship. It is further argued that, even if conflicting inferences could be drawn from the evidence, the facts indicate that claimant was an employee of respondent. Claimant asserts that respondent had the right of control, regardless of whether it exercised that right, and this is the most significant factor in determining the parties’ status.

Respondent argues that the contract does not unambiguously establish an employer-employee relationship, because the language in clause six is contradicted by other language. Clause seven states that any dispute arising out of the contract must be submitted to an arbitrator. Another clause requires an employer who breaches the contract to pay the musicians damages, interest, and attorney fees. Respondent therefore contends that conflicting inferences can be drawn as to claimant’s status, and whether he was an employee or not on the date of his accident is a question of fact.

We find no merit to respondent’s contention that the arbitration and damages clauses of the contract indicate that claimant is an independent contractor. These provisions could be included in the contract regardless of claimant’s status. What is more significant is that claimant was not a party to the contract and, in fact, was unaware of it until after the contract was executed.

Further, a contractual agreement is a factor to consider in determining a party’s status, but it does not, as a matter of law, establish an employer-employee relationship. In Bauer v. Industrial Com. (1972), 51 Ill. 2d 169, claimant, who made deliveries for a pizzeria, entered into a contract which denied respondent the right to exercise any control over him. In determining that claimant was an independent contractor, this court stated:

“Respondents exercised no control over claimant and, contractually, were denied the right to exercise control. Respondents required only that their products be delivered as rapidly as possible and the drivers were free to choose any route they desired in order to fulfill this requirement. We further note that each driver was paid according to the number of deliveries he made. Claimant had to supply his own car with equipment to keep the food warm as well as pay his own expenses which included automobile insurance with extended coverage for business usage.” (51 Ill. 2d 169, 172.)

Thus, the contract was just one factor taken into account in determining claimant’s status. It was not the sole consideration.

There is no inflexible rule for determining whether an individual is an employee or an independent contractor. (Bauer v. Industrial Com. (1972), 51 Ill. 2d 169, 171.) “No one factor may determine what the relationship is between parties in a given case. It may be necessary to consider a number of factors with evidentiary value, such as the right to control the manner in which the work is done, the method of payment, the right to discharge, the skill required in the work to be done, and who provides tools, materials, or equipment.” (Morgan Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 92, 97.) Also to be considered is whether the workman’s occupation is related to that of the employer (Henry v. Industrial Com. (1952), 412 Ill. 279, 283; see 1C A. Larson, Workmen’s Compensation sec. 45.10 (1980)), and whether the employer deducted for withholding tax (Kirkwood Brothers Construction v. Industrial Com. (1978), 72 Ill. 2d 454, 460; see Penny Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 217, 219). It has been held that the right to control the work is the single most important factor in determining the parties’ relationship. Bauer v. Industrial Com. (1972), 51 Ill. 2d 169,172.

Clause six of the contract purports to grant to respondent a complete right of control over the band. In fact, respondent did not exert any control over claimant. Indeed, all of the other significant factors support the conclusion that claimant was an independent contractor. The band leader had the right to hire and replace (and thus implicitly fire) claimant. He actually controlled the manner in which the work was done. Further, claimant provided his own equipment, was compensated “by the job” as opposed to on a time basis, and had no withholding taxes deducted. Contrary to claimant’s assertion, his occupation is not related to that of the employer. Claimant is a musician and respondent operates a tavern.

Considering all of these relevant factors, we do not believe that the Commission’s decision was against the manifest weight of the evidence. (See Rogers v. Industrial Com. (1980), 83 Ill. 2d 221.) Accordingly, the judgment of the circuit court of Will County is affirmed.

Judgment affirmed.

JUSTICE SIMON,

dissenting:

I disagree with the majority’s conclusion of law and its summary treatment of most of the facts in this case. I would remand the cause to the Industrial Commission for entry of an award.

The employment contract in this case expressly provided that the tavern owner had complete supervision, direction and control over the services of the claimant and the right to control the manner, means and details of the performance of services by the claimant. It is anomalous that the majority, in determining the effect of such a contract, should rely so heavily on a case involving a contract which stated the opposite. That case is Bauer v. Industrial Com. (1972), 51 Ill. 2d 169, in which the contract provided that the alleged employer was denied the right to exercise any control over the claimant.

Perhaps the tavern owner did not attempt to exercise control over the claimant and the other musicians, but under the terms of the contract he could have had he wanted to. The majority contends the claimant was paid on a job basis and not on a time basis. It is true that the musicians were paid a flat sum for each performance, but this does not mean that the contract did not state how many hours the musicians would perform each night, or assign specific hours as work hours.

Contrary to the majority’s conclusion, I believe that the claimant’s occupation is closely related to that of the tavern owner. The respondent operated a tavern in which entertainment was provided to attract customers. That was the tavern owner’s business, and the claimant participated in that business by being part of the entertainment. The fact that withholding taxes were not deducted by the tavern owner from the claimant’s compensation should not be found determinative. See Penny Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 217, holding that this fact, while relevant, is of secondary importance where a municipal ordinance imposed an employer-employee relationship on the parties as if by contract.

