Shelton v. Woolsey

• Decision Date: 17 February 1959
• Docket Number: Gen. No. 10186
• Citation: 156 N.E.2d 241,20 Ill.App.2d 401
• Parties: Joe Ray SHELTON, by Mary Jo Shelton, his next friend, Mary Jo Shelton, Plaintiffs-Appellants, v. Harold W. WOOLSEY and Morris Fish, Defendants-Appellees. . Third District
• Court: United States Appellate Court of Illinois

Page 241

156 N.E.2d 241

20 Ill.App.2d 401

Joe Ray SHELTON, by Mary Jo Shelton, his next friend, Mary Jo Shelton, Plaintiffs-Appellants, v. Harold W. WOOLSEY and Morris Fish, Defendants-Appellees.

Gen. No. 10186.

Appellate Court of Illinois.

Third District.

Feb. 17, 1959.

Allen & Allen, Danville, for appellants.

Stifler & Snyder, Danville, for appellees.

CARROLL, Justice.

Joe Ray Shelton, a minor, by his next friend, brought this action under the Dram Shop Act to recover damages for injuries allegedly caused by an intoxicated person who had been served liquor by defendants.

Suit was filed one year and one day after the cause of action accrued. Defendants moved to dismiss the complaint on the ground that the same was not filed within the one year limitation prescribed by the Act. The circuit court sustained the motion and upon judgment being entered for defendants, this appeal was prosecuted by plaintiff.

The Dram Shop Act, upon which plaintiff's right to recover is based, as amended in 1955, contains a provision requiring "that every action hereunder shall be barred unless commenced within one year next after the cause of action accrued." Ill.Rev.Stats.1955, Chap. 43, Par. 135. Plaintiff contends that the foregoing recital as to the time within which Dram Shop actions must be commenced is a Statute of limitation that such provision and the general limitations Statute are in pari materia; and that when construed together there is manifest an intention on the part of the legislature that the one year limitation as provided under the Dram Shop Act should not apply to minors.

In considering such argument, it must be borne in mind that the rights created by the Dram Shop Act are entirely statutory. Cruse v. Aden, 127 Ill. 231, 20 N.E. 73, 3 L.R.A. 327; Dillon v. Nathan, 10 Ill.App.2d 289, 135 N.E.2d 136; Howlett v. Doglio, 402 Ill. 311, 83 N.E.2d 708, 712, 6 A.L.R.2d 790. As the court said in the latter case: "The liability imposed and the nature of the damage recoverable is of statutory origin, and is expressly and exclusively defined in the Dram Shop Act."

Plaintiff's right to sue arises from the Act and from no other source. In conferring such right, the legislature acting within its powers, saw fit to restrict the time within which such right might be exercised. This was accomplished by providing in the Act that every action thereunder shall be barred unless brought within a year after the cause of action accrued. Thus in unmistakable language, the legislature has said that any person having a right of action against a Dram Shop keeper cannot bring suit thereon after the expiration of the one year limitation. Where, as in this case, a statute creating a right not existing at common law, restricts the time within which it may be availed of, such statute is not a statute of limitations, but the time element is an integral part of the enactment. Smith v. Toman, 368 Ill. 414, 14 N.E.2d 478, 118 A.L.R. 924; Masin v. Bassford, 381 Ill. 569, 46 N.E.2d 366; Kessler v. Martinson, 339 Ill.App. 207, 89 N.E.2d 735. In Smith v. Toman, supra, the court points up the distinction between statutes of limitation and those creating a right, in which time is made an element of such right, in this language: "Statutes of limitation relate to the question of remedy by fixing a time within which a suit must be brought. Those statutes which create a substantive right unknown to the common law and in which time is made an inherent element of the right so created, are not statutes of limitation." [368 Ill. 414, 14 N.E.2d 481.]

Since the one year restriction in the 1955 amended Act is not a statute of limitations, plaintiff's argument that the same must be construed in connection with the provisions of the Limitations Act (Secs. 13, 15 and 22, Chap. 83, I.R.S.1955) is not applicable. As previously pointed out, the latter statute deals only with the subject of remedy, while the Dram Shop Act provision under consideration, relates to substantive rights. Obviously, the two Acts cannot be said to be in pari materia. Furthermore, it...