text:
    (No. 50098.

      In re BENJAMIN JULIAN ROSENTHAL et al., Attorneys, Respondents.

      Opinion filed Oct. 6, 1978.

    Rehearing denied Dec. 1, 1978.

      Mary M. Conrad and John C. O’Malley, of Chicago, for the Administrator of the Attorney Registration & Disciplinary Commission.
    Barry J. Freeman, of Freeman, Atkins & Coleman, Ltd., of Chicago, for respondent Benjamin Julian Rosenthal.
    Joseph A. Lamendella, of Schippers, Betar, Lamendella & O’Brien, of Chicago, for respondent Donald S. Carnow.
   MR. JUSTICE MORAN

delivered the opinion of the court:

This disciplinary proceeding comes before us on exceptions to the report and recommendation of the Review Board of the Attorney Registration and Disciplinary Commission, which approved the hearing panel’s recommendation that respondents, Benjamin J. Rosenthal and Donald S. Carnow, be disbarred. That recommendation resulted from a complaint filed by the Administrator of the Commission against the respondents charging them with unethical conduct by their participation in and facilitation of an extortion scheme perpetrated against their client by a public official. The complaint charged that the respondents had concealed or knowingly failed to disclose the existence of criminal activity; counseled and knowingly participated in activities in furtherance of a crime; engaged in conduct that was prejudicial to the administration of justice and which adversely reflected on their fitness to practice law; and engaged in conduct which had the appearance of impropriety. Respondent Carnow was additionally charged with making false and misleading statements to Federal investigating agents.

In 1969, Rosenthal represented Joseph R. Pecord in matters concerning the purchase and use of a bank building, located in the city of Chicago and owned by the Federal Savings and Loan Insurance Corporation (FSLIC), which building Pecord intended to convert into a nursing home. Because the property was not zoned for such use, a zoning variance had to be obtained. The purchase contract, which had a closing date of July 1, 1969, was not contingent upon Pecord’s success in securing rezoning. Failure to complete the contract would result in Pecord’s forfeiture of his $50,000 down payment and other preparatory expenditures incurred by him.

In 1969, Carnow, a 26-year-old, full-time assistant Attorney General, was serving Rosenthal as a part-time associate on a space-for-service basis. In April of that year, Carnow, on Rosenthal’s behalf, visited the office of the city council’s Committee on Building and Zoning (Committee) and acquired information concerning procedures for seeking rezoning and obtaining an early hearing date. While at the Committee’s office, Carnow met Stanley Zima, the secretary of the Committee. Carnow, who had been formerly acquainted with Zima, explained the nursing home project to him. Before Carnow left, Zima offered to assist him and Rosenthal in drafting their petition. Respondents accepted Zima’s assistance. A petition was thereafter filed and a hearing date was set for June 20,1969.

On or about June 17, 1969, Carnow received a call from Zima. Zima told Carnow that their petition was doomed because the ward committeeman and several neighborhood residents were opposed to the rezoning. Zima offered to help but told Carnow it would cost their client some money.

Camow related this information to Rosenthal, and respondents arranged a meeting with Zima for the following day. At the meeting, Zima repeated to Rosenthal that which he had previously told Camow. Zima informed the respondents of a zoning ordinance which was pending before the. city council, and said that, if passed, the ordinance would permit respondents to bypass the Committee and file directly with the zoning board of appeals. Zima indicated that, to assure the ordinance’s passage, he would have to undertake, on Pecord’s behalf, “multiple obligations” of $20,000 to $30,000. Pecord could pay the money either as a political contribution or as attorney fees. Respondents rejected Zima’s suggestion and indicated that they would proceed to the Committee’s hearing on the merits of their case.

On June 20, 1969, several citizens and a ward committeeman appeared at the hearing and objected to Pecord’s petition. The Committee deferred action on the petition and thereby deprived respondents of a final order from which they could appeal. (The petition was ultimately denied.)

Rosenthal met with Pecord after the hearing and informed him that he, Rosenthal, had been forewarned that objectors would be at the hearing. Rosenthal did not tell Pecord of the conversation with Zima, but did discuss the possibility of pursuing the zoning board of appeals route should the city council pass the pending ordinance. Rosenthal suggested to Pecord that they contact FSLIC officials for an extension.

Several days after the hearing, Zima contacted Camow and told Camow that the zoning ordinance had passed. Carnmow related this information to Rosenthal, who expressed his enthusiasm at the prospects of obtaining the needed zoning variance on its merits. Rosenthal filed his zoning petition with the administrator of the zoning board of appeals and, at Pecord’s request, dictated a letter to the FSLIC requesting an extension. A limited extension was obtained.

In a series of phone calls during the next few weeks, Zima informed Carnow, in substance, that Pecord would never get his rezoning unless Pecord accepted Zima’s assistance. Zima stated that he would supply Pecord with “special zoning counsel” who would accept Pecord’s payment as “attorney fees.” Carnow related these conversations to Rosenthal, and Rosenthal, for the first time, informed Pecord of Zima’s demand.

During the interim, the zoning board of appeals administrator recommended that Pecord’s petition be denied.

Efforts toward obtaining further extensions on the contract with FSLIC failed. During the final week of July, Rosenthal and Pecord discussed Zima’s offer. Rosenthal, according to his testimony at the disciplinary hearing, counseled Pecord against agreeing to Zima’s demands and encouraged Pecord to seek further extensions to afford them time to seek review in the courts, if necessary. Rosenthal advised Pecord that if Pecord agreed to Zima’s proposal, he, Rosenthal, would have to withdraw from the case. (Thomas Gordon, an acquaintance of Pecord’s, was present during this conversation and corroborated Rosenthal’s testimony.) Pecord, however, decided to accept Zima’s offer of “assistance” in return for the promised zoning.

Rosenthal did not withdraw but, instead, instructed Carnow to inform Zima of Pecord’s decision. (Rosenthal specifically told Carnow that “If [Zima] can help us and if he can keep it down to $20,000 or less and we get the rezoning and our client doesn’t have to pay any additional monies unless we get rezoning, let’s go ahead, but we have got to act fast. Otherwise he loses everything.”) Carnow informed Zima of Pecord’s decision. As instructed, the respondents filed a petition to have the zoning board of appeals review their administrator’s adverse recommendation. A hearing date was set for August 26, 1969.

Thereafter, Rosenthal and Carnow discussed withdrawing from the case, and they agreed that, unless Zima provided Pecord with “special zoning counsel” as promised, they would withdraw. Rosenthal instructed Carnow to arrange for Zima to meet with them to inform them of the identity of the special counsel. On August 15, 1969, the three met. Zima informed the respondents that there would be no special counsel and that his “obligations” were now theirs. Rosenthal objected and indicated he would go to Federal authorities, to which Zima responded that if Rosenthal did so, he and Carnow would never again practice law in the city of Chicago.

The respondents did not withdraw, and, on or about August 26, 1969, the zoning board of appeals approved Pecord’s petition for rezoning. No objectors appeared at the hearing before the zoning board of appeals. Thereafter, Zima demanded payment. Before making payment, respondents required Zima to provide them with proof of the zoning board’s decision. Zima did so; the money was obtained, and the payment was made in Rosenthal’s law office.

In 1972, Federal agents, pursuant to alead, discovered several of Pecord’s checks which were marked “rezoning.” Carnow learned of the investigation through Rosenthal and contacted two Federal agents to arrange for a meeting. Before that meeting could take place, Camow, while at city hall, happened by chance to see Zima. Zima instructed Carnow to tell the agents that the money had been paid to a person who had since died. He threatened Carnow and Rosenthal with physical harm if they did not do as they were told. On the day prior to Carnow’s meeting with Federal agents, Carnow’s auto was set afire. (It was later learned that several such fires had occurred in Carnow’s neighborhood during the previous weeks.)

When Carnow met with the agents, he told them he knew nothing about a payoff and stated that he had had very little to do with the Pecord rezoning.

After that meeting, Carnow retained private counsel. Both Carnow and Rosenthal obtained immunity from prosecution in exchange for their testimony against Zima. Zima was convicted in the Federal district court of extortion and income tax evasion.

At the hearing before the hearing panel, several reasons for the failure to withdraw or disclose the criminal activity were offered by Camow, e.g., deference to Rosenthal’s judgment, fear for his own safety, and possible economic repercussions from within city hall. Carnow stated that he had heard of acts of violence within Zima’s ward, acts allegedly fostered or encouraged by Zima, and believed that Zima was capable of carrying through with his threats. He stated that, during the summer of 1972, he and Rosenthal had a disagreement over whether they should come forward with information regarding the extortion, but that Rosenthal had indicated he would consider any such disclosure a breach of their attorney-client relationship. Carnow admitted that he had not been forthright with the agents, but contended that, during the summer of 1972, he was under a great deal of stress. The latter statement was corroborated, to some extent, by Carnow’s psychologist.

