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Theodosis v. Keeshin Motor Exp. Co.





Appeal by defendants from the Circuit Court of Cook county; the Hon. THOMAS J. LYNCH, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1949. Judgment affirmed in part; reversed and remanded in part with directions. Opinion filed May 11, 1950. Released for publication May 29, 1950.


This is an appeal by the defendants, Keeshin Motor Express Co., Inc., and Jacob Diel, from judgments on verdicts for $15,000 in favor of the administratrix-plaintiff for the wrongful death of the decedent, and for $3,000 for personal injuries sustained by the plaintiff, Elias Theodosis. The suit arose out of an accident which occurred at the intersection of Clinton and Taylor streets, in the City of Chicago, on November 1, 1946. A truck operated by the defendant, Keeshin Motor Express Co., Inc., driven by its employee, Jacob Diel, collided with a taxicab operated by defendants, Perrone and Bugajski. Decedent, Thomas Theodosis, and plaintiff, Elias Theodosis, his son, were passengers in the taxicab.

The principal question is whether the judgment for $15,000 can be sustained on the assumption that the Injuries Act of 1947, which increased the limit of recovery from $10,000 to $15,000, is applicable retroactively to this case. (Ill. Rev. Stat., ch. 70, par. 2 [Jones Ill. Stats. Ann. 38.02].) The specific question has not been passed upon by any court of review in Illinois. There have been a number of decisions by trial judges. In Monroe v. Chase, 76 F. Supp. 278, JUDGE WHAM held that the amendment was one of substance and was not retroactive.

Defendants rely on the opinion of JUDGE ELMER J. SCHNACKENBERG of the circuit court of Cook county in a death case, Haut, Admx. v. McGlone, 46 C 10366, and the opinions of JUDGE WILBERT F. CROWLEY of the superior court in four cases, 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, on similar questions growing out of two amendments to the Dram Shop Act passed at the 1949 session of the legislature, one placing a limitation of $15,000 on the amount of recovery, where formerly there was no limitation, and the other reducing to two years the time within which an action may be filed. Plaintiffs rest their case on an opinion of JUDGE HARRY M. FISHER of the circuit court of Cook county in Wojcik v. Roeters, 47 C 10479. That opinion presents the opposing point of view. The able studies of these trial judges have been of great help to this court.

It is the position of defendants, supported by the decisions of JUDGES SCHNACKENBERG and CROWLEY, that a change in the limit of recovery is a substantive change; that the legislature is without power to make the change retroactive; that in any event, sec. 4, ch. 131 [Jones Ill. Stats. Ann. 27.16], of the Illinois Revised Statutes, providing that no Act of the legislature shall be construed to affect "any right accrued, or any 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" is applicable to this case; that if it is pertinent to inquire into the intention of the legislature, the presumptions are all against such a construction, and that there is nothing in the language of the amendment to indicate that it should operate retrospectively.

It is the position of plaintiffs, supported by the decision of JUDGE FISHER, that an action for wrongful death was unknown to the common law; that it was created by statute and may be destroyed by statute; that all claims in the event of a repeal of the Act, whether in suit or otherwise, thereupon fall; that, therefore, rights derived from the statute are not vested and are not protected against retroactive legislation; that correlatively, a defendant does not have a vested right to exemption against increased liability; that the only question is the effect of sec. 4, ch. 131; that the change in the amount of recovery was procedural and did not affect any right accrued or claim arising before the new law took effect; and that it was the intention of the legislature to make the law retroactive, which intention is derived from the fact that saving clauses against retroactivity were explicitly incorporated in previous legislation.

These arguments present many problems concerning the scope of the principle, its application to the right of defendants to exemption from greater liability, and whether this limitation on liability is substantive, or a "remedy" or "proceeding."

