{ "id": 5125649, "name": "Stanley Orlicki, Sr., and Anna Orlicki, Appellants, v. John F. McCarthy and Margaret M. McCarthy et al., Appellees", "name_abbreviation": "Orlicki v. McCarthy", "decision_date": "1954-04-20", "docket_number": "Gen. No. 46,224", "first_page": "182", "last_page": "189", "citations": [ { "type": "official", "cite": "2 Ill. App. 2d 182" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "346 Ill. 509", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5266978 ], "opinion_index": 0, "case_paths": [ "/ill/346/0509-01" ] }, { "cite": "344 Ill. 436", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5258002 ], "opinion_index": 0, "case_paths": [ "/ill/344/0436-01" ] }, { "cite": "231 Ill. App. 58", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5495232 ], "opinion_index": 0, "case_paths": [ "/ill-app/231/0058-01" ] }, { "cite": "351 Ill. App. 466", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5111036 ], "opinion_index": 0, "case_paths": [ "/ill-app/351/0466-01" ] }, { "cite": "41 N. E. 704", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "147 N. Y. 329", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2269691 ], "opinion_index": 0, "case_paths": [ "/ny/147/0329-01" ] }, { "cite": "87 Hun 406", "category": "reporters:state", "reporter": "Hun", "case_ids": [ 3543720 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nys/34/0358-01" ] }, { "cite": "124 N. W. 653", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "141 Wis. 497", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8700322 ], "opinion_index": 0, "case_paths": [ "/wis/141/0497-01" ] }, { "cite": "121 N. W. 167", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "139 Wis. 448", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 4721308 ], "opinion_index": 0, "case_paths": [ "/wis/139/0448-01" ] }, { "cite": "283 Ill. 142", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2417273 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/ill/283/0142-01" ] }, { "cite": "290 Ill. 227", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2419408 ], "opinion_index": 0, "case_paths": [ "/ill/290/0227-01" ] }, { "cite": "258 Ill. 328", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4724607 ], "opinion_index": 0, "case_paths": [ "/ill/258/0328-01" ] }, { "cite": "326 Ill. 204", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5188516 ], "opinion_index": 0, "case_paths": [ "/ill/326/0204-01" ] }, { "cite": "216 Ill. 437", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3360658 ], "opinion_index": 0, "case_paths": [ "/ill/216/0437-01" ] }, { "cite": "288 Ill. 106", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4956717 ], "opinion_index": 0, "case_paths": [ "/ill/288/0106-01" ] }, { "cite": "112 Ill. 553", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2861312 ], "opinion_index": 0, "case_paths": [ "/ill/112/0553-01" ] }, { "cite": "208 Ill. 236", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3297034 ], "opinion_index": 0, "case_paths": [ "/ill/208/0236-01" ] }, { "cite": "172 Ill. 407", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3173587 ], "opinion_index": 0, "case_paths": [ "/ill/172/0407-01" ] }, { "cite": "44 Ill. 405", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5220749 ], "pin_cites": [ { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/ill/44/0405-01" ] }, { "cite": "19 Ill. 121", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 441609 ], "opinion_index": 0, "case_paths": [ "/ill/19/0121-01" ] }, { "cite": "47 C 10479", "category": "reporters:state", "reporter": "Cow.", "opinion_index": 0 }, { "cite": "76 F. Supp. 278", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 642865 ], "opinion_index": 0, "case_paths": [ "/f-supp/76/0278-01" ] }, { "cite": "341 Ill. App. 8", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4988397 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app/341/0008-01" ] }, { "cite": "348 Ill. App. 191", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5096281 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/ill-app/348/0191-01" ] } ], "analysis": { "cardinality": 644, "char_count": 10383, "ocr_confidence": 0.544, "pagerank": { "raw": 7.744812959238101e-08, "percentile": 0.45526534558578513 }, "sha256": "b945fcb1b35205d9e5a45fc78fa938d0ae69f26188776e8f8a30216eae6e0533", "simhash": "1:d31bb07d6677ec5c", "word_count": 1776 }, "last_updated": "2023-07-14T21:56:23.997308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Stanley Orlicki, Sr., and Anna Orlicki, Appellants, v. John F. McCarthy and Margaret M. McCarthy et al., Appellees." ], "opinions": [ { "text": "Mr. Presiding Justice Schwartz\ndelivered the opinion of the court.\nPlaintiff\u2019s complaint, setting forth a cause of action under the Dramshop Act, was dismissed upon motion on the ground that the amendment to the Act passed by the 1949 session of the legislature, effective August 1949 [Ill. Rev. Stats. 1949, ch. 43, \u00a7135; Jones Ill. Stats. Ann. 68.042], 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 (Oct. 1952) 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 (No. 10691, Dec. 1953), 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.\nA similar question was before this court in Theodosis v. Keeshin Motor Exp. Co., 341 Ill. App. 8. 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 [Jones Ill. Stats. Ann. 38.02]). 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, 76 F. Supp. 278 (Judge Wham) ; Haut v. McGlone, 46 C10366 (Circuit Court Judge Schnackenberg); English et al. v. Glenn, 49 S 11540, Trust Co. v. Sales, 46 S14549, Osterling v. Sales, 46 S14550, and Marich v. Sales, 47 S1148 (Superior Court Judge Crowley) ; and Wojcik v. Roeters, 47 C 10479 (Circuit Court Judge Harry M. Fisher). Judges Wham, Crowley and S chnackenberg 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 imbedded 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 [Jones Ill. Stats. Ann. 27.16]) which provides that a new law should not be construed to repeal a former law as to any act done or \u201cany 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.