A number of witnesses appeared on Carnow’s behalf and testified to his reputation for honesty, integrity and service to the community. Affidavits were also presented from persons who would have similarly testified if called.

Rosenthal admitted that he did not reveal the crime to prosecutorial authorities but testified that, both before and after the payment to Zima, he had informed certain FSLIC officials of the extortion scheme hopeful that they would intercede on Pecord’s behalf. (No FSLIC official, however, was called to substantiate this claim.) John A. Nordberg, an attorney who represented the FSLIC in the Pecord contract matter, testified that he had never been informed of any extortion plot against Pecord.

Like Carnow, Rosenthal offered several reasons for his failure to withdraw and his failure to disclose the crime. Among the reasons were the attorney-client confidentiality requirement, the political realities that allegedly existed at that time, and the possibility of economic or physical repercussions being brought against him or his client.

In mitigation, Rosenthal detailed his participation in professional and community service organizations. Several individuals testified as to Rosenthal’s good reputation, and affidavits from other individuals, attesting to the same, were introduced into evidence.

Among its findings of fact, the hearing panel found that respondents were retained by Pecord for the lawful, legal purpose of obtaining a zoning variance; that, on the record before them, it appeared Pecord was entitled to the requested zoning variance but that his original petition was denied because of “political implications,” that it was irrelevant that respondents had counseled their client against paying Zima’s demand since the money was, in fact, paid and respondents played an active role in such payment. The panel further found that it was “probably believable that [respondents] and their families were threatened by Zima with economic and bodily harm” and that their client was also threatened. The panel concluded that Carnow had evaded telling the truth to Federal agents, that respondents had concealed criminal activity by failing to notify proper authorities, and that they knowingly counseled, assisted and participated in conduct which resulted in the furtherance of the crime of extortion.

On review before the Review Board, respondents took exception, inter alia, to the hearing panel’s finding that they knowingly counseled, assisted and participated in conduct which resulted in the crime of extortion. The Review Board agreed with the hearing panel’s findings of fact. The Review Board held that the evidence clearly established that respondents maintained contact with the extortionist; that they freely aided the extortionist in communicating his demands to their client; and that they did not withdraw their representation of Pecord when it became apparent that he would submit to the extortion. The Review Board concluded that “Participation by an attorney in an extortion is an offense which warrants disbarment ***.”

Here, respondents maintain that they are not legally or morally responsible for their conduct inasmuch as they were the unwilling victims of Zima’s extortion demands. Their assertion that they, out of fear for their own safety and economic well-being, had no choice but to follow through with Zima’s scheme is unpersuasive. Even if we assume that some sort of veiled threat was made against the respondents during their August 15 meeting with Zima, such threat would not explain or justify respondents’ voluntary participation in the case prior to that date or their attempt to facilitate retention of “special zoning counsel” for Pecord. Furthermore, requiring the extortionist to produce proof of his misdeeds as a condition of payment does not seem the likely act of individuals acting under duress. Rather, it appears to be the act of persons seeking a guarantee that their client has received the service for which they had bargained.

The court, in United States v. Kahn (2d Cir. 1973), 472 F.2d 272, 278, aplly noted:

“Almost every bribery case involves at least some coercion by the public official; the instances of honest men being corrupted by ‘dirty money,’ if not nonexistent, are at least exceedingly rare. The proper response to coercion by corrupt public officials should be to go to the authorities, not to make the payoff. Thus, unless the extortion is so overpowering as to negate criminal intent or willfulness, we would be loath to allow those who give in to the illegal coercion to claim it as a total defense to bribery charges.”

Respondents assert, however, that had they notified authorities, their disclosure would have, at that time, fallen on politically deaf ears and could have possibly resulted in retaliation by political forces against them or their client. This is not only a wholly unacceptable excuse but, in fact, is specifically refuted, in part, by respondent Carnow’s attorney, Joseph Lamendella, who testified that, based on his past experience in the United States Attorney’s office, disclosure of Zima’s activities would have been promptly acted upon.

Corruption within government could not, in most instances, thrive but for those few attorneys, who, like respondents, are willing to tolerate such illegal activity if it will benefit their client. The practice of law is a privilege and demands a greater acceptance of responsibility and adherence to ethical standards than respondents have demonstrated. Their conduct, in facilitating and participating in the paying of money to Zima, was clearly a breach of required professional conduct. Their activities discredited the integrity of the bar and impeded the administration of justice. For these reasons, we find that discipline must be imposed.

Respondent Carnow maintains that he should be disciplined less severely than respondent Rosenthal inasmuch as Pecord was Rosenthal’s client, and he, Carnow, merely followed his employer’s directions. Respondent Carnow has apparently overlooked the fact that, during his involvement herein, he was serving as an assistant Attorney General. Despite his obligations as a law officer, he knowingly participated in and furthered conduct which he knew to be illegal, and then, further, deliberately misled Federal agents. That Carnow was under emotional stress at the time does not excuse his failure to be forthright. In mitigation, however, we recognized Carnow’s previous professional accomplishments.

We have also considered respondent Rosenthal’s evidence in mitigation and his contention that, as an attorney, he was duty bound not to abandon his client in a time of need and was obliged to avoid actions which would, potentially, cause his client harm.

One of Rosenthal’s excuses for not informing prosecutorial authorities is that such disclosure would have breached required attorney-client confidentiality. If Rosenthal, as he testified, informed certain FSLIC officials of the extortion scheme in the hope that they would intercede, it seems rather inconsistent to now argue that disclosure to some public authorities, but not to others, would constitute a breach of the confidentiality requirement. Whatever reasons Rosenthal might have had for not disclosing the criminal activity to individuals in a position to take direct action, it does not appear that scrupulous observance of an alleged attorney-client confidentiality requirement was one of those reasons. Without Rosenthal’s assistance as an intermediary, Zima would have had considerably more difficulty in carrying out his scheme. We find Rosenthal’s continued participation in the extortion plans to be without justification.

Accordingly, it is ordered that respondents be disbarred.

Respondents disbarred.

MR. JUSTICE CLARK took no part in the consideration or decision of this case.


source: Caselaw Access Project

author: MR. JUSTICE GOLDENHERSH MR. JUSTICE UNDERWOOD, MR. JUSTICE RYAN,

license: Public Domain

text:
    (No. 49589.
    STELLA WILBON, Adm’r, Appellee, v. D. F. BAST CO., INC., et al., Appellants.

      Opinion filed Oct. 6, 1978.

    Rehearing denied Dec. 1, 1978.

      Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Stephen D. Marcus, and Thomas H. Ryerson, of counsel), for appellants.
    Mel Gaines, Ltd., of Chicago (Melvin Gaines, of counsel), for appellee.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Stella Wilbon, administrator of the estate of Lonnie Wilbon, deceased, appealed from the judgment of the circuit court of Cook County entered upon allowance of defendants’, Joseph T. Mehalic and D. F. Bast Co., Inc.’s, motion to dismiss. The appellate court reversed as to the claims of two minor plaintiffs (48 Ill. App. 3d 98) and remanded the cause for further proceedings. We allowed defendants’ petition for leave to appeal.

In her four-count complaint filed pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1971, ch. 70, pars. 1, 2) plaintiff sought to recover damages for the wrongful death of Lonnie Wilbon, deceased, alleging that he left surviving him as his next of kin six minor children ranging in age from 17 years to 5 months. In their motion to dismiss, defendants stated that “a settlement was reached concerning the death of the decedent” with individuals residing in Arkansas, including, presumably, the four older children “claiming as next of kin.” Plaintiff asserts in her brief that the only claim made on her behalf is for burial expenses which she had paid and that the only beneficiaries whose claims remain undisposed of are the two minor children who, as of the date of the decedent’s death, were respectively two years and five months of age. The circuit court dismissed the action with prejudice oh the ground that having been filed three years and four months after the decedent’s death, it was barred by section 2 of the Wrongful Death Act, which in pertinent part provided that “Every such action shall be commenced within 2 years after the death of such person” (Ill. Rev. Stat. 1971, ch. 70, par. 2(c)). In reversing the judgment the appellate court held that it was the legislative intent to extend the time to bring an action under the Wrongful Death Act for beneficiaries under the age of 18 as provided in section 21 of the Limitations Act (Ill. Rev. Stat. 1971, ch. 83, par. 22).

