{
  "id": 5198762,
  "name": "Mamie Thompson, and Martha Love, Appellants, v. John Capasso, and Margaret Robinson, Appellees",
  "name_abbreviation": "Thompson v. Capasso",
  "decision_date": "1959-02-03",
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    "judges": [
      "LEWE, P. J. and KILEY, J., concur."
    ],
    "parties": [
      "Mamie Thompson, and Martha Love, Appellants, v. John Capasso, and Margaret Robinson, Appellees."
    ],
    "opinions": [
      {
        "text": "JUSTICE MURPHY\ndelivered the opinion of the <?ourt.\nThis is an appeal by plaintiffs from a final order dismissing a Dramshop suit, because it was not commenced within the time limited by the Liqnor Control Act (Dramshop Act) (Ill. Rev. Stat., Ch. 43, \u00a7 135, as amended in 1955). The trial court held that the recommencement provisions of the Limitations Act (Ill. Rev. Stat., Ch. 83, \u00a7 24a) do not include Dramshop actions.\nThis 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.\nIt is conceded that unless a Dramshop 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.\nThe Liquor Control Act (\u00a7 135) provides:\n\u201cEvery 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.\u201d\nThe provisions of Chapter 83, the Limitations Act, which are pertinent, are as follows:\nSection 15: \u201cActions for damages for an injury to the person . . . shall be commenced within two years next after the cause of action accrued.\u201d\n'Section 24a: \u201cIn any of the actions specified in any of the sections of this act, ... if the plaintiff be non-suited, 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.\u201d\nAlthough Dramshop actions are not specified in any section of the Limitations Act, it is plaintiffs\u2019 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, \u00a7 15, and encompassed within the specifications of \u00a7 24a.\nThe 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 reenactment 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, 14 Ill.2d 126 (1958).\nThe liability imposed and the nature of the damages recoverable are of statutory origin and are expressly and exclusively defined in the Dramshop Act, and the cause of action cannot be made analogous to other actions, although the Act should be liberally construed. (Howlett v. Doglio, 402 Ill. 311, 318 (1949).) 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 Dramshop statutory right of action, by imposing time limitations for bringing actions tinder the Liquor Control Act. (Orlicki v. McCarthy, 4 Ill.2d 342, 353 (1954).) The amendment made the time limit placed on the commencement of the action a condition of liability and a \u201cnecessary element of the cause of action.\u201d (Fourt v. DeLazzer, 348 Ill. App. 191, 197, (1952).)\nThe 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 \u201cactions founded upon nonstatutory rights or upon rights formerly existing independently of statute.\u201d 34 Am. Jur. \u00a7 7, p. 16, \u00a7 280, p. 226.\nWe do not agree with plaintiffs\u2019 contention that the Orlicki case held \u201cthat the two year period is a Statute of Limitation and not a condition precedent to filing suit,\u201d and that the \u201ccourt has refused to characterize that provision as a condition precedent.\u201d In that case, in sustaining the retroactive application of the Dram-shop Act time limitation amendment, Justice Bristow stated, it was \u201con the ground that the legislature so intended, and that it is procedural in character,\u201d and \u201cwe prefer to predicate our determination on these grounds, rather than by analogy to the Carlin case, which held the time requirements to be a \u2018condition of liability,\u2019 and which would support the same result, since our rationale has broader support in the case law, Avill effect greater harmony and fewer tenuous refinements among the decisions.\u201d This language appears after discussion of many cases which held that the time limitation provisions of the Dramshop and Injuries Acts constituted a \u201ccondition of liability.\u201d The implication is that Justice Bristow would not have said that a holding of the time requirements to be a \u201c \u2018condition of liability\u2019 . . . would support the same result,\u201d if it was intended to hold the limitation period of the Dramshop Act a statute of limitations.\nIn support of plaintiffs\u2019 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 Rys. Co., 303 Ill. 273 (1922) and Desiron v. Peloza, 308 Ill. App. 582 (1941).\nThe Desiron case was a Dramshop action, decided by this court prior to the 1949 amendment, and the court said:\n\u201c. . . where a cause of action under this section [par. 135, Ch. 43] is for damages for an injury to the person it is governed by the 2-year statute of limitations. . . . It is apparent that par. 15 . . . applies to all actions for damages for an injury to the person.