\u201d 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; Steger v. Traveling Men\u2019s Building & Loan Ass\u2019n, 208 Ill. 236; Dobbins v. First Nat. Bank of Peoria, 112 Ill. 553; Beutel v. Foreman, 288 Ill. 106; Eddy v. Morgan, 216 Ill. 437; Miner v. Stafford, 326 Ill. 204; Merlo v. Johnston City & Big Muddy Coal & Mining Co., 258 Ill. 328.\nOn the other hand, in Wall v. Chesapeake & Ohio Ry. Co., 290 Ill. 227, 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 Stowe dissented from this opinion.\nIn the case of Carlin v. Peerless Gas Light & Coke Co., 283 Ill. 142 (1918), 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.\nIn deciding Theodosis v. Keeshin, 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 [Ill. Rev. Stats, ch. 70, \u00a7\u00a7 1, 2; Jones Ill. Stats. Ann. 38.01, 38.02] 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\u2019Reilly v. Utah, N. & C. Stage Co., 87 Hun 406, 34 N. Y. Supp. 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, supra, from Carlin v. Peerless Gas Light & Coke Co., supra, it is hard to see any good reason for saying to one man, \u201cYou cannot be sued for more than was provided by law at the time you committed the tort complained of,\u201d and to another, \u201cWhile your claim can be properly litigated under the old law, you are out of court under the new.\u201d\nDefendants 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 cases in which the classification of vested and nonvested rights was used in the determination of whether a statute was to be given retroactive effect. The only conclusion we could arrive at was that a vested right was one on which a statute could not operate retroactively.\nThe defendants argue that the Dramshop Act is a penal statute in derogation of the common law because it imposes a liability without fault, and that we should therefore resolve all doubtful questions against its application. They cite in support of this a case recently decided by this court, DeLude v. Rimek, 351 Ill. App. 466. What we said in that case (pp. 471-2) was that while \u201cthe Dram Shop Act imposes liability without \u2018fault,\u2019 and in that respect is punitive, we are of the opinion that as the remedy provided is compensation for damages, it is in that aspect remedial.\u201d We did not undertake in any way to pass upon the penal aspects of the Dramshop Act. Insofar as the question had a bearing on the points involved in that case, the Dramshop Act was remedial and not punitive.\nDefendants also argue that an action under the Dramshop Act is a statutory proceeding and as such should be given retroactive effect. While sometimes the phrase \u201cstatutory proceeding\u201d is used loosely to include an action such as one under the Dramshop Act, a more careful definition restricts the phrase to proceedings such as the Workmen\u2019s Compensation Act in which the statute not only creates a new right but provides for a new type of proceeding by which the right may be exercised. Neither an action for wrongful death nor a suit under the Dramshop Act is such a proceeding because, while the right does not exist independently of the statute, the proceeding for its enforcement is a regular common-law proceeding. (Reid v. Chicago Rys. Co., 231 Ill. App. 58). In Stanswsky v. Industrial Commission, 344 Ill. 436, and Playhouse Theatre v. Industrial Commission, 346 Ill. 509, the court had under consideration amendments to the Workmen\u2019s Compensation Act which did not include any provision with respect to their retrospective effect. The court, relying upon ch. 131, par. 4 of the statutes, supra, held that the amendments should not be applied retroactively. Thus even when confined to the more restrictive definition of \u201cstatutory proceedings,\u201d our courts have not consistently given retrospective effect to legislation. That the rationale of the doctrine has its weaknesses is demonstrated when we ask ourselves what the courts would do if the legislature repealed the Workmen\u2019s. Compensation Act and made the repeal retroactive.\nNotwithstanding what we have said, we feel it our duty to sustain the decision of the trial court for two reasons: First, the precedent established by Carlin v. Peerless Gas Light & Coke Co., supra, has not been specifically modified by the Supreme Court. Second, it is important to the orderly administration of justice that the question be settled by the Supreme Court. In his brief, counsel for the plaintiffs opens his argument by saying that the question is of great moment not only to the instant plaintiffs but to all the litigants in the many suits now pending in the courts of this State involving similar issues as well as \u201cto the general jurisprudence of the state in the field of retrospective effect of legislation.\u201d We concur in this and we will grant a certificate of importance if the plaintiffs should request one.\nJudgment affirmed.\nRobson, J., concurs.\nTuohy, J., took no part.", "type": "majority", "author": "Mr. Presiding Justice Schwartz" } ], "attorneys": [ "Julius L. Kabaker, of Chicago, for appellants.", "Heineke & Conklin, of Chicago, for certain ap-pellees, Albert M. Howard, of Chicago, for certain other appellees; William H. Schrader, Ralph Miller, and Charles D. Snewind, all of Chicago, of counsel." ], "corrections": "", "head_matter": "Stanley Orlicki, Sr., and Anna Orlicki, Appellants, v. John F. McCarthy and Margaret M. McCarthy et al., Appellees.\nGen. No. 46,224.\nOpinion filed April 20, 1954.\nReleased for publication May 13, 1954.\nJulius L. Kabaker, of Chicago, for appellants.\nHeineke & Conklin, of Chicago, for certain ap-pellees, Albert M. Howard, of Chicago, for certain other appellees; William H. Schrader, Ralph Miller, and Charles D. Snewind, all of Chicago, of counsel." }, "file_name": "0182-01", "first_page_order": 196, "last_page_order": 203 }