Citing numerous authorities, defendants contend that an action for wrongful death is a statutory cause of action unknown to the common law and that the two-year limitation is a condition of the existence of the statutorily created right. They argue that “there is no reasonably debatable issue before the court. Forty years of Supreme Court precedent establishes that the two year limitation imposed by the Wrongful Death Act is a condition of the existence of a statutorily created right — a right which here has ceased to exist.”

Plaintiff contends that the issue presented in this appeal has become moot for the reason that effective October 1, 1977, the Wrongful Death Act was amended to provide:

“Every such action shall be commenced within 2 years after the death ***. However, if a person entitled to recover benefits under this Act, is, at the time the cause of action accrued, within the age of 18 years, he or she may cause such action to be brought within 2 years after attainment of the age of 18.” (Ill. Rev. Stat. 1977, ch. 70, par. 2.)

She argues that the Act is a remedial statute and the amendment is applicable to this case. Defendants respond that the amendment is prospective in effect, that at the time of the adoption of the amendment the right of action no longer existed, and that “Application of the amendment to such expired right would ** * present grave constitutional implications.” They argue that “retroactive application would be violative of defendants’ constitutional rights” for the reason that their vested right in the statute as it previously existed “simply may not be vitiated.” We need not further discuss these contentions for the reason that if the two-year limitation contained in the Wrongful Death Act was applicable, the claims of the minor children were barred prior to the effective date of the amendment and its enactment would not extend the time for filing them. Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill. 2d 161.

Although defendants are correct in their statement that in earlier opinions this court has said that the right to recovery for wrongful death did not exist at common law, that it is a creature of statute, and that the limitations provision in the Wrongful Death Act is a condition precedent to the bringing of the action, it does not necessarily follow that the claims of these minor plaintiffs are barred. The origin of the concept that there was no action at common law for the death of a human being is found in the report of the nisi prius case of Baker v. Bolton (1808), 1 Camp. 493, 170 Eng. Rep. 1033. In 3 W. Holdsworth, History of English Law 336 (3d ed. 1927) the rule as laid down by Lord Ellenborough in Baker v. Bolton is described as “obviously unjust, *** technically unsound *** and based upon a misreading of legal history.” The rule has been criticized in earlier opinions of this court. (Saunders v. Schultz (1960), 20 Ill. 2d 301, 306; Zostautas v. St. Anthony De Padua Hospital (1961), 23 Ill. 2d 326, 333.) In Gaudette v. Webb (1972), 362 Mass. 60, 284 N.E.2d 222, the plaintiff was the administrator of her husband’s estate and filed an action in wrongful death for the benefit of her minor children after the statute of limitations in the wrongful death act had expired. The superior court, finding no exception for minors applicable in the wrongful death act, dismissed the action. After reviewing the history of wrongful death actions, the Supreme Judicial Court concluded:

“[W]e are convinced that the law in this Commonwealth has also evolved to the point where it may now be held that the right to recovery for wrongful death is of common law origin, and we so hold. ***
Consequently, our wrongful death statutes will no longer be regarded as ‘creating the right’ to recovery for wrongful death. They will be viewed rather as: (a) requiring that damages recoverable for wrongful death be based upon the degree of the defendant’s culpability; (b) prescribing the range of the damages recoverable against each defendant; (c) requiring that any action for wrongful death be brought by a personal representative on behalf of the designated categories of beneficiaries; and (d) requiring that the action be commenced within the specified period of time, as a limitation upon the remedy and not upon the right. We further hold that statutes limiting the period for bringing actions for death are to be construed in the same manner as the limitations contained in G. L. c. 260, the general statute of limitations, and that in appropriate cases they may be tolled by the various provisions of G. L. c. 260.” 362 Mass. 60, 71, 284 N.E.2d 222, 229.

In Moragne v. States Marine Lines, Inc. (1970), 398 U.S. 375, 380, 26 L. Ed. 2d 339, 345, 90 S. Ct. 1772, 1777, Mr. Justice Harlan, after noting that in Mobile Life Insurance Co. v. Brame (1878), 95 U.S. 754, 24 L. Ed. 580, the court “had held that in American common law, as in English, ‘no civil action lies for an injury which results in *** death’ ” said:

“One would expect, upon an inquiry into the sources of the common-law rule, to find a clear and compelling justification for what seems a striking departure from the result dictated by elementary principles in the law of remedies. Where existing law imposes a primary duty, violations of which are compensable if they cause injury, nothing in ordinary notions of justice suggests that a violation should be nonactionable simply because it was serious enough to cause death. On the contrary, that rule has been criticized ever since its inception, and described in such terms as ‘barbarous.’ E.g., Osborn v. Gillett, L. R. 8 Ex. 88, 94 (1873) (Lord Bramwell, dissenting); F. Pollock, Law of Torts 55 (Landon ed. 1951); 3 W. Holdsworth, History of English Law 676-677 (3d ed. 1927). Because the primary duty already exists, the decision whether to allow recovery for violations causing death is entirely a remedial matter. It is true that the harms to be assuaged are not identical in the two cases: in the case of mere injury, the person physically harmed is made whole for his harm, while in the case of death, those closest to him — usually spouse and children — seek to recover for their total loss of one on whom they depended. This difference, however, even when coupled with the practical difficulties of defining the class of beneficiaries who may recover for death, does not seem to account for the law’s refusal to recognize a wrongful killing as an actionable tort. One expects, therefore, to find a persuasive, independent justification for this apparent legal anomaly.
Legal historians have concluded that the sole substantial basis for the rule at common law is a feature of the early English law that did not survive into this century — the felony-merger doctrine. See Pollock, supra, at 52-57; Holdsworth, The Origin of the Rule in Baker v. Bolton, 32 L. Q. Rev. 431 (1916). According to this doctrine, the common law did not allow civil recovery for an act that constituted both a tort and a felony. The tort was treated as less important than the offense against the Crown, and was merged into, or preempted by, the felony. Smith v. Sykes, 1 Freem. 224, 89 Eng. Rep. 160 (K.B. 1677); Higgins v. Butcher, Yel. 89, 80 Eng. Rep. 61 (K.B. 1606). The doctrine found practical justification in the fact that the punishment for the felony was the death of the felon and the forfeiture of his property to the Crown; thus, after the crime had been punished, nothing remained of the felon or his property on which to base a civil action. Since all intentional or negligent homicide was felonious, there could be no civil suit for wrongful death.
The first explicit statement of the common-law rule against recovery for wrongful death came in the opinion of Lord Ellenborough, sitting at nisi prius, in Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (1808). That opinion did not cite authority, or give supporting reasoning, or refer to the felony-merger doctrine in announcing that ‘[i]n a civil Court, the death of a human being could not be complained of as an injury.’ Ibid. Nor had the felony-merger doctrine seemingly been cited as the basis for the denial of recovery in any of the other reported wrongful-death cases since the earliest ones, in the 17th century. E. g., Smith v. Sykes, supra; Higgins v. Butcher, supra. However, it seems clear from those first cases that the rule of Baker v. Bolton did derive from the felony-merger doctrine, and that there was no other ground on which it might be supported even at the time of its inception. The House of Lords in 1916 confirmed this historical derivation, and held that although the felony-merger doctrine was no longer part of the law, the rule against recovery for wrongful death should continue except as modified by statute. Admiralty Commissioners v. S. S. Amerika, [1917] A. C. 38. Lord Parker’s opinion acknowledged that the rule was ‘anomalous *** to the scientific jurist,’but concluded that because it had once found justification in the doctrine that ‘the trespass was drowned in the felony,’ it should continue as a rule ‘explicable on historical grounds’ even after the disappearance of that justification. Id., at 44, 50; see 3 W. Holdsworth, History of English Law 676-677 (3d ed. 1927). Lord Sumner agreed, relying in part on the fact that this Court had adopted the English rule in Brame. Although conceding the force of Lord Bramwell’s dissent in Osborn v. Gillett, L. R. 8 Ex. 88, 93 (1873), against the rule, Lord Parker stated that it was not ‘any part of the functions of this House to consider what rules ought to prevail in a logical and scientific system of jurisprudence,’ and thus that he was bound simply to follow the past decisions. [1917] A. C., at 42-43.
The historical justification marshaled for the rule in England never existed in this country. In limited instances American law did adopt a vestige of the felony-merger doctrine, to the effect that a civil action was delayed until after the criminal trial. However, in this country the felony punishment did not include forfeiture of property; therefore, there was nothing, even in those limited instances, to bar a subsequent civil suit. E. g., Grosso v. Delaware, Lackawanna & West. R. Co., 50 N. J. L. 317, 319-320, 13 A. 233, 234 (1888); Hyatt v. Adams, 16 Mich. 180, 185-188 (1867); see W. Prosser, Law of Torts 8, 920-924 (3d ed. 1964). Nevertheless, despite some early cases in which the rule was rejected as ‘incapable of vindication,’ e. g., Sullivan v. Union Pac. R. Co., 23 F. Cas. 368, 371 (No. 13,599) (C.C. Neb. 1874); Shields v. Yonge, 15 Ga. 349 (1854); cf. Cross v. Guthery, 2 Root 90, 92 (Conn. 1794), American courts generally adopted the English rule as the common law of this country as well. Throughout the period of this adoption, culminating in this Court’s decision in Brame, the courts failed to produce any satisfactory justification for applying the rule in this country.” 398 U.S. 375, 381-85, 26 L. Ed. 2d 339, 346-48, 90 S. Ct. 1772, 1778-79.