In McClure Engineering Associates, Inc. v. Reuben H. Donnelley Corp. (1983), 95 Ill. 2d 68, also decided this day, we herald the “widespread policy of permitting competent parties to contractually allocate business risks as they see fit.” (95 Ill. 2d 68, 72.) The majority in this case correctly observes that “the right to control the work is the single most important factor in determining the parties’ relationship.” (95 Ill. 2d at 81.) When the parties enter into a contract stating that it is the tavern owner who has the right to control the work of the musicians, I do not understand why we should not respect the contractual relationship the parties agreed to and declare that the parties are governed by it.

The decision as to whether the relationship between the parties should be governed by their contract is a matter of law rather than one of fact, and for that reason we are not bound by the Industrial Commission’s conclusion. Nor is it necessary for us in reversing the Commission to declare that the Commission’s decision was against the manifest weight of the evidence. I would reverse the circuit court and the Industrial Commission on the basis of the clear terms of the contract, which the conduct of the parties did not in any way contradict.


author: JUSTICE CLARK

text:
    (No. 55872.
    THE CITY OF DES PLAINES, Appellant, v. THE INDUSTRIAL COMMISSION et al. (John W. Huege, Appellee).

      Opinion filed January 24, 1983.
    Rehearing denied April 8, 1983.

      Roddy, Power & Leahy, Ltd., of Chicago (John H. Guill, of counsel), for appellant.
    Wiedner & McAuliffe, Ltd., of Chicago (John P. McAuliffe and Richard J. Leamy, Jr., of counsel), for appellee.
   JUSTICE CLARK

The claimant, John W. Huege, filed two claims for workmen’s compensation benefits (I.C. Nos. 79 WC 34487 and 79 WC 34488). Claim No. 79 WC 34487 was for an alleged injury that occurred on June 4, 1979, and claim No. 79 WC 34488 was for an alleged injury that occurred on June 13, 1979. Claimant petitioned for, and was granted, an immediate hearing on both claims pursuant to section 19(b) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(b)). Section 19(b) provides in pertinent part:

“The Arbitrator or committee of arbitration may find that the disabling condition is temporary and has not yet reached a permanent condition and may order the payment of compensation up to the date of the hearing, which award shall be reviewable and enforceable in the same manner as other awards, and in no instance be a bar to a further hearing and determination of a further amount of temporary total compensation or of compensation for permanent disability, but shall be conclusive as to all other questions except the nature and extent of said disability.”

On December 7, 1979, there was a “19(b)” hearing before an arbitrator and the claims for the alleged injuries were heard on a consolidated record.

On March 27, 1980, the arbitrator filed a decision with the Industrial Commission on I.C. No. 79 WC 34487 awarding the claimant “$248.33 per week for a period of one-seventh of a week, that being the period of temporary total incapacity for work, for which compensation [was] payable.” The decision further stated that “all questions relating to permanent partial disability [were to be] adjudicated in I.C. No. 79 WC 34488.”

On March 31, 1980, the arbitrator filed a second decision with the Industrial Commission on I.C. No. 79 WC 34488, which she had designated as the number for the permanent disability claim, modifying the award for temporary total disability. The decision states:

“That Petitioner is entitled to have and receive from said Respondent the sum of $248.39 per week for a period of 27% weeks, that being the intermittent period of temporary total incapacity for work, for which compensation is payable, as provided in paragraph (b) of Section 19 of said Act, as amended, for the reason that the injuries sustained caused the disabling condition of said Petitioner; that the disabling condition is temporary and has not yet reached a permanent condition.
This award in no instance shall be a bar to a further hearing and determination of a further amount of temporary total compensation or of compensation for permanent disability.”

The amount of compensation changed from $248.33 to $248.39 between the first decision that was filed and the second decision of the arbitrator. We do not know whether this change was intentional or a clerical mistake. The arbitrator also awarded the claimant necessary medical expenses in the sum of $2,092.75.

On December 22, 1980, the Industrial Commission filed a decision on review of claim No. 79 WC 34488, affirming the decision of the arbitrator and modifying the award for temporary total disability to $248.39 per week for a period of 521/t weeks, and an additional $86.45 was awarded for necessary medical expenses. The respondent was to be given credit for all compensation paid to the claimant up to that point. The circuit court of Cook County entered an order which read: “It is hereby ordered that the decisions of the Industrial Commission in the matter of John Huege v. The City of Des Plaines, under Industrial Commission Nos. 79 WC 34487 and 79 WC 34488 are hereby affirmed and those decisions made the decisions of this Court.” It is from this judgment that the respondent, the city of Des Plaines, appeals.

The only matter that was decided by the arbitrator, the Industrial Commission and the circuit court was whether the claimant was entitled to temporary total disability. The arbitrator in her first decision stated that questions relating to permanent partial disability would be adjudicated under I.C. No. 79 WC 34488. However, the question of permanent partial disability was never resolved. Since the claimant was only awarded compensation for his temporary total disability, that is the only matter properly before us on appeal.

On June 4, 1979, the claimant, a 35-year-old fireman for the city of Des Plaines, was rolling up fire hoses and replacing them on a hose rack when he began to suffer chest pain. He immediately sought medical attention from the paramedics on duty at the firehouse. The paramedics took an electrocardiogram (EKG), and claimant testified that one of the paramedics told him there was a “slight depression in ST segment.” Claimant testified that he had received training in paramedic technique and could read the EKG strip and see what the paramedic was referring to. The paramedics took the EKG to Holy Family Hospital on their next call. The claimant did not accompany them to the hospital because his pain had subsided. After his shift had ended that day, the claimant went to the emergency room of Holy Family Hospital and another EKG was performed. The doctor in the emergency room told the claimant the EKG was normal. The doctor gave the claimant pain pills and told him that he had strained his chest muscles.