\u201d\nThe Bishop case, a wrongful death action brought under the Limitations Act, \u00a7 24a (then \u00a7 2), as more than one year had elapsed since the death sued on, held that the Limitations Act was not applicable to actions arising under the Injuries Act, to which class the action sued on belonged. The court said:\n\u201c. . . the Limitations act cannot be said to be applicable to cases arising under the Injuries act unless the right of action in such cases can be seen to be included within the classes of cases embraced by the Limitations act.\n\u201c. . . The \u2018actions specified\u2019 in the Limitations act are those named in that act. The term \u2018specified\u2019 indicates a particular and not a general class of cases.\u201d\nWe believe that the Desiron opinion must be read in the light of the statute as it existed in 1939, and that the 1949 amendment indicated that the legislature felt that the Limitations statute did not adequately limit the Dramshop Act right of action, as was stated in the Orlicki case:\n\u201cThe evil to he eliminated by the amendment was the prolonged liability for a period of five years of dram-shop owners and operators, who rarely have any actual knowledge of the events upon which their liability is based.\u201d\nTherefore, the Desiron case is not applicable to the instant case, which must be decided under the 1955 amendment.\nHowever, plaintiffs contend that the Bishop case sets forth a test, which, applied here, indicates that the provisions of the Dramshop Act time limitation provision are not to be applied where \u201cthe right of action in such cases can be seen to be included within the classes of cases embraced by the Limitations act,\u201d and as the Desiron case held that the Limitations Act \u201capplies to all actions for damages for an injury to the person,\u201d it follows that the test of the Bishop case is met and controls the character of the instant case. From our view of the Desiron case, we do not believe it can be used to meet the so-called Bishop case test.\nAn injury to the person is one of the enumerated causes of action in the Dramshop Act, but the \u201cinjury to the person\u201d is not the controlling element- \u2014 -it must be by an intoxicated person. The personal injury element is not sufficient to place it within the generally accepted class of personal injury actions, which are grounded on the negligence of another. The Dramshop action is grounded on the act of an intoxicated person and creates a right of action against persons who are not included in the common-law class of persons responsible for personal injuries. The Dramshop Act includes \u201cinjuries to means of support\u201d as another right of action based upon the intoxication of a person, or in consequence thereof. This action is not within the classes of cases specified in the Limitations Act. We do not believe that the legislature intended an interpretation which would permit a Dramshop action for personal injuries to be included, by inference, within the Limitations Act, and the same inference could not be applied generally to other causes of action arising under the Dramshop Act.\nPlaintiffs have cited a number of out-of-state cases to support their contentions, but we believe they are not applicable to the Illinois act. The decisions of this state are sufficiently determinative and should be followed. We have no right to make a distinction which the legislature did not see fit to make.\nWe believe that the legislature, by the 1949 amendment, did not intend that the provisions of the Limitations Act should be applied to causes of action filed under authority of the Dramshop Act, if \u201cthe evil to be eliminated by the amendment was the prolonged liability ... of dram shop owners and operators.\u201d Orlicki v. McCarthy, 4 Ill.2d 342.\nTherefore, the judgment of the trial court, dismissing the instant action as against the defendant, John Capasso, because it was not commenced against him within the time limited by law, is affirmed.\nAffirmed.\nLEWE, P. J. and KILEY, J., concur.",
        "type": "majority",
        "author": "JUSTICE MURPHY"
      }
    ],
    "attorneys": [
      "David Alswang, and Schwartzberg & Barnett, all of Chicago (David Alswang, of counsel) for appellants.",
      "Heineke, Conklin & Schrader, of Chicago (Roger A. Merletti, and Paul H. Heineke, of counsel) for John Capasso, appellee."
    ],
    "corrections": "",
    "head_matter": "Mamie Thompson, and Martha Love, Appellants, v. John Capasso, and Margaret Robinson, Appellees.\nGen. No. 47,531.\nFirst District, Second Division.\nFebruary 3, 1959.\nReleased for publication April 8, 1959.\nDavid Alswang, and Schwartzberg & Barnett, all of Chicago (David Alswang, of counsel) for appellants.\nHeineke, Conklin & Schrader, of Chicago (Roger A. Merletti, and Paul H. Heineke, of counsel) for John Capasso, appellee."
  },
  "file_name": "0001-01",
  "first_page_order": 11,
  "last_page_order": 18
}