The question whether limitations provisions are applicable to claims of minors has been considered with reference to other statutes. Erford v. City of Peoria (1907), 229 Ill. 546, involved section 2 of “An Act concerning suits at law for personal injuries and against cities, villages and towns,” which in pertinent part provided that any person who was about to bring an action against an incorporated city, village or town for damages on account of any personal injury was required within six months from the date of injury to give written notice to the city setting forth certain specific information. Section 3 of the Act provided that if the notice was not given as required in section 2 “any such suit brought against any such city shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing.” (Hurd’s Stat. 1905, ch. 70, par. 8.) In affirming the dismissal of the action the court said, “Statutes of this character are mandatory, and the giving of the notice is a condition precedent to the right to bring such suit, and the giving of the notice must be averred and proved by the plaintiff to avoid a dismissal of his suit.” (229 Ill. 546, 553.) In McDonald v. City of Spring Valley (1918), 285 Ill. 52, involving the same statute, the court held that the action of a minor child was not barred by reason of failure to give the notice. In Haymes v. Catholic Bishop (1965), 33 Ill. 2d 425, the court held that the notice requirement of sections 3 and 4 of the school tort liability act (Ill. Rev. Stat. 1963, ch. 122, pars. 823, 824) were not binding on minor plaintiffs.

Defendants argue that the decision in Lowrey v. Malkowski (1960), 20 Ill. 2d 280, leaves no doubt that the two-year limitations period applies to the claims of these minors. Lowrey involved the limitations provision contained in the Liquor Control Act (Ill. Rev. Stat. 1957, ch. 43, par. 135). Although the court in Lowrey said “A similar limitation in the Injuries Act has been repeatedly held to be a condition precedent to the right of recovery, which must be observed in all events” (20 Ill. 2d 280, 283-84), this court has not passed upon the precise question here presented.

The history of the Wrongful Death Act demonstrates that although the action is to be brought “by and in the names of the personal representatives of such deceased person,” the legislative intent is that the claims are those of the individual beneficiaries. From the time of its enactment in 1853 until its amendment in 1955, the Wrongful Death Act in pertinent part provided: “the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death.” 1853 Ill. Laws 97; Ill. Rev. Stat. 1953, ch. 70, par. 2.

In 1955 section 2 was amended to provide:

“*** ^he amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death ***.
The amount recovered in any such action shall be distributed by the court in which the cause is heard or, in the case of agreed settlement, by the county or probate court, as the case may be, to each of the widow and next of kin of such deceased person in the proportion, as determined by the court, that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person.
In any such action to recover damages where the wrongful act, neglect or default causing the death occurred on or after the effective date of this amendatory Act of 1955, it shall not be a defense that the death was caused in whole or in part by the contributory negligence of one or more of the beneficiaries on behalf of whom the action is brought. Provided, however, that the amount of damages given shall not include any compensation with reference to the pecuniary injuries resulting from such death, to such contributorily negligent person or persons; and provided further, that such contributorily negligent person or persons shall not share in any amount recovered in such action.” 1955 Ill. Laws 2006, 2007-08; Ill. Rev. Stat. 1955, ch. 70, par. 2.

Having provided that the contributory negligence of a beneficiary serves to bar only his claim and that the distribution of sums recovered is to be made on the basis of the percentage of dependency upon the deceased of the individual beneficiary, we question that the General Assembly intended that the claim of a minor beneficiary be extinguished by the failure of the personal representative of the deceased, whom the minor was without power to select (Ill. Rev. Stat. 1971, ch. 3, pars. 94, 96) and over whom he had no control, to timely present his claim.

There are additional considerations which bear on the question of the legislative intent.

Concerning the 1977 amendment, we must apply the general rule that an amendment creates a presumption that it was intended to change the law as it formerly existed. This presumption, however, is not controlling and maybe overcome by more persuasive considerations. (Bruni v. Department of Registration & Education (1974), 59 Ill. 2d 6; Scribner v. Sachs (1960), 18 Ill. 2d 400.) As originally proposed Public Act 80—700 (Senate Bill 1037) provided:

“Every such action shall be commenced within 2 years after the death ***. However, if a person entitled to bring an action under this Act, is, at the time the cause of action accrued, within the age of 18 years, or insane, or mentally ill, or imprisoned on a criminal charge, he or she may bring the action within 2 years after the disability is removed.”

It was amended and adopted as follows:

“However, if a person entitled — to-bring-an—action entitled to recover benefits under this Act, is, at the time the cause of action accrued, within the age of 18 years, or insane-,--ef-mentaily-id,--er-impHsened-©n-a-eriininal--eharge-,he or she may bring--tha-aetk® cause such action to be brought within 2 years after — the~disafeili-ty—is-removedafter the attainment of the age of 18.”

In decisions construing the limitations provision in the Workmen’s Compensation Act, this court considered questions similar to that presented here. The evolution of the statute and the pertinent decisions are reviewed in Johnson v. Industrial Com. (1972), 53 Ill. 2d 23, wherein the court considered whether the limitations provisions of the Workmen’s Compensation Act (Ill. Rev. Stat. 1965, ch. 48, par. 138.6(c)(3)) applied to a minor employee. The court said:

“While this section is general in its terms, even such general language has been construed to contain exceptions which reflect well-established rules of law (Walgreen Co. v. Industrial Com. (1926), 323 Ill. 194; McDonald v. City of Spring Valley (1918), 285 Ill. 52), and, given the long-established recognition of the special status of minors in the law, it must be considered ‘that a minor should not be precluded from enforcing his rights unless clearly debarred from so doing by some statute or constitutional provision.’ (Walgreen Co. v. Industrial Com. (1926), 323 Ill. 194, 197.) The legislative intent reflected by the Act is determinative, and this court has twice previously sought to discern that intent in closely related situations. Walgreen Co. v. Industrial Com. (1926), 323 Ill. 194; Ferguson v. Industrial Com. (1947), 397 Ill. 348.

In Walgreen this court decided that the unqualified term ‘incompetent’ included a minor and therefore section 8(h) of the 1919 Workmen’s Compensation Act (Smith, Ill. Rev. Stat. 1921, ch. 48, par. 145(h)) applied, and the six-month period for filing claims for compensation did not begin to run against the minor employee until a guardian had been appointed for him. Section 8(h) then read as follows:

“*** In case an injured employee shall be incompetent at the time when any right or privilege accrues to him under the provisions of this Act a conservator or guardian may be appointed, pursuant to law, and may, on behalf of such incompetent, claim and exercise any such right or privilege with the same force and effect as if the employee himself had been competent and had claimed or exercised said right or privilege; and no limitations of time by this Act provided shall run so long as said incompetent employee is without a conservator or a guardian.’ (Emphasis added.) (Smith, Ill. Rev. Stat. 1921, ch. 48, par. 145(h).)

In its next session following the Walgreen decision, the General Assembly amended section 8(h) to provide: ‘In case an injured employee shall be mentally incompetent ***.’ (Emphasis added.) Smith-Hurd, Ill. Rev. Stat. 1927, ch. 48, par. 145(h).