On June 13, 1979, as the claimant was working, carrying two cases of 24 quart-sized cans of motor oil for the fire-fighting equipment, he again suffered chest pain. On both occasions he described the pain in his chest as a pain which radiated into his right shoulder, down to his elbow and up to his neck, accompanied by a severe headache. On this second occasion the claimant was admitted to Holy Family Hospital and placed in the coronary care unit for three days. He was then transferred to another room and remained hospitalized for a week and a half.

The only issue before this court is whether the Industrial Commission’s finding that the claimant suffered an accidental injury arising out of and in the course of his employment is against the manifest weight of the evidence. We hold that it is not.

The claimant in this case was diagnosed as suffering from a preexisting coronary artery disease. Respondent, the city of Des Plaines, asserts that the claimant’s preexisting condition was neither aggravated nor accelerated by his employment so that he did not suffer an accidental injury and should not have been awarded compensation.

This court has previously held that an employer is presumed to take his employees as he finds them. (Rock Road Construction Co. v. Industrial Com. (1967), 37 Ill. 2d 123, 129.) An accidental injury can be found to have occurred even though the result would not have occurred had the claimant been in normal health. (Republic Steel Corp. v. Industrial Com. (1962), 26 Ill. 2d 32, 43-44.) The rule has evolved that even if an employee suffers from heart disease, if the heart attack which brings on the current disability is work related, the employee may recover worker’s compensation. (Doyle v. Industrial Com. (1981), 86 Ill. 2d 544, 548-49; County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 17.) If there is work-related stress, either physical or emotional, that aggravates the disease so as to cause the heart attack, then there is an accidental injury arising out of and in the course of the employment. Doyle v. Industrial Com. (1981), 86 Ill. 2d 544, 549.

Respondent asserts that the claimant did not actually suffer a heart attack or myocardial infarction and that, even if he did, the activities he was engaged in when he allegedly suffered the pain were not the cause of bis current disability.

There is no dispute that when the two incidents occurred the claimant was engaged in work-related activities. There is disagreement, however, as to whether the activities engaged in by the claimant on these two particular occasions caused the claimant’s current disability. The claimant’s physician testified that the physical effort described tovhim in the fire-hose incident and in the box-lifting incident could be the type of exertion that would cause the claimant’s pain and disability. Respondent’s expert opined that the work activities described by the patient neither caused, aggravated nor accelerated the onset of the claimant’s condition of ill-being.

There was also conflicting medical testimony as to whether the claimant actually suffered a heart attack. Respondent’s expert testified that the claimant had not suffered a myocardial infarction or any permanent damage to the heart muscles. Claimant’s expert testified that a myocardial scan that was performed on June 19, 1979, “was compatible with infarction in the intraventricular septum.”

This court has consistently held that where medical evidence is conflicting as to causation, it is within the purview of the Industrial Commission to determine which testimony is to be accepted. E.g., County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18; Illinois Valley Irrigation, Inc. v. Industrial Com. (1977), 66 Ill. 2d 234, 241.

The Commission could have reasonably inferred that the work-related activities engaged in by the claimant on June 4, 1979, and June 13, 1979, caused him to suffer accidental injuries resulting in his current disability. The Commission is entitled to draw reasonable inferences from the evidence, and this court will not disregard those inferences unless the Commission’s decision is against the manifest weight of the evidence. Rice v. Industrial Com. (1980), 81 Ill. 2d 544, 547.

Lastly, respondent asserts that “further testimony which was used as a foundation for admission of correspondence between the fire chief and the mayor of the city of Des Plaines” was improperly admitted over its objection. Respondent makes a general reference to this “further testimony” but fails to make reference to the specific testimony it is referring to. Without more than that general allegation before us, we cannot determine whether the respondent’s objection is valid. It is the obligation of the respondent to bring specific evidence complained of to our attention, and it cannot succeed in preserving an appeal on this point without more specificity.

We hold that the finding of the Commission that the claimant suffered an accidental injury arising out of and in the course of his employment is not contrary to the manifest weight of the evidence.

For the reasons given, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


author: JUSTICE UNDERWOOD

text:
    (No. 56385.
    JOSEPH A. COURI, Appellant, v. ANTHONY J. COURI, Appellee.

      Opinion filed January 24, 1983.
    Opinion modified Feb. 14, 1983.
    Rehearing denied April 8, 1983.

      David B. Daley, of Sutkowski & Washkuhn Associates, of Peoria, for appellant.
    John E. Cassidy, Jr., of Cassidy & Mueller, of Peoria, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

This litigation began in 1974, approximately GVz months after the dissolution of a partnership that had existed for some 20 years between the plaintiff, Joseph Couri, and his brother, Anthony Couri, the defendant. Pursuant to plaintiff’s complaint, the circuit court of Peoria County ordered defendant to render a formal accounting to plaintiff, and on June 30, 1980, a court-appointed receiver wound up the partnership affairs. A final judgment was entered, in February 1981, for plaintiff in the amount of $122,690 and costs. Defendant appealed, plaintiff cross-appealed, and the appellate court reversed (103 Ill. App. 3d 445). We allowed plaintiff’s petition for leave to appeal.

