Thompson v. Capasso, Gen. No. 47531
| Decision Date | 03 February 1959 |
| Docket Number | Gen. No. 47531 |
| Citation | 157 N.E.2d 75,79 A.L.R.2d 1304,21 Ill.App.2d 1 |
| Parties | , 79 A.L.R.2d 1304 Mamie THOMPSON and Martha Love, Appellants, v. John CAPASSO and Margaret Robinson, Appellees. . First District, Second Division |
| Court | United States Appellate Court of Illinois |
David Alswang, Schwartzberg & Barnett, Chicago, David Alswang, Chicago, of counsel, for appellants.
Heineke, Conklin & Schrader, Chicago, Roger A. Merletti, Paul H. Heineke, Chicago, of counsel, for appellees.
This is an appeal by plaintiffs from a final order dismissing a Dram Shop suit, because it was not commenced within the time limited by the Liquor Control Act (Dram Shop Act), (Ill.Rev.Stat., Ch. 43, par. 135, as amended in 1955). The trial court held that the recommencement provisions of the Limitations Act (Ill.Rev.Stat., Ch. 83, par. 24a) do not include Dram Shop actions.
This action is based on personal injuries suffered by plaintiffs on October 28, 1951. A suit filed January 29, 1952, was dismissed for want of prosecution on December 3, 1956. The instant suit was filed on May 3, 1957, and on motion was dismissed as to defendant Capasso, a tavern keeper.
It is conceded that unless a Dram Shop action is commenced within one year next after the cause of action accrued, such action is barred. Therefore, the sole question is whether actions commenced under the Liquor Control Act are encompassed within the class of cases specified in the Limitations Act, so as to permit a recommencement.
The Liquor Control Act (par. 135) provides:
"Every person, who shall be injured, in person or property by any intoxicated person, shall have a right of action * * * against any person or persons * * *; provided that every action hereunder shall be barred unless commenced within one year next after the cause of action accrued."
The provisions of Chapter 83, the Limitations Act, which are pertinent, are as follows:
Par. 15: "Actions for damages for an injury to the person * * * shall be commenced within two years next after the cause of action accrued."
Par. 24a: "In any of the actions specified in any of the sections of this act, * * * if the plaintiff be nonsuited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, * * * may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after."
Although Dram Shop actions are not specified in any section of the Limitations Act, it is plaintiffs' contention that the instant suit is essentially a personal injury action and, although it is brought under the authority of the Liquor Control Act, it is a personal injury action within the meaning of the Limitations Act, section 15, and encompassed within the specifications of section 24a.
The Liquor Control Act of Illinois grants a right of action which was unknown to the common law. From the adoption of the Act in 1874, through its re-enactment in 1934, and until 1949, there was no provision in the Act requiring the commencement of the suit within any specified time. As amended in 1949, the amount of recovery was limited, and a provision was incorporated in the Act requiring the commencement of all suits within two years next after the cause of action accrued. In 1955, additional changes were made in the Act, and the legislature reduced the time within which such an action had to be commenced, or become barred, to one year. This amendment became effective July 1, 1956, and was effective at the time of the involuntary nonsuit suffered by plaintiffs. The Act as amended in 1955, reducing the limitation period to one year, has been upheld. Huckaba v. Cox, 1958, 14 Ill.2d 126, 150 N.E.2d 832.
The liability imposed and the nature of the damages recoverable are of statutory origin and are expressly and exclusively defined in the Dram Shop Act, and the cause of action cannot be made analogous to other actions, although the Act should be liberally construed. Howlett v. Doglio, 1949, 402 Ill. 311, 318, 83 N.E.2d 708, 6 A.L.R.2d 790. The legislature, in creating the rights under the Act, imposed conditions and restrictions upon the assertion of such rights. The 1949 amendment, in a measure, effected a repeal of the old Dram Shop statutory right of action, by imposing time limitations for bringing actions under the Liquor Control Act. Orlicki v. McCarthy, 1954, 4 Ill.2d 342, 353, 122 N.E.2d 513. The amendment made the time limit placed on the commencement of the action a condition of liability and a "necessary element of the cause of action." Fourt v. DeLazzer, 1952, 348 Ill.App. 191, 197, 108 N.E.2d 599, 601.
The statute is an offer of an action on condition that it be commenced within the specified time. If the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action no longer exist, and the defendant is exempt from liability. Generally, statutes permitting a new action to be brought after the expiration of the period of limitations, upon the failure of a previous action commenced within that period, have been regarded as applying to "actions founded upon nonstatutory rights or upon rights formerly existing independently of statute." 34 Am.Jur. § 7, p. 16, § 280, p. 226.
We do not agree with plaintiffs' contention that the Orlicki case held "that the two year period is a Statute of Limitation and not a condition precedent to filing suit," and that the "court has refused to characterize that provision as a condition precedent." In that case [4 Ill.2d 342, 122 N.E.2d 519], in sustaining the retroactive application of the Dram Shop Act time limitation amendment, Justice Bristow stated, it was "on the grounds that the legislature so intended, and that it is procedural in character," and "we prefer to predicate our determination on these grounds, rather than by analogy to the Carlin case [Carlin v. Peerless Gas Light Co., 283 Ill. 142, 119 N.E. 66], which held the time requirements to be a 'condition of liability,' and which would support the same result, since our rationale has broader support in the case law, will effect greater harmony and fewer tenuous refinements among the decisions." This language appears after discussion of many cases which held that the time limitation provisions of the Dram Shop and Injuries Acts constituted a "condition of liability." The implication is that Justice Bristow would not have said that a holding of the time requirements to be a " 'condition of liability,' * * * would support the same result," if it was intended to hold the limitation period of the Dram Shop Act a statute of limitations.
In support of plaintiffs' theory that the instant suit is, in substance, for personal injuries, included with the classes of cases embraced by the Limitations Act, plaintiffs rely mainly upon Bishop v. Chicago Railways Co., 1922, 303 Ill. 273, 135 N.E. 439, and Desiron v. Peloza, 1941, 308 Ill.App. 582, 32 N.E.2d 316, 320.
The Desiron case was a Dram Shop action, decided by this court prior to the 1949 amendment, and the court said:
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