Subsequently this court held that a minor employee is bound by the provisions of the Act requiring notice of the accident within 30 days. (Ferguson v. Industrial Com. (1947), 397 Ill. 348.) In reaching that conclusion the court stated at pages 351-353:

‘Plaintiff in error insists that since there is no provision in the act that expressly subjects a minor’s rights to limitations of time, the common-law principles of safeguarding him against statutory limitations necessarily apply.
‘*** That the General Assembly could have excluded minor employees from the jurisdictional provisions as to notice is not doubted, but the question is rather whether the provisions of the act indicate an intention that they shall not be bound. *** Whether the General Assembly intended to make an exception as to minor’s right must be gathered from the act- itself. After the decision of this court in Walgreen Co. v. Industrial Com., 323 Ill. 194, holding that the limitation of time within which an application for an award should be made did not run against a minor so long as he was without a guardian, the General Assembly, by an act effective July 1, 1927, (Laws of 1927, pp. 507 and 517,) amended sections 8 and 24. *** The amendment of the two sections, after the decision of this court in the Walgreen case, affecting the applicability of the act to “mentally incompetents” must have been intended to have some meaning. This must be so when considered with section 5 of the act, (Ill. Rev. Stat. 1945, chap. 48, par. 142,) which provides that the “term ‘employee’ as used in this Act shall be construed to mean: *** Every person in the service of another under any contract of hire *** including *** minors who, for the purpose of this Act shall be considered the same and have the same power to contract, receive payments and give quittance therefore, as adult employees, ***.”
‘Had the General Assembly intended, in amending subsection (h) of section 8 and section 24 as above noted, to include, as exempted from the requirement as to notice, minors as well as “mental incompetents,” it must be presumed that it would have said so. *** It was evidently the intention of the General Assembly, in declaring that minor employees shall be considered the same as adult employees, to exclude them from the provision relating to mentally incompetents.’ ” 53 Ill. 2d 23, 24-26.

This record presents the converse situation. The appellate court opinion in this case was filed on April 14, 1977. In our opinion the prompt enactment of Public Act 80—700 (approved September 16, 1977, effective October 1, 1977) is persuasive evidence that the General Assembly intended that under the well-established rule of law the two-year limitation contained in the Wrongful Death Act did not apply to the claims of minors.

We are confronted here with the choice whether, because of a much criticized concept stemming from questionable antecedents, to hold that the two-year limitation is a condition of the existence of the claims of these infant plaintiffs or whether we are to follow the teaching of McDonald v. City of Spring Valley (1918), 285 Ill. 52, that “A child with a meritorious cause of action but incapable of initiating any proceeding for its enforcement will not be left to the whim or mercy of some self-constituted next friend to enforce its rights” (285 Ill. 52, 56) and hold “that a minor should not be precluded from enforcing his rights unless clearly debarred from so doing by some statute or constitutional provision” (Walgreen Co. v. Industrial Com. (1926), 323 Ill. 194, 197). We conclude that logic, justice and precedent require that we follow the latter course and, accordingly, the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE UNDERWOOD,

dissenting:

Decedent was killed while working in Chicago for Holsapple Mud-Jacking Company, Incorporated. A claim under the Workmen’s Compensation Act was filed in Illinois against Holsapple by the mothers of decedent’s six children, and an award of compensation was made for the five who were minors. Apparently within the two-year limitation period, settlement of the wrongful death claim here involved was made in Arkansas with all but the two youngest minors, who lived in Chicago with their mother. It is with their claim that we are here concerned.

Until this opinion I had regarded the settled law to be that minors were not exempted from the statutory requirement that a wrongful death action must be filed within the two-year period specified by statute. Lowrey v. Malkowski (1960), 20 Ill. 2d 280, cert. denied (1961), 365 U.S. 879, 6 L. Ed. 2d 191, 81 S. Ct. 1029. See also Wilson v. Tromly (1949), 404 Ill. 307; Metropolitan Trust Co. v. Bowman Dairy Co. (1938), 369 Ill. 222; Bishop v. Chicago Rys. Co. (1922), 303 Ill. 273; Hartray v. Chicago Rys. Co. (1919), 290 Ill. 85.

The majority quotes at length from the 1955 amendment providing that the contributory negligence of a beneficiary which would preclude his recovery did not affect other beneficiaries. That amendment is completely unrelated to the exemption issue here, and the majority’s assertion that the amendment is indicative of a legislative intent to exempt minors from the two-year filing condition is simply, in pay judgment, a non sequitur. Much more logical is the assumption, as we have so often said, that had the General Assembly intended such a result it would have said so. People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 369; General Motors Corp. v. Industrial Com. (1975), 62 Ill. 2d 106, 112; Sup v. Cervenka (1928), 331 Ill. 459, 461-62.

Lastly, there is the matter of the 1977 amendment, which does expressly exempt minors from the two-year condition. The amendment, of course, is presumed, as the majority concedes, to have been intended to change existing law. But the majority attempts to avoid that conclusion by quoting substantial portions of this court’s opinion in Johnson v. Industrial Com. (1972), 53 Ill. 2d 23, which are in my judgment simply inconsistent with the majority position here. Language such as “The amendment *** must have been intended to have some meaning” and “Had the General Assembly intended *** [to exempt] minors as well as ‘mental incompetents,’ it must be presumed that it would have said so” (73 Ill. 2d at 72) does little to bolster the majority position here.

I think it really quite clear that the amendment was intended to change the existing law which the trial judge had applied, and to exempt minor plaintiffs from the two-year filing condition. That amendment cannot be applied to this case because of our earlier holdings in Board of Education v. Blodgett (1895), 155 Ill. 441, and Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill. 2d 161.

I would reverse the judgment of the appellate court and affirm the judgment of the circuit court.

MR. JUSTICE RYAN,

also dissenting:

I cannot agree with the reasoning of, or the conclusion reached in this opinion.

The lengthy discussion concerning a possible common law wrongful death action seems to me to be unnecessary. I also feel that the lengthy quote from Moragne v. States Marine Lines, Inc. (1970), 398 U.S. 375, 26 L. Ed. 2d 339, 90 S. Ct. 1772, does not add any support to the conclusion reached. As this court noted in Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, the Supreme Court of the United States, in Moragne, created a common law remedy for wrongful death to supply a remedy for a unique situation that somehow remained not covered by other statutory remedies. Recently, the Supreme Court of the United States again considered Moragne in Mobil Oil Corp. v. Higginbotham (1978), 436 U.S. 618, 56 L. Ed. 2d 581, 98 S. Ct. 2010. The court noting that Moragne was decided to fill a gap not provided for in the statutes, refusing to extend its holding to other areas where Congress had specifically acted, stated:

“There is a basic difference between filling a gap left by Congress’ silence and rewriting rules that Congress has affirmatively and specifically enacted. In the area covered by the statute, it would be no more appropriate to prescribe a different measure of damages than to prescribe a different statute of limitations, or a different class of beneficiaries.” (436 U.S. 618, 625, 56 L. Ed. 2d 581, 587, 98 S. Ct. 2010, 2015.)

It would thus appear that no matter how erroneous the historical concept concerning death actions may be, as noted in Moragne, in areas where the legislature has specifically provided for an action for wrongful death, Mobil Oil Corp. holds that statutory provisions concerning time limitations, damages, beneficiaries, and other specific statutory provisions are controlling.

I do not agree that the amendment in 1977 to the Wrongful Death Act exempting minors from the application of the time limitations within which an action must be commenced (III. Rev. Stat. 1977, ch. 70, par. 2), manifests an intent to declare established law in that regard. The majority noted that the appellate court opinion in this case declaring that the 2-year time provision would not apply to minors was filed on April 14, 1977. The majority reasoned that the enactment thereafter of the amendment by the General Assembly (the amendment was approved September 16, 1977) indicated that the amendment was declarative of existing law, as announced by the appellate court in this case, and did not manifest an intent to change the law. We note, however, that the amendment in question (Pub. Act 80—700) was passed by the General Assembly on June 21, 1977, and undoubtedly the appellate court opinion in this case had not been printed in the advance sheets by the time of the enactment of the amendment. More convincing still is the fact that Senate Bill 1037, which became Public Act 80—700, was introduced in the Senate prior to the date of the appellate court opinion, and had its first reading in the Senate and was referred to committee on April 8, 1977. (See 1 Final Legislative Synopsis and Digest of the 1977 Session of the 80th General Assembly.) It is highly unlikely that the amendment was in response to the opinion of the appellate court or that it was intended to declare the existing law as stated in that opinion. It is more logical to assume that the legislature enacted this amendment to change the law or that it was in response to the decision of the circuit court in this case which held according to the existing law that the time limitation was a condition of the cause of action and that the minor children were barred by not complying.

This is purely a statutory cause of action and the time prescribed in the statute within which the action must be commenced has consistently been construed as a substantive part of the action, a condition of the liability itself, which must be observed in all events (Wilson v. Tromly (1949), 404 Ill. 307). The legislature provided no exception favoring minors until the 1977 amendment. I see no other plausible explanation for the amendment than that it was intended to change the existing law. Referring to Mr. Justice Stevens’s opinion in Mobil Oil Corp., in the area covered by the statutes, it would be no more appropriate, through judicial decisions, to provide a different time within which minors must commence an action than it would be, through judicial construction, to provide a different measure of damages or a different class of beneficiaries. Unless this court is willing to go to the extent that the Massachusetts court did in Gaudette v. Webb (1972), 362 Mass. 60, 284 N.E.2d 222, we should not tamper with a cause of action that is strictly the creature of the legislature by carving out a little exception to accommodate a special case. The decision in this case is not necessary to protect the rights of minors to recover in future cases, because of the 1977 amendment. This decision affects only the minors in this case, but by making a special accommodation to them, it substantially weakens the concept that the Wrongful Death Act is solely the creature of the legislature and that the time limitation is not a statute of limitations but a substantive provision of the Act itself which must be observed in all events (Wilson v. Tromly).


author: MR. JUSTICE RYAN

text:
    (No. 49509.
    GEORGE T. HUPP, Appellee, v. LAURENCE GRAY et al., Appellants.