In 1941, plaintiff, defendant, and their brother Peter Couri orally agreed to operate as equal partners the “Couri Brothers Supermarket,” a business which their father began in 1928. The brothers agreed that they would have equal control of the partnership, share equally in profits and losses and have equal rights in the partnership property. The agreement was of indefinite duration.

Plaintiff began working full time in his father’s store in 1935 and continued to do so until 1941, when he entered the United States Army. Defendant began working in the store in the early 30’s and in 1941, following his father’s death, assumed responsibility for the books and records of the newly formed partnership. Defendant continued to work full time at the store until 1946, when plaintiff returned from the Army and resumed his full-time position. Thereafter defendant apparently worked part time for several years until he formed another unrelated partnership, a tavern called the “Western Tap.” From approximately 1949 until 1956, defendant devoted most of his time to that business while plaintiff continued to work full time in the supermarket. It was apparently during that time that Peter Couri entered medical school, and in 1954 plaintiff and defendant purchased his interest in the partnership. Their oral agreement was of indefinite duration, and provided that they would, in all respects, be equal partners.

Defendant sold the Western Tap in 1956, and for the next 10 years devoted a good deal of his time to real estate ventures on behalf of the supermarket partnership. During this period, plaintiff gave his full time to the store, working as a clerk as well as a butcher in the meat department.

The brothers continued to operate the partnership, with both now apparently working full time, until September 29, 1973, at which time they had an irreconcilable disagreement, resulting in plaintiff’s leaving the store permanently. The circumstances under which the disagreement and dissolution of the partnership occurred were sharply disputed: Plaintiff claimed that he was precluded by defendant from full participation in the management and operation of the partnership, while defendant claimed that plaintiff abandoned the business and thereafter refused to participate. Although neither party acquiesced in the other’s characterization of the circumstances surrounding plaintiff’s departure, the trial court determined that the partnership was rightfully dissolved, a finding which has not been challenged on appeal.

In November 1973, plaintiff visited defendant at his home and requested and received some of the partnership records for the prior two years. The parties, however, were unable to resolve their differences, and plaintiff consequently demanded that defendant wind up the partnership affairs. Instead, in July 1974, defendant changed the locks on the store, closed out the partnership checking account, opened a new account which was in his exclusive control, changed the name of the grocery store from “Couri Brothers Supermarket” to “Couri’s Supermarket,” and continued to operate the store until the court-appointed receiver wound up the partnership affairs and disposed of its assets.

The books and records of the partnership as well as the tax returns were prepared and maintained by defendant throughout the partnership’s existence. There were daily reports, and monthly and yearly summaries. The tax returns were prepared from the latter two. The daily reports were theoretically restated in the monthly and yearly summaries; however, at least for the years 1971 through 1974, income was admittedly substantially understated so that the summaries and tax returns for those periods did not accurately reflect actual income. The parties agreed at trial and in the appellate court that income could be reliably verified from the daily reports, a concession which the appellate court found difficult to accept because of its belief that those records could not have accurately reflected the partnership’s net profit. It seems clear, however, that those records, if adequately explained, represented the most accurate description of the financial operation of the partnership. Unfortunately, the vast majority of the daily reports, which were in defendant’s possession and under his control, were destroyed approximately two years after this litigation began. Despite a court order prohibiting defendant from destroying, altering or otherwise modifying any of the partnership’s books and records, defendant’s son cleaned his parents’ attic, while the latter two were vacationing, resulting in the disposal of several boxes containing daily reports. According to the boy’s testimony, he was instructed to clean the garagg and attic by his mother, who testified she acted without consulting defendant.

The parties stipulated at trial that there would be no accounting of the partnership’s financial affairs prior to 1957. Thus, the trial court’s judgment was based upon the partnership’s financial status from 1957 through June 1980. In response to the court’s order requiring defendant to account for this period, defendant produced books, records, bank statements, and tax returns which may, at best, be described as contradictory and incomplete. Such daily reports as were available were mainly copies which plaintiff had fortuitously made of reports which he had received prior to trial but which were returned by him and were among those destroyed. To exacerbate matters further, defendant’s bookkeeping practices were not in accord with generally accepted accounting principles.

Although neither party could provide precise calculations, both submitted memoranda and affidavits based upon the available evidence indicating the manner in which the income should be computed. Defendant’s total figures varied from approximately $433,600 to $487,000, whereas plaintiff asserted that defendant’s figures should be increased by approximately $527,000, resulting in a total in excess of $1 million. The estimated reported income (tax returns for four or five years were not produced and were no longer, available from the Internal Revenue Service) was approximately $424,000. The trial judge, who succeeded the originally assigned judge and whom the parties stipulated should decide the case on the basis of the transcripts and any additional hearings, determined that the accounting filed by defendant for the years 1957 through June 30, 1980, did not accurately reflect the net income of the partnership. Rather, the court found that the actual net income was $750,000. Further, .Jpased upon admissions in the record, the court found that defendant had drawn $88,000 from partnership funds in excess of that drawn by plaintiff. The court held, however, that defendant was entitled to compensation in the amount of $65,000 for the period from 1974 to June 30, 1980. The final award was accordingly based upon these figures with adjustments made for other assets of the partnership as well as money paid on property jointly owned.

