Kitching v. Ridings

• Decision Date: 01 February 1977
• Docket Number: No. 76--75,76--75
• Citation: 45 Ill.App.3d 555,359 N.E.2d 1155,4 Ill.Dec. 203
• Parties: , 4 Ill.Dec. 203 Joseph L. KITCHING, Plaintiff, v. Loeta R. RIDINGS, Defendant.
• Court: United States Appellate Court of Illinois

Page 1155

359 N.E.2d 1155

45 Ill.App.3d 555, 4 Ill.Dec. 203

Joseph L. KITCHING, Plaintiff, v. Loeta R. RIDINGS, Defendant.

No. 76--75.

Appellate Court of Illinois, Second District.

Feb. 1, 1977.

Robert D. Greenwalt, Harold Spelman & Associates, West Chicago, for plaintiff.

Gerald M. Sheridan, Jr., Wheaton, Robert F. Casey, Geneva, for defendant.

GUILD, Justice:

On October 23, 1975 plaintiff commenced this action for bodily injury which allegedly occurred on July 16, 1969 when plaintiff was bitten by a horse kept by defendant. Defendant moved to dismiss the complaint on the basis that plaintiff's action was barred under the limitation provisions of Ill.Rev.Stat.1975, ch. 83, 15, 22, as amended. The trial court granted defendant's motion to dismiss on December 2, 1975. Plaintiff appeals.

The following sequence of events is pertinent upon this appeal:

(1) July 16, 1969: Date of alleged injury.

(2) May 20, 1971: Plaintiff became 18 years of age.

(3) August 24, 1971: Effective date of the amendment of section 131 of the Probate Act (Ill.Rev.Stat. (1971), ch. 3, 131) which lowered the age of majority from 21 to 18 years for males.

(4) July 1, 1972: Effective date of the amendment of section 21 of the Limitations Act (Ill.Rev.Stat.Supp. (1972), ch. 83, 22) to conform to section 131 of the Probate Act.

(5) May 20, 1974: Plaintiff reached the age of 21.

(6) October 23, 1975: The complaint was filed.

The question to be decided herein is whether the plaintiff's cause of action is governed by the statutes in effect at the time of the alleged injury or whether either the 1971 amendment of the Probate Act or the 1972 amendment of the Limitations Act affected his cause of action.

At all times pertinent herein the general assembly has provided for a general 2 year statute of limitations for injury to the person. (Ill.Rev.Stat.1975, ch. 83, 15). At the time of the alleged injury section 131 of the Probate Act provided:

'Males of the age of 21 and females of the age of 18 shall be considered of legal age for all purposes, . . . and until these ages are attained, they shall be considered minors.'

At the same time section 21 of the Limitations Act provided:

'If a person entitled to bring an action, mentioned in the nine preceding sections, is, at the time of the cause of action accrued, within the age of twenty-one years, or if a female, within the age of eighteen years, or insane or mentally ill, or imprisoned on a criminal charge, he or she may bring the action within two years after the disability is removed.'

Effective August 24, 1971, section 131 of the Probate Act was amended to read as follows:

'Persons of the age of 18 shall be considered of legal age for all purposes, except that of the Illinois Uniform Gifts to Minors Act, and until this age is attained, they shall be considered minors.'

Thereafter, and effective July 1, 1972, section 21 of the Limitations Act was amended to read as follows:

'If the person entitled to bring an action, mentioned in the 9 preceding Sections, is, at the time the cause of action accrued, within the age of 18 years, or insane, or mentally ill, or imprisoned on a criminal charge, he or she may bring the action within 2 years after the disability is removed.' Ill.Rev.Stat.1973, ch. 83, par. 22.

In the recent case of Fisk v. Shunick (1976), 37 Ill.App.3d 81, 345 N.E.2d 194, this court was confronted with the same issue. In that case we correctly held that the plaintiff's cause of action was barred. We based our decision on the fact that the plaintiff's cause of action was not filed within 2 years of either his 18th birthday or August 24, 1971, the effective date of the amendment to the Probate Act. We reached that result by relying upon Kilgour v. Gockley (1976), 83 Ill. 109.

In Kilgour the Supreme Court was asked to construe the existing statute of limitations applicable to real actions with the existing law establishing that the minority of females ceased at the age of 18 years. The language in the statute of limitation that the Supreme Court was asked to construe is substantially similar to the language that we are asked to construe herein. The court in Kilgour, in commenting on the applicable statute of limitations stated, at page 115:

'The Statute of Limitations, relied upon by the appellant in this regard, provides that the act 'shall not extend to lands or tenements where there shall be an adverse title to such lands and tenements, and the holder of such adverse title is Under the age of 21 years, insane,' and so forth, 'provided such person shall commence an action to recover such lands within three years after the several Disabilities herein enumerated Shall cease to exist.' Cross' Statutes, chapter 24, page 102, section 10.' (Emphasis added.)

The court in Kilgour then held that the reference to 'disabilities' ceasing to exist in the statute of limitations was intended to incorporate by reference the statute setting the age of majority for females at 18 years. The period of limitations ran from the female's 18th birthday, despite the prior reference to age 21 in the limitations statute. Thus, Kilgour held that a female who turned 18 after the effective date of the statute had to bring her action within the prescribed period after her 18th birthday. For a similar holding with respect to the statutes here involved, see Earley v. Louisville & Nashville RR Co., (7th Cir. 1975), 518 F.2d 55.

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