      Opinion filed Oct. 6, 1978.

    Rehearing denied Dec. 1, 1978.

      James T. Griffin, Michael B. Roche, and Thomas D. Rafter, of Hubachek, Kelly, Rauch & Kirby, of Chicago, for appellants.
    Jason E. Bellows, of Bellows 8c Bellows, of Chicago, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This is an appeal from a decision of the appellate court, reversing an order of the circuit court of Cook County, which had dismissed the complaint filed by plaintiff, George T. Hupp.

Between May of 1965 and January of 1966 plaintiff purchased shares of stock in an insurance company through the brokerage firm of A. G. Becker, Inc. (Becker), and Laurence Gray, Becker’s agent. In 1971 plaintiff filed a four-count complaint in the United States District Court for the Northern District of Illinois against Becker and Gray, for damages suffered as a result of certain losses in the transactions. Counts I and III alleged that the defendants had violated certain provisions of the Securities Exchange Act of 1934 with relation to the stock transactions (15 U.S.C. secs. 78j(b), 78g). Counts II and IV were pendent State claims alleging negligence and fraud by the defendants in connection with the same, transactions. In May 1972 the district court dismissed the Federal counts on the ground that they were barred by the applicable statute of limitations. Also, insofar as the plaintiff’s attempt to obtain a Federal forum for litigating his Federal claims had failed, the district court dismissed the State claims for lack of pendent jurisdiction. In the Federal court of appeals, the plaintiff argued that the statute of limitations barring the Federal claims should have been tolled as a result of alleged fraudulent concealment by the defendants. The court of appeals disagreed and affirmed the district court’s order of dismissal on August 12, 1974. Hupp v. Gray (7th Cir. 1974), 500 F.2d 993.

In September 1974 the plaintiff filed a complaint in the circuit court of Cook County based on the same facts as the Federal complaint and founded upon common law fraud. In the circuit court he claimed that if his cause of action accrued in 1967 and expired for purposes of the State claims in 1972, that his situation came within section 24 of the Limitations Act (Ill. Rev. Stat. 1973, ch. 83, par. 24a), which, at that time, allowed a nonsuited plaintiff one year to refile his action if the' statute of limitations had run on his claim. The circuit court held that section 24 was unavailable to the plaintiff because he did not file within one year of his nonsuit, as required by the statute, but instead filed within one year of the affirmance by the court of appeals of the district court’s order. In this connection, the court found that the one-year period began to run on the date of the original nonsuit in the district court. The appellate court held that the one-year period within which the plaintiff was required to refile his action began to run with the affirmance of the nonsuit by the court of appeals. Since the plaintiff had refiled within a year of that date, the appellate court reversed the finding of the circuit court. (46 Ill. App. 3d 381.) We granted defendant’s petition for leave to appeal.

Section 24, as it read at the time the plaintiff filed his action in the circuit court of Cook County, provided as follows:

“In the actions specified in this Act *** where the time for commencing an action is limited, if judgment is given for the plaintiff but reversed on appeal; or if there is a verdict for the plaintiff and, upon matter alleged in arrest of judgment, the judgment is given against the plaintiff; or if the plaintiff is nonsuited, or the action is dismissed for want of prosecution then, whether or not the time limitation for bringing such action expires during the pendency of such suit, the plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or given against the plaintiff, or after the plaintiff is nonsuited or the action is dismissed for want of prosecution.” Ill. Rev. Stat. 1973, ch. 83, par. 24a.

During the pendency of this case in the appellate court, the legislature amended section 24 by substituting the words “the action is voluntarily dismissed by the plaintiff” for the words “if the plaintiff is nonsuited” (Ill. Rev. Stat. 1977, ch. 83, par. 24a). Consequently, as the statute now reads, its protection would now be unavailable to plaintiff, since his action was nonsuited and not voluntarily dismissed.

Two issues are raised for our consideration. First, defendants argue that they are entitled to the benefit of the recent amendment, and that it should be retroactively applied to abate the plaintiff’s action. Second, we are asked to decide whether the one-year time limit of section 24, within which plaintiff was required to refile his action, began to run on the date of the original dismissal by the Federal district court or as of the date of the affirmance of the dismissal by the Seventh Circuit Court of Appeals.

Section 24 is, in effect, an extension of the applicable limitation period. Although under the amended section the extension no longer applies to orders such as that entered against the plaintiff, the fact remains that the refiling by the plaintiff had occurred before the effective date of the amendment. An amendment shortening a limitation period does not operate to divest a litigant of his cause of action if his suit has already been filed. If, for example, a limitation statute permits the filing of an injury action within two years and the plaintiff files his suit for such an injury 18 months after the cause of action accrued and while his suit is pending the limitation statute is amended requiring the filing of such actions within one year, the amendment has no effect on the pending action. This is essentially what occurred in our case.

This is quite different from the repeal or amendment of a statute creating a cause of action. This court has held that where a statute which gives a special remedy is repealed without a saving clause all pending suits predicated thereon will terminate as of the date of the repeal. (Board of Education v. Nickell (1951), 410 Ill. 98; Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 346.) Also, as was held in Orlicki, an amendment to a limitation statute shortening the period within which an action must be filed will be applied retroactively to actions not as yet commenced, provided there is a reasonable time after the effective date of the amendment within which to bring the action. See Meegan v. Village of Tinley Park (1972), 52 Ill. 2d 354, 359.

This court has recently held that an amendment which extends a statute of limitations wiH not be applied retroactively so as to revive a cause of action which had already been barred by the expiration of the original limitation period (Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill. 2d 161). We likewise hold that an amendment shortening the limitation period will not be applied retroactively in such a manner as to terminate a cause of action filed within the limitation period prior to the effective date of the amendment.

Resolution of the second question turns on whether the plaintiff filed his action in the Cook County circuit court within the time limit prescribed by section 24, that is, within one year of his nonsuit. We conclude that the time for such filing began to run from' the date of the nonsuit in the Federal district court, and not, as the appellate court held, from the affirmance of the order by the Seventh Circuit Court of Appeals.

Two cases decided by the appellate courts of this State have dealt with the precise issue presented by the facts in the instant case, Sager Glove Corp. v. Continental Casualty Co. (1962), 37 Ill. App. 2d 295, and Skolnick v. Martin (1968), 98 Ill. App. 2d 166.

In Sager, plaintiff brought an action on fidelity bonds issued by the defendant. The suit was dismissed by the superior court of Cook County on December 2, 1957, the appellate court affirmed the dismissal in December 1958, and this court denied leave to appeal on May 20, 1959. The plaintiff filed a suit based on the same cause of action on February 1, 1960, in the circuit court of Kane County. Although the statute of limitations had run on the substantive claim, plaintiff argued that he was entitled to the protection of section 24. The circuit court of Kane County disagreed and accordingly dismissed the plaintiff’s complaint.

In affirming the order of the circuit court, the appellate court held that the year within which plaintiff was required to file his action under section 24 began to run on the date of dismissal in the trial court. The court noted that, pursuant to the unambiguous wording of the statute, there were only two times when a new action could be filed within the extended period, namely where judgment for plaintiff was reversed on appeal and also after judgment was given against the plaintiff. The court pointed out that the plaintiff (like the plaintiff in the instant case), clearly did not fall within the first category. And, the court concluded that in order for the plaintiff to properly fall within the second category, it would have to “construe the statute which states ‘*** judgment given against the plaintiff’ to mean ‘*** judgment affirmed against the plaintiff.’ ” (37 Ill. App. 2d 295, 299.) The court held that the statute did not admit of such a construction.

After Sager was decided, the legislature amended section 24 on two separate occasions, in 1965 and again in 1967. However, the portion of the statute at issue in Sager, which is also the precise statutory language at issue in the instant case, remained intact.

In Skolnick, the plaintiff simultaneously filed actions for damages for personal injury in the Federal district court and in the superior court of Cook County. The Federal suit was dismissed on August 14, 1962, and affirmed by the court of appeals on June 6, 1963. Likewise, the superior court suit was dismissed on March 28, 1962, and ultimately affirmed by this court in November 1964.