Defendant appealed, contending, inter alia, that the trial court’s determination regarding the net income of the partnership was against the manifest weight of the evidence. Plaintiff cross-appealed, arguing that the award should have been based upon an actual income in excess of $1 million. In addition, plaintiff argued that defendant was not entitled to the $65,000 compensation award. The appellate court, accepting one of defendant’s arguments, reversed and dismissed plaintiff’s petition for an accounting. It held that, notwithstanding defendant’s duty to account, based upon the available incomplete evidence as well as the unreliability of the tax returns, plaintiff had failed to demonstrate an amount to which he was entitled. Although doubting the reliability of the daily reports, the court stated that once those documents were “innocuously swept away,” an accounting became not only impractical but unattainable, and it was thus impossible to compute how much was due either party.

In our judgment the basic flaw in the appellate court’s reasoning is its mischaracterization of the consequences of the breaches of defendant’s fiduciary duties and the destruction of the daily records which the court had ordered him to preserve. Those records were in defendant’s sole possession and control, and while the defendant’s proof indicates he did not know they were being destroyed, it is clear that he had not informed his family of their importance and the necessity^ of their preservation. Plaintiff’s inability to be more specific in his proof is the direct result of the breach of defendant’s obligations under the court order as well as his failure to adequately discharge his fiduciary duties.

The basic partnership principles involved here are well settled. A fiduciary relationship existed between the partners and embraced all matters relating to the partnership business; each was bound to exercise the utmost good faith and honesty in all dealings and transactions relating to the partnership. (Rizzo v. Rizzo (1954), 3 Ill. 2d 291, 302; Bakalis v. Bressler (1953), 1 Ill. 2d 72, 78-79; Einsweiler v. Einsweiler (1945), 390 Ill. 286, 293; see also Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 437-38.) As the managing partner who was admittedly responsible for virtually all of the financial aspects of the partnership, defendant had a duty, as trustee, to maintain regular and accurate records and to account for partnership transactions. (Altschuler v. Altschuler (1951), 410 Ill. 169, 177-78, 196-97; see also Bakalis v. Bressler (1953), 1 Ill. 2d 72, 78-79; Einsweiler v. Einsweiler (1945), 390 Ill. 286, 293; Wylie v. Bushnell (1917), 277 Ill. 484, 491; Ill. Rev. Stat. 1981, ch. 106½, pars. 20, 21(1), 22.) All doubts and obscurities created by his own negligent failure to keep adequate records were properly resolved against him by the trial court. Altschuler v. Altschuler (1951), 410 Ill. 169, 196-97; Crimp v. First Union Trust & Savings Bank (1933), 352 Ill. 93, 102; Crane & Bromberg, Partnership sec. 66, at 384 (1968).

Despite the imprecise nature of some of plaintiff’s proof, there was sufficient evidence from which the trial court could fashion an equitable decree, and we do not believe, as the appellate court apparently did, that in these circumstances the trial court was required to detail the nature or method of its calculations. Thus, unlike the case relied upon by the appellate court (Fineman v. Goldberg (1928), 329 Ill. 507), the evidence here, although voluminous, is not in such a state of uncertainty that it is impossible to determine whether any amount is due. We note, too, that in Fineman, although the defendant did obstruct the effort to state an account, plaintiff’s failure to keep records during his tenure as managing partner also contributed to the problem. See also Donaldson v. Donaldson (1908), 237 Ill. 318; Vermillion v. Baily (1862), 27 Ill. 230.

Defendant’s argument here that “right or wrong” the only concrete evidence available shows that net income was approximately $546,143 ignores the record and the applicable fiduciary principles. Based upon the available books and records, the testimony and reports of two accountants, the testimony of the parties, and the reasonable inferences from the evidence, the trial court could have reasonably concluded that income was substantially greater than defendant contended. Indeed it was evident that the tax returns were not accurate, as the appellate court (whose statement of facts has been adopted by defendant in this court) conceded. The trial court had evidence from which it could determine the approximate amount of the understatement for the years 1971-74. Further, the court could well have rejected much of defendant’s evidence and testimony concerning the period from 1974-80, given the absence of any daily reports (which he no longer prepared) or other supporting documents to verify actual income, and the obvious disparity between the profits defendant claimed and the known profits for the period in which he admitted the understatements. Too, the probative value of defendant’s explanation concerning his change of accounting methods and his testimony concerning the accrual method upon which he had previously operated was not great. Even assuming that he had attempted to follow that method in previous years — which an accountant commissioned by the court was unable to verify from records which seemed to indicate the contrary — his methods were inconsistent with accepted accounting principles. Thus, had the court, based upon this evidence, determined that defendant continued to understate income during the years 1974-80, albeit in a somewhat lesser amount, it could have reasonably concluded that the net income of the partnership over the period in question was $750,000. While we express no opinion on defendant’s testimony concerning his blamelessness in the destruction of the daily reports, we do point out that had defendant preserved those records as he was ordered to do, he might have been able to overcome or rebut some of the presumptions which were resolved against him. His inability to do so is the result of his own handling of the partnership’s affairs. See Altschuler v. Altschuler (1951), 410 Ill. 169, 197.