The doctrine that legislation must be prospective in its application is deeply imbedded in English and American law. It is traced by historians to Coke, who derived it from Bracton, who in turn derived it from Roman and Greek law. It was incorporated in restricted form in the American Constitution, was announced first by Kent and Story, and became a principle of the American courts. In Illinois, it was reflected in 1858 in an opinion by JUSTICE CATON in the case of Seegar v. Seegar, 19 Ill. 121, and later, in opinions by JUSTICES CARTWRIGHT, CARTER, FARMER, and others, in cases which we will discuss.

A few states have express prohibitions of retroactive laws in their constitutions (Colorado, Georgia, Idaho, Missouri, Montana, New Hampshire, Ohio, Tennessee, and Texas). Illinois does not have a constitutional prohibition, but has embodied the principle in sec. 4, ch. 131, supra.

The first exposition of the principle in the United States was by CHANCELLOR KENT in the case of Dash v. Van Kleeck, 7 Johns (N.Y.) 477, 5 Am. Dec. 291. He summarized the doctrine and its antiquity in this pithy language (p. 308): "It is a principle in the English common law, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect: Nova Constitutio futuris, Bracton and Coke; and in Gilmore v. Shuter, 2 Mod. 228, 310, 2 Inst. 292. . . . There has not been, perhaps, a distinguished jurist or elementary writer within the last two centuries, who has had occasion to take notice of retrospective laws, either civil or criminal, but has mentioned them with caution, distrust or disapprobation." (p. 311.) He held that a defense allowed a sheriff charged with the escape of a prisoner held under a ca. sa. did not apply to a prior action. JUSTICE KENT stated as a principle that the objection based on retroactivity "relates not merely to future suits, but to future, as contradistinguished from past contracts and vested rights." The vested right which CHANCELLOR KENT there protected was the right of plaintiff to bring a suit free of the defense which defendant had under the new statute. JUSTICE YATES, in a contrary opinion in the same case, considered the statute as correcting an existing injustice and that therefore it ought to be applied to existing litigation. He did not consider that a "vested right" entitled to protection against legislation, was involved. This presents the underlying ambivalence which has always troubled the courts in their consideration of this question. Reacting powerfully against the absolutism which could make an act, innocent at the time of its commission, a crime or source of liability, courts at first saw nothing but evil in the retroactive application of law. But on the other hand, if a good law corrected an evil, courts were later tempted to apply it as extensively as possible.

JUSTICE STORY in 1814 approved Kent's decision, saying: "Upon principle, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past, must be deemed retrospective. . . ." Society for the Propagation of the Gospel, etc. v. Wheeler, 2 Gal., C.C. 105, 139. (Italics ours.)

The Supreme Court of Illinois in the early case of Seegar v. Seegar, supra, had under consideration a defense to a note on the ground that it was usurious under the statute in effect at the time the note was given. A subsequent Act had rendered the transaction nonusurious. The court sustained defendant's position that he had a vested right in the defense of usury. In Parmelee v. Lawrence, 44 Ill. 405, 414, the court had under consideration a provision of the usury law that "no portion of the interest which the debtor may have voluntarily paid shall be deducted from the principal." It held that this provision of the Act could have only prospective operation. However, it did hold that a provision of the law under which the legislature abolished a penalty would be given a retroactive effect, since there is no vested right in a penalty. In Bauer Grocer Co. v. Zelle, 172 Ill. 407, the court held that a statute reducing the legal interest rate from 8 per cent to 6 per cent would not be given retrospective operation, saying: "The rule is that statutes are prospective, and will not be construed to have retroactive operation unless the language employed in the enactment is so clear it will admit of no other construction." (p. 414.) Other cases supporting this position are: Steger v. Traveling Men's Building & Loan Ass'n, 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; and Miner v. Stafford, 326 Ill. 204.

In Beutel v. Foreman, 288 Ill. 106, the court said that a vested right may include "a title, legal or equitable, to the present or future enjoyment of property or to the present or future enjoyment of the demand, or a legal exemption from a demand made by another." (Italics ours.)

In Wall v. Chesapeake & O.R. Co., 290 Ill. 227, the court retroactively applied an Act of 1903, prohibiting the bringing of an action in this State to recover for a death occurring outside the State. The court held there was no vested right ...

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