The plaintiff refiled his action in the superior court of Cook County on January 6, 1965, relying on section 24. However, the superior court dismissed the suit, and the appellate court affirmed, holding that the plaintiff had not refiled the suit within the year time period prescribed by the section. In support of its holding, the appellate court noted that the year period began to run on the date of the dismissal by the trial court, thereby concurring with the construction of the section previously rendered by Sager.

We feel that the construction of section 24 by both the Sager and Skolnick courts must be given its proper significance. In this regard, we must recognize that a reenacted statute will be given the same construction as that given the prior act, since the legislature is presumed to know the construction which has been given to the statute and, by reenactment, is assumed to have intended for the new statute to have the same effect. (City of Champaign v. City of Champaign Township (1959), 16 Ill. 2d 58.) Thus, an amendatory act is not only to be construed as continuing in effect the unchanged portions thereof (Gaither v. Lager (1954), 2 Ill. 2d 293) but, more significantly, if previously construed terms in the unamended sections are used in the amendment, it is generally concluded that the legislature intended to adopt the prior construction given to these terms. 1A Sutherland, Statutes and Statutory Construction sec. 22.35 (4th ed. 1972).

Application of these tenets of statutory construction to the instant case compels the conclusion that we adopt the construction that the Sager and Skolnick courts placed on the operative terms of section 24 here in issue. When the legislature amended the section subsequent to Sager, the language of the statute prescribing the time within which a party could refile an action remained unchanged and became part of the statute as amended. The legislature is presumed to have known that Sager had construed this language to give a plaintiff one year to refile his action from the date of nonsuit in the trial court. Moreover, the legislature did nothing in redrafting the section to negate the construction that Sager had placed upon the statute, a result which it could have accomplished by substituting the phrase “judgment affirmed against the plaintiff” for the words “judgment given against the plaintiff.” Therefore, we can only conclude that by retaining the language of the prior statute in the amendment, the legislature intended to incorporate the prior construction of these terms into the amended statute.

The statutory language here in issue not only survived two amendments subsequent to Sager, but also was left intact by the most recent amendment. Thus, for the same reasons that the legislature can be said to have adopted the construction of the statute rendered by Sager in the amendments of 1965 and 1967, the most recent amendment must be construed as adopting the prior construction of the language by the Skolnick case as well. Skolnick, as we have seen, affirmed the interpretation of Sager as regards the time within which a plaintiff must refile a nonsuited action. The most recent amendment no longer makes the saving clause available to plaintiffs who are nonsuited, but, nevertheless, the relevant portions of the statute denoting the time-period limitations have been carried over into the statute as amended. This further supports the conclusion that the year within which an action must be refiled runs from the time of judgment in the trial court, and not from affirmance of the judgment by the appellate court.

The plaintiff argues that the ruling of the trial court in no way advances the true purpose of statutes of limitations, that is, to allow a defendant a fair opportunity to investigate the facts and circumstances as to liability and to prepare a defense while the pertinent facts remain accessible.

Plaintiff argues that it is antagonistic to the spirit and purpose of section 24 to attach a restrictive meaning to the language of the section providing for the recommencement of actions after nonsuits, and that a liberal interpretation is preferable. See Roth v. Northern Assurance Co. (1964), 32 Ill. 2d 40.

The plaintiff’s arguments are not without merit. However, the decision we reach today is premised upon the effect of prior judicial construction of section 24 on subsequent amendments to the section, and not on a construction of its language per se. Consequently, the persuasiveness of the defendants arguments, which urge us to adopt a construction of the section inconsistent with Sager and Skolnick, is somewhat diminished. However, as we discuss below, we are not convinced that the interpretation that we have attached to section 24 totally contravenes the spirit and purpose of the section or is otherwise unjust or unfair.

We do not deny that one of the purposes of a statute of limitations, i.e., to allow a defendant a fair opportunity to investigate facts and circumstances concerning liability, does not exist when the defendant is put on notice of the plaintiff’s cause against him. However, there are other purposes for statutes of limitations. One such purpose is to promote certainty and finality in the administration of affairs. (See Gates Rubber Co. v. U S M Corp. (7th Cir. 1975), 508 F.2d 603.) This purpose is not advanced by allowing a plaintiff to wait until an affirmance of a judgment against him to recommence his action. Such a tactic only serves to prolong the matter and results in subjecting the defendant to a protracted period of contingent liability. As was held in Gates, this result should be avoided. A more desirable result is attained by requiring that the litigation be brought to a close as quickly as possible.

Plaintiff cites numerous decisions from other jurisdictions which have interpreted statutes similar to section 24. These decisions, which held that the period for renewal of actions begins with affirmance of a judgment against plaintiff and not from nonsuit in the trial court, are collected in an annotation in 79 A.L.R.2d 1270 (1961). Many of the cases relied upon by the plaintiff are distinguishable on the facts, and all such cases rest upon judicial construction of statutes which are worded differently from section 24. Plaintiff, as did the court below, relies heavily on Gosnell v. Whetsel (Del. 1964), 198 A.2d 924. In Gosnell, the Delaware Supreme Court interpreted a statute similar in language to that of section 24 to give a plaintiff one year from affirmance of a nonsuit by the appellate court to recommence his action. Plaintiff argues that Gosnell represents the majority view of when the renewal period of saving statutes begins to run and concludes that our decision today should be consistent with that case and others similarly decided. We do not agree. While the Delaware statute was similar in language to section 24, the statute did allow renewals to be filed after reversal of a judgment for the plaintiff or “other determination of the original action ***.” (Del. Code tit. 10, sec. 8117(a).) This arguably intends the statutory period to begin running with an affirmance of a judgment adverse to the plaintiff. Section 24, on the other hand, states that it begins to run when a judgment in favor of plaintiff is reversed or when one is given against a plaintiff. There is an arguable difference between the Delaware statute and section 24.

More significantly, as far as we can tell from the reported case, Gosnell was decided without the benefit of prior judicial construction of the relevant statute. In the instant case we are faced with two cases interpreting section 24, and three subsequent amendments which must be considered as incorporating the construction that those cases attached to the section. As we have already said, this is a critical aspect of this case and serves to distinguish it from those cases cited by the plaintiff, including Gosnell v. Whetsel.

For the reasons discussed above, we conclude that the plaintiff had one year from the nonsuit in Federal district court to recommence his action in the Cook County circuit court. Consequently, the action was untimely filed and the judgment of the appellate court is reversed and that of the circuit court affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 49162.
    LEOPOLDO HERNANDEZ, Appellee, v. POWER CONSTRUCTION COMPANY, Appellant.

      Opinion filed October 6, 1978.

      John B. Grogan, of Chicago (Patrick T. Driscoll, Jr., of counsel), for appellant.
    Alvin E. Rosenbloom, of Chicago (William J. Harte, Ltd., and Lawrence T. Stanner, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Plaintiff, Leopoldo Hernandez, filed an action in the circuit court of Cook County for personal injuries against defendant, Power Construction Company, under the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, pars. 60 to 69). The injuries were allegedly sustained when plaintiff fell from a scaffold being used in the construction of a building under the supervision of defendant. Plaintiff alleges that defendant violated the Act by failing to provide a safe and properly constructed scaffold upon which to work.

At the time of filing its answer, defendant demanded a jury trial. Four years later and immediately before trial, defendant withdrew the demand. Prospective jurors had already entered the courtroom and were then ushered out. Plaintiff objected to the withdrawal and requested leave to file his own jury demand under sections 59 and 64 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, pars. 59, 64) and Supreme Court Rule 183 (58 Ill. 2d R. 183). Plaintiff was taken by surprise by defendant’s withdrawal of his jury demand and did not then articulate the grounds upon which he sought leave to file his own jury demand. The court denied the request and proceeded to hear the case as the finder of fact.

Plaintiff sought, as part of his case, to introduce into evidence the opinion of an expert witness as to whether plaintiff’s fall could have been prevented if the scaffold had included certain safety features, namely a guardrail and a toeboard. Defense counsel objected and the trial judge excluded the evidence, stating that such matters were to be decided by the trier of fact. No offer of proof was made.

At the close of plaintiff’s evidence the court granted defendant’s motion for judgment. The appellate court reversed and remanded the cause to the circuit court, ordered a new trial before a jury, and held that the trial court erred in excluding the opinion of plaintiff’s expert. (43 Ill. App. 3d 860.) We granted defendant’s petition for leave to appeal under Rule 315 (65 Ill. 2d R. 315).