Defendant’s alternative position that plaintiff was guilty of laches is unpersuasive. He argues that he should not have been required to account for net profits for any period prior to 1966. In rejecting a similar claim in Einsweiler v. Einsweiler (1945), 390 Ill. 286, 292, this court stated that “[t]he general rule, subject to few exceptions, is that an action for a partnership accounting cannot be brought until the partnership has been dissolved. [Citations.] So long as a partnership continues, failure to demand a partnership accounting does not amount to laches. [Citations.]” (Accord, Korziuk v. Kor ziuk (1958), 13 Ill. 2d 238, 242; see also Rizzo v. Rizzo (1954), 3 Ill. 2d 291, 303-04.) Since plaintiff instituted his action for an accounting within a few months following the dissolution and the partners’ unsuccessful attempt to resolve their differences, he is obviously not guilty of laches, and the trial court properly ordered defendant to render the accounting.

As we have indicated, the trial court had sufficient evidence from which it could determine the approximate net income of the partnership, and its finding in the amount of $750,000 is not against the manifest weight of the evidence. Given the difficulties of proof, which were largely of defendant’s making, the court’s finding is not an unreasonable resolution of the parties’ conflicting claims. While the trial court undoubtedly relied, to some extent, on plaintiff’s evidence concerning the proper method by which to increase the income beyond that actually reported, the court was not required to accept plaintiff’s suggestion that defendant understated income over the entire period from 1957 to June 1980 in a consistent manner. Indeed, the court might well have concluded that the income could not have been substantially understated for most of the 1960’s if it accepted the evidence which indicated that profits would have been insignificant during this period.

Plaintiff’s final argument is that defendant was not entitled to compensation for operating the grocery store from 1974 to June 30, 1980. His point is well taken. In the absence of an agreement, “[n]o partner is entitled to remuneration for acting in the partnership business, except that a surviving partner is entitled to reasonable compensation for his services in winding up the partnership affairs.” (Ill. Rev. Stat. (1981), ch. 106½, par. 18(f); see In re Estate of Barbera (1973), 55 Ill. 2d 235; Bach v. Bach (1940), 373 Ill. 442, 445; 1 S. Rowley, Partnership 484-98 (2d ed. I960).) In this case, there was no agreement, defendant was not a “surviving” partner, and he did not “wind up” the partnership’s affairs following the rightful dissolution, as it was his duty to do. No compensation is allowed if a partner improperly continues the business instead of winding it up. (Crane & Bromberg, Partnership sec. 83, at 474 (1968); Wickstrom v. Davis (1957), 211 Or. 254, 315 P.2d 597.) In those instances where compensation has been allowed, it was clear that the business was continued by consent or there were other considerations making such an equitable allowance just. (E.g., Timmermann v. Timmermann (1975), 272 Or. 613, 538 P.2d 1254; Vangel v. Vangel (1955), 45 Cal. 2d 804, 809, 291 P.2d 25, 28.) In addition to the reasons already stated, we believe that such an allowance would be inappropriate here since the evidence established that there were several years in which plaintiff also devoted his full-time services to the partnership for which he was not compensated. Absent an agreement, courts will not attempt to equalize compensation commensurate with services (Bach v. Bach (1940), 373 Ill. 442, 445; Brownell v. Steere (1889), 128 Ill. 209, 212; Burgess v. Badger (1888), 124 Ill. 288, 301-02); accordingly we will not do so here.

For the reasons stated, the appellate court’s judgment is reversed. Since his case has been in litigation for nearly nine years, in lieu of a remand, we affirm the circuit court’s judgment insofar as it granted judgment to plaintiff for $122,690 and costs, and we enter judgment here for plaintiff for an additional amount of $32,500 and costs. In re Estate of Barbera (1973), 55 Ill. 2d 235, 239-40.

Appellate court reversed; circuit court affirmed; additional judgment entered here.


author: JUSTICE GOLDENHERSH

text:
    (No. 55900.
    JANET DOYLE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Caterpillar Tractor Company, Appellee).

      Opinion filed January 24, 1983.
    Rehearing denied April 8, 1983.

      James C. Serkland, of Scheele, Serkland & Boyle, Ltd., of Chicago, for appellant.
    Robert E Fahey, of Peoria, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that while employed by respondent, Caterpillar Tractor Company, decedent David Doyle suffered accidental injuries which caused his death. She awarded worker’s compensation to petitioner, decedent’s widow, for the benefit of the widow and their two children. On review the Industrial Commission reversed, finding that petitioner failed to prove that decedent’s injuries arose out of and in the course of his employment by respondent. On certiorari the circuit court of Macon County confirmed the decision of the Industrial Commission, and petitioner appealed (87 Ill. 2d R. 302(a)).

Decedent worked as a welder at respondent’s Decatur plant. At the end of his night shift he mounted his motorcycle and proceeded to the nearest exit from respondent’s company-owned parking lot. The exit from respondent’s plant forms the east portion of the intersection of 27th Street and Pershing Road. Both Pershing Road and 27th Street are four-lane divided streets; 27th Street runs north and south; Pershing Road runs east and west and ends at the intersection of 27th Street and Pershing Road. The intersection is controlled by automatic electric traffic signals owned and maintained by the city of Decatur. The signals controlling the exit-entrance to respondent’s plant are on land owned by respondent. On the night of the accident the weather was clear and the pavement was dry. The intersection was well lighted and the traffic signals were all functioning properly. The roadways were free from defects.

