Petition for Writ of Certiorari — Lowrey v. Malkowski (No. 771)

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REASONS FOR GRANTING THE wait.

(1) The pellate and Supreme Court decisions have

left.a void, with.respect to: the means-of- support require-

ment, which this court ought to consider, there being we*

feel denial of due process here as well as public policy,

in«a most serious aspect. : , 7

(2) The Federal cases of Rogers y. Divight, and, Se al

v.. American Legion, the former District and the latter

Court of Appeals. conflict ; and, with the Waynick decision

_now, there seems to be ever more uncertainty, which this

court we submit should settle, ile., public policy, again.

(3) Possibly most serious, is the denial of due process

to children who obviously are unable t o sue for themselves -

until they do attain their majority. “For those years there

is ‘a most serious oid. a : ‘

(4) . Neither Illinois court of review ruled as: to the in-

. dividual right to sue for the maximum: under the Dram

Shop Act, instead of being restricted to a group-recovery

of the maximum, which we feel is also denial of due proc-

ess. y .

To hold that it is necessary that support had in fact

‘been provided, to support a cause of action under Dram

Shop, is against public policy,

Rogers. v.*Dwight, 149 F. Supp. 537;

Killham v. Chaloupka, 195, Ill. App. 182; .

Danhof v. Osborne, 10 TM. App. 2d, 529, 135 N.F.

‘ . . 9d 492;

19 Til. Digest (Burdette-Smith) 327, 328;

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and, further, in effect; it amounts toaw rongful taking of

‘the right-of a person to Sue, in other words, a violation of

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the due process clause of the Federal Constitution. The

citations holding to the contrary, and that part of the Ap-

: pellate court opinion, are plainly unrealistic. In the not in-

frequent case where the-husband spends his money, or @

substantial part, on ‘drink from’ the vety inception of the

marriage; in the also not infrequent case where he not only

squanders his money on drink but deserts his family, and

like cases, how can the-neglected wite and children compel

a him to bring a Dram Shop suit, as the “provider?” These

contrary-holding decisions put a premium on drinking and

failure to support..Is it not realistic to argue that “barten-

ders and others. dispensing drink may well encourage them

to spend their earnings on drink, they knowing—if. these

| decisions are’ upheld—that all they have to argue is: ‘‘L°

»’ *never did support my wife and ehildren, ther efore, the

ww Dram Shop Act eannot apply.