On appeal, defendant argues that plaintiff waived his right to a jury trial by not filing a demand therefor at the time that the action was commenced, and that there is no need for the expert opinion sought to be elicited because the subject in question is within the common knowledge of the layman. Plaintiff asserts that the trial court erred in denying plaintiff’s motion for leave tó file a jury demand and in excluding the opinion of plaintiff’s expert witness. Plaintiff also argues that the trial court’s grant of defendant’s motion for judgment was contrary to the manifest weight of the evidence. We will first address the issue of whether the denial of plaintiff’s motion for leave to file a jury demand was error.

The right to jury trial is a constitutional right guaranteed by article I, section 13, of the Illinois Constitution of 1970. Section 64 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 64) specifies the time at which a demand for jury trial must be made, providing:

“A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his answer. Otherwise, the party waives a jury.”

However, section 59 (Ill. Rev. Stat. 1977, ch. 110, par. 59) provides:

“On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.”

Similarly, Supreme Court Rule 183 (58 Ill. 2d R. 183) provides:

“The court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.”

As is evident from a reading of the above-quoted provisions, good cause must be established in order to obtain an extension of time in which to file a late jury demand. (Village of Park Forest v. Walker (1976), 64 Ill. 2d 286, 300.) In addition to the requirement of good cause, the court will consider inconvenience to the parties and the court, and any possible prejudice to the rights of the opposing party. (Stephens v. Kasten (1943), 383 Ill. 127, 135.) The decision is made in the discretion of the trial court, and its decision will not be reversed unless there is an abuse of discretion. The standard of review on appeal is not whether the appellate court would have allowed the motion, but whether the action was a reasonable exercise of sound discretion. Johnson v. Sabben (1972), 7 Ill. App. 3d 238, 241.

Because the right to jury trial is of constitutional dimension, courts will liberally construe statutes which regulate exercise of the right. “[T]he inclination of the court should be to protect and enforce the right.” Morrison Hotel & Restaurant Co. v. Kirsner (1910), 245 Ill. 431, 433. See also Hudson v. Leverenz (1956), 10 Ill. 2d 87, 93; Stephens v. Kasten (1943), 383 Ill. 127, 133.

It appears from the record that no inconvenience or prejudice would have resulted if the trial court had granted plaintiff’s request for a jury trial. No inconvenience would have resulted because the case was already on the jury docket and prospective jurors were in the courtroom when defendant withdrew its demand. No evidence of prejudice is present since both parties had anticipated a jury trial.

The absence of inconvenience or prejudice, however, does not alone establish good cause. The moving party must assert some independent ground for granting his late demand. Stephens v. Kasten (1943), 383 Ill. 127, is instructive as to what constitutes good cause. In that case the plaintiffs sued for damages resulting from personal injuries allegedly sustained due to the negligence of the defendants. The defendants were initially represented by counsel retained by their insurance company. No demand for jury trial was filed by either side. Four months after filing of the complaint, defendants, through new attorneys retained personally by the defendants, filed a demand for a jury. Plaintiffs moved to strike the demand. Defendants were not timely notified of the motion and did not appear to contest it. The motion was granted, and defendants moved to extend the time for filing a new demand for jury trial. The motion was denied. On appeal this court held that the trial court had abused its discretion in denying the jury demand. The court stressed that the defendants had desired a jury trial, did not intend to waive it, had lost the right only because of the carelessness of the insurance company’s attorney, and had no opportunity to be heard on the motion to strike their original jury demand because they were not timely notified.

Plaintiff Hernandez, in an effort to establish good cause, asks us to look to the practical realities of the situation and the unfairness that would result if he is denied a jury trial. Plaintiff points out, and we take judicial notice of the fact, that a plaintiff who desires a jury trial in the circuit court of Cook County must wait approximately two years longer than those willing to have a bench trial. A plaintiff is thus faced with two mutually exclusive alternatives. He may obtain the benefit of a more prompt adjudication through a bench trial if he is willing to waive his right to jury trial, or he may opt for a jury trial and thereby relinquish any possibility of a more prompt adjudication. Each alternative presents considerations that are attractive to the personal injury plaintiff. Through a bench trial the plaintiff may recover damages sooner than he might if he chose a jury trial, but in a jury trial the plaintiff might enlist the sympathies of the jurors and improve his chances of recovery.

The appellate court agreed with plaintiff’s analysis, holding that plaintiff’s demand for a jury trial should have been granted. The court pointed out that plaintiff, because of the defendant’s jury demand, had already lost the benefit of an early adjudication, and that a denial of the demand would deprive plaintiff of the advantage of a jury trial as well. (43 Ill. App. 3d 860, 864; see also Smith v. Realcoa Construction Co. (1973), 13 Ill. App. 3d 254, 261 (Hayes, J., dissenting).) We agree that this element of unfairness constitutes good cause for granting plaintiff’s late jury demand and that, under the facts of this case, the trial judge abused his discretion in denying plaintiff’s demand. Once the plaintiff established good cause for an extension of time in which to demand a jury trial, the trial court, in its discretion, could nonetheless deny the motion. In the exercise of that discretion, however, the trial court should not have ignored the fact that a constitutional right was at stake, and that no inconvenience or prejudice would have resulted if the motion had been granted. As previously mentioned, the case was already on the jury docket, prospective jurors were already in the courtroom and no prejudice was evident. The decision to deny a late jury demand under these circumstances fails to give proper recognition to the need to protect “the jealously guarded right of trial by jury.” Stephens v. Kasten (1943), 383 Ill. 127, 135.

At oral argument counsel for defendant argued that plaintiff failed to make any showing of good cause at the time that leave to file a late jury demand was requested. We consider this argument to be without merit, however, as the record clearly indicates that plaintiff was taken by surprise by defendant’s last minute withdrawal of his jury demand, and that plaintiff’s efforts to support his demand were frustrated by the trial court’s denial of his motion. Plaintiff’s request for leave to file a late jury demand was entirely proper and in accordance with long-established practice in Illinois. Cf. Petrie v. People (1866), 40 Ill. 334, 343.

We now turn to the parties’ contentions concerning the admissibility of the opinion of plaintiff’s expert witness. Defendant’s principal contention is that there is no need for an expert because the subject at issue is a matter of common knowledge and should be decided by the trier of fact without the assistance of expert testimony. Plaintiff’s counsel had asked the witness whether plaintiff’s fall from the scaffold could have been prevented if guardrails had been installed.

The opinion sought to be elicited dealt with matters of common knowledge, i.e., whether guardrails could prevent one from falling off a scaffold. In Miller v. Pillsbury Co. (1965), 33 Ill. 2d 514, 516, this court said of such opinion testimony:

“While there has been a reluctance to permit expert testimony on many matters on the basis that it invades the province of the jury, confuses the issues and usurps the function of the jury, the trend is to permit expert testimony in matters which are complicated and outside the knowledge or understanding of the average person, and even as to matters of common knowledge and understanding where difficult of comprehension and explanation. The jury still may accept or reject such testimony.”

Expert opinions thus may not be admitted on matters of common knowledge unless the subject is difficult of comprehension and explanation. For example, in Ray v. Cock Robin, Inc. (1973), 10 Ill. App. 3d 276, aff’d (1974), 57 Ill. 2d 19, an expert witness sought to offer an opinion as to whether the placement of tables close to a busy street was dangerous, and whether guardrails, barriers or blockades would have provided some degree of protection. The court held that an expert was not needed since there was nothing complicated or difficult to comprehend. The trier of fact may make its decision on such issues without the assistance of expert opinion. Under the facts of the present case this is equally true, whether the trier of fact is the trial judge or jury. Accordingly, the evidence should be excluded at the new trial before a jury.

In summary, we hold that the trial court abused its discretion in .denying plaintiff’s motion for leave to file a late jury demand. We emphasize the presence of good cause and the absence of inconvenience or prejudice. Each case must be decided on its own facts. (Hudson v. Leverenz (1956), 10 Ill. 2d 87, 93-94.) We do not purport to establish a per se rule requiring that a party’s late jury demand be granted whenever his opponent withdraws his own demand immediately before trial. We merely hold that it was error here for the trial court to hear the case as the trier of fact.

Because plaintiff was entitled to a trial by jury, the trial court could direct a verdict for defendant only if all the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favored defendant that no contrary verdict based on that evidence could ever stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510). The evidence in this case was sufficient to present a factual question for the fact-finding body, and in this case that should have been a jury. The decision of the trial court granting defendant’s motion for judgment therefore cannot stand.

Accordingly, the judgment of the appellate court, reversing the circuit court', is affirmed. The cause is remanded to the circuit court of Cook County for a new trial, with directions to proceed in accordance with the views herein expressed.

Affirmed and remanded, with directions.