Decedent was the first in line in the left-turn lane. Next to him, in the center lane, was an automobile driven by Alfred Clark, a fellow employee. When the light turned green, decedent “got a good jump” with his motorcycle. He was “leaning into a left turn” when an automobile traveling northbound on 27th Street failed to stop for the red light and struck decedent. It threw him into Alfred Clark’s automobile.

Petitioner introduced evidence concerning the design and construction of improvements in this intersection. William Sands, the public works director of the city of Decatur, testified that the city determined that public funds should be expended to widen 27th Street from two lanes to four lanes and to construct turn bays and ramps at the intersection of 27th Street and Pershing Road. The city and respondent held preliminary meetings to discuss respondent’s involvement in these improvements. The city sought “input” from respondent concerning the proposed plans and asked that it donate 10 feet of land which it owned on the east side of 27th Street and pay for a portion of the improvements. Exhibit “A” to the Decatur ordinance approving the cost-sharing agreement between respondent and the city enumerates the portions of the improvements that were “to be paid for by Caterpillar,” including improvements made on its property, left turn lanes leading into its plant, the northwest ramp of Pershing Road turning onto northbound 27th Street, and the turn signals which control traffic leading into the plant. Respondent paid approximately $108,000 of the total cost of the improvements of approximately $694,000. At respondent’s request, the city agreed to use concrete light standards instead of wooden poles if respondent paid for the additional cost. Respondent had earlier used equipment manufactured at its plant to remove snow from 27th Street so that its employees could get to work during heavy snowfalls. Respondent requested that after the improvements were completed it be permitted to continue snow-removal operations around the intersection. Respondent voluntarily mowed the grass median dividing the northbound and southbound lanes of 27th Street to help give the plant a better appearance.

The decision of the Industrial Commission on review included the following findings of fact and conclusions of law:

“1. Doyle was killed when he was hit by a car traveling on a public street. Doyle had finished his work at the time of his accident and was not engaged in any activity for his employer.
2. Petitioner was not required to exit by respondent into a dangerous area. There were two additional exits from respondent’s plant in addition to the one through which Doyle exited. In addition, there was no showing that the intersection in which Doyle was killed was peculiarly dangerous. Doyle’s employment exposed him to no greater risk of being struck by another vehicle on a public street than any other member of the public.
3. Based on the undisputed testimony, the actual maintenance and control of the intersection is the City of Decatur’s responsibility. Although respondent voluntarily removed snow and mowed the median strip, respondent was under no obligation to do so. Although respondent did pay a share of the costs and was involved with the design of the intersection improvement, that was over 10 years ago and there is absolutely no testimony that the design of the intersection contributed to the accident or that the snow removal and mowing activities of respondent contributed to the accident.”

Much of petitioner’s argument is directed toward the many decisions of this court which, with reasonable consistency, have held that accidental injuries occurring on the premises while an employee is traveling to or from work are compensable, while injuries occurring off the premises of the employer are not. (Butler Manufacturing Co. v. In dustrial Com. (1981), 85 Ill. 2d 213, 216; Hess v. Industrial Com. (1980), 79 Ill. 2d 240, 242; Eisenberg v. Industrial Com. (1976), 65 Ill. 2d 232, 233; Reed v. Industrial Com. (1976), 63 Ill. 2d 247, 248-49; Osborn v. Industrial Com. (1971), 50 Ill. 2d 150, 151; Hiram Walker & Sons v. Industrial Com. (1968), 41 Ill. 2d 429, 430; Browne v. Industrial Com. (1967), 38 Ill. 2d 193, 194; Northwestern University v. Industrial Com. (1951), 409 Ill. 216, 221-22.) While it must be conceded that this distinction is somewhat arbitrary, the rule has a logical basis and is easily administered. The rule is premised on the logic that “while the employee is on the employer’s premises, the connection with the employment environment is physical and tangible.” (1 A. Larson, Workmen’s Compensation sec. 15.12, at 4-7 (1978).) The rule is easily applied, and supposedly more equitable rules create unmanageable administrative problems. (1 A. Larson, Workmen’s Compensation sec. 15.12, at 4 — 7 to 4 — 18 (1978).) This court has long recognized the advantages of adhering to this rule and the undesirability of adopting some less manageable rule. Payne & Dolan v. Industrial Com. (1943), 382 Ill. 177,183.

Petitioner argues that although respondent did not own the public street on which decedent was killed, it “provided” this exit to its plant, decedent was in fact injured on respondent’s premises, and the injury is therefore compensable. Petitioner argues, too, that because respondent quitclaimed some of its land to the city for the expansion of 27th Street, participated in the planning of the improvements, chose certain types of lighting standards used to illuminate the intersection, and contributed more than $108,000 to help finance the improvement, and because the improvement benefited respondent in providing more efficient entrance and exit for its employees, the intersection was provided by respondent for use by its employees. In support of her contention petitioner cites De Hoyos v. Industrial Com. (1962), 26 Ill. 2d 110, and Chmelik v. Vana (1964), 31 Ill. 2d 272. These cases are distinguishable because in each case the employer was exercising continuing dominion over the parking lots which were provided for the employees. Here, respondent gave up all dominion over 27th Street more than 10 years earlier, after the land was deeded to the city for use as a public street and the alterations to this intersection were completed.

