Orlicki v. McCarthy, Gen. No. 46224

Decision Date20 April 1954
Docket NumberGen. No. 46224
PartiesORLICKI et al. v. McCARTHY et al.
CourtUnited States Appellate Court of Illinois

Julius L. Kabaker, Chicago, for appellant.

Heineke & Conklin, Chicago, for John F. McCarthy, Margaret M. McCarthy, Frank Passantino, Frank Sansoni, Jozefa Galimski & Gust Galimski.

Albert M. Howard, Chicago, for Xenia & Stanley Wolanski (Wm. H. Schrader, Ralph Miller, Charles D. Snewind, Chicago, of counsel).

SCHWARTZ, Presiding Justice.

Plaintiff's complaint, setting forth a cause of action under the Dramshop Act, Ill.Rev.St.1953, ch. 43, § 95.01 et seq., was dismissed upon motion on the ground that the amendment to the Act passed by the 1949 session of the legislature, effective August, 1949, was applicable to this action. The cause of action accrued July 10, 1949, and suit was not started until September 27, 1951. The amendment reduced a five-year period of limitations to two years and hence if applied retroactively outlawed the cause of action here. In Fourt v. DeLazzer, 348 Ill.App. 191, 108 N.E.2d 599, the Appellate Court for the Fourth District in an action under the Dramshop Act held that the 1949 amendment was retroactive. In Steiskal v. Straus, ---- N.E.2d ----, the Appellate Court for the Second District held to the contrary. We are advised that a petition for rehearing has been allowed and the case is now being reconsidered.

A similar question was before this court in Theodosis v. Keeshin Motor Express Co., 341 Ill.App. 8, 92 N.E.2d 794. That case involved the amendment to the Injuries Act of 1947 which increased the limit of recovery for wrongful death from $10,000 to $15,000, Ill.Rev.St., ch. 70, par. 2. We held that the amendment was not retroactive. A number of opinions by trial judges in cases under the Injuries Act and the Dramshop Act were submitted to us. Monroe v. Chase, D.C., 76 F.Supp. 278, Judge Wham; Haut, Adm'x v. McGlone, 46 C 10366, Circuit Court Judge Schnackenberg; English et al. v. Glenn, 49 S 11540, Trust Co. v. Sales, 46 S 14549, Osterling v. Sales, 46 S 14550, and Marich v. Sales, 47 S 1148, Superior Court Judge Crowley; and Wojcik v. Roeters, 47 C 10479, Circuit Court Judge Harry M. Fisher. Judges Wham, Crowley and Schnackenberg held that the amendments were not retroactive. Judge Fisher held to the contrary. We considered these opinions and other precedents then available to us. We pointed out that the principle that legislation should be prospective in its application is deeply inbedded in English and American law. Express prohibitions against such retroactive effects have been embodied in the constitutions of some states, although not of Illinois. In our state, however, we have a statute, Ill.Rev.Statutes 1951, ch. 131, par. 4, which provides that a new law should not be construed to repeal a former law as to any act done or 'any right accrued, or claim arising under the former law * * * or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding.' There are many Illinois cases in which this principle has been discussed and sustained. Seegar v. Seegar, 19 Ill. 121; Parmelee v. Lawrence, 44 Ill. 405, 414; Bauer Grocer Co. v. Zelle, 172 Ill. 407, 50 N.E. 238; Steger v. Traveling Men's Building & Loan Ass'n, 208 Ill. 236, 70 N.E. 236; Dobbins v. First Nat. Bank of Peoria, 112 Ill. 553; Beutel v. Foreman, 288 Ill. 106, 123 N.E. 270; Eddy v. Morgan, 216 Ill. 437, 75 N.E. 174; Miner v. Stafford, 326 Ill. 204, 157 N.E. 164; Merlo v. Johnston City & Big Muddy Coal & Mining Co., 258 Ill. 328, 101 N.E. 525.

On the other hand, in Wall v. Chesapeake & Ohio Ry. Co., 290 Ill. 227, 125 N.E. 20, the court retroactively applied the Act of 1903, prohibiting the bringing of an action in this state to recover for a death occurring outside the state. In that case the Supreme Court held that plaintiff had no vested right in the proceeding when he commenced it before the statute was effective and that he commenced his action with the full knowledge that it was within the power of the legislature to declare that no such actions could be maintained in this state. Justices Dunn, Carter and Stone dissented from this opinion.

In the case of Carlin v. Peerless Gas Light & Coke Co., 1918, 283 Ill. 142, 119 N.E. 66, the court held that an amendment reducing the period within which an action for wrongful death could be brought would be given retroactive effect. That case involved the amendment to the Injuries Act of 1903 which reduced the limitation from two years to one year. It appears to have been fifteen years before the validity of that amendment was passed upon by our Supreme Court. The court held that it should be applied retroactively on the ground that an action for wrongful death was unknown to the common law, hence having been created by statute, it could be changed by statute. Justice Carter vigorously dissented from the decision of the court.

In deciding Theodosis v. Keeshin, Motor Express Co, supra, we felt there was a distinction between the retroactive application of an act limiting the time within which a death action may be brought and of an act which increased the amount of recovery. That distinction is based upon the reasoning in a number of cases that an increase in the amount recoverable against a defendant is the equivalent of imposing a new liability on him. To apply such an amendment retroactively would be the same as if the original Injuries Act providing a remedy for wrongful death had been retroactively applied to deaths prior thereto. While there are no Illinois cases, other jurisdictions have sustained the principle. Keeley v. Great Northern Ry. Co., 139 Wis. 448, 121 N.W. 167; Quinn v. Chicago, M. & St. P. Ry. Co., 141 Wis. 497, 124 N.W. 653; O'Reilly v. Utah, N. & C. Stage Co., 87 Hun. 406, 34 N.Y.S. 358, approved in Isola v. Weber, 147 N.Y. 329, 41 N.E. 704. The principle is stated negatively as being the right of a defendant to an exemption from liability in excess of the amount prescribed at the time the cause of action accrued. While this is a distinction that has been made by the courts and while it distinguishes Theodosis v. Keeshin Motor Express Co., supra, from Carlin v. Peerless Gas Light & Coke Co., supra, it is hard to see any good reason for saying to one man, 'You cannot be sued for more than was provided by law at the time you committed the tort complained of,' and to another, 'While your claim can be properly litigated under the old law, you are out of court under the new.'

Defendants contend that the right of action under the Dramshop Act does not create a vested right and hence may be modified or repealed in whatever way the legislature determines. We have made an examination of the...

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