Petitioner argues that because respondent uses its own snow-removal equipment to remove snow from 27th Street during the winter and because respondent mows the grass median on 27th Street for the purpose of improving the appearance of the plant, respondent continues to exercise control of 27th Street. This court has rejected the contention that the voluntary maintenance of public property is sufficient to show control by the employer. Reed v. Industrial Com. (1976), 63 Ill. 2d 247, 249-50.

The rationale behind the “premises rule” supports the conclusion that 27th Street cannot be considered premises provided by the employer. It is difficult, if not impossible, under petitioner’s theory, to determine how much of 27th Street, a heavily traveled public thoroughfare, should be considered the premises provided by respondent. Under the “premises rule” the connection with the employment environment is physical and tangible. This court has reasoned that an employee is subject to greater risk than that to which the general public is exposed (Deal v. Industrial Com. (1976), 65 Ill. 2d 234, 239; Eisenberg v. Industrial Com. (1976), 65 Ill. 2d 232, 234) when on the employer’s premises because ordinarily only employees use the parking lot (Chmelik v. Vana (1964), 31 Ill. 2d 272) and the employer is responsible for the maintenance and control of the parking lot (De Hoyos v. Industrial Com. (1962), 26 Ill. 2d 110, 113). Here, the intersection was used by the public, not exclusively by respondent’s employees, and the public was subject to the same degree of risk. For the same reasons which compelled adherence to the “premises rule,” we decline to hold that an employer’s contribution to the improvement of a public street or occasional maintenance of that street extends the premises of the employer to a public street.

Petitioner argues that decedent’s injuries are compensable because the employer’s exit or entrance created a special risk to which the general public was not exposed. Petitioner argues that this court’s decisions in Bommarito v. Industrial Com. (1980), 82 Ill. 2d 191, and Deal v. Industrial Com. (1976), 65 Ill. 2d 234, support her position. We disagree. In Bommarito, the employer required all employees to enter and exit the store through the rear door. The rear door opened into an alley, and claimant was injured when she stepped in a pothole in the alley. In Deal, the employer’s office’s front door opened immediately onto the sidewalk. (65 Ill. 2d 234, 236.) Claimant was struck by a bicyclist when he stepped through the door. In both cases the court held that the accident arose out of and in the course of employment because the employee was exposed to a risk not normally encountered by the general public. (Bommarito v. Industrial Com. (1980), 82 Ill. 2d 191, 197-98; Deal v. Industrial Com. (1976), 65 Ill. 2d 234, 239.) Here, nothing in the record suggests that the exit at the intersection of 27th Street and Pershing Road was unusually hazardous. The intersection was well lit and controlled by traffic signals, and visibility was clear for a considerable distance in each direction. The record clearly supports the Commission’s finding that the intersection was not peculiarly dangerous.

Petitioners argue that a special exception to the premises rule should be adopted for this type of situation because the employee suffered injuries as the result of the hazard created by the employer’s business. Petitioner notes that Professor Larson has defended the “premises” rule on the basis that it is impractical to draw any other line, but notes that certain special exceptions could be made without denigrating the rule:

“What is needed is a working principle which will serve as a guide to identify those exceptional cases in which the purposes of Workmen’s Compensation require some departure from the literal premises concept, and in which it is administratively practical to interpret and apply the exception.” (1 A. Larson, Workmen’s Compensation sec. 15.13, at 4-18 (1978).)

Petitioner cites Chmelik v. Vana (1964), 31 Ill. 2d 272, 280, for the proposition that the “mass and speedy exodus” of employees from the employer’s parking lot creates a special risk to which the public is not subjected. Petitioner argues that there is no logical reason why an injury caused by a mass and speedy exodus of employees should only be compensable if it occurs on the employer’s premises, noting that Deal and Bommarito have allowed compensation off the premises where the employee is exposed to a greater risk than that to which the general public is subjected. We need not consider this contention for the reason it was not the “mass and speedy exodus” which exposed decedent to a greater risk of being struck by a driver who failed to stop for a red light. Chmelik v. Vana (1964), 31 Ill. 2d 272, is distinguishable. In Chmelik, the employee was struck by a co-employee who was also leaving work at the same time. The rationale of the decision is that the “mass and speedy exodus” resulted “in a degree of exposure to the common risk beyond that to which the general public would be subjected.” (31 Ill. 2d 272, 280.) Here, decedent was not killed by a fellow employee also leaving the premises at the same time along with an entire shift but rather was killed on a public street by a drinking driver who failed to obey a traffic signal. The “mass and speedy exodus” of respondent’s employees did not contribute to decedent’s accidental death, nor did it enhance his risk of being struck by a vehicle on the public streets. On this record, the adoption of the rule proposed by petitioner would not aid her.

We have reviewed the cases from other jurisdictions cited by petitioner and find them inapposite. In any event, in view of long-standing and overwhelming precedent from this court, we find it unnecessary to consider them. See Northwestern University v. Industrial Com. (1951), 409 Ill. 216, 222.

The judgment of the circuit court of Macon County is affirmed.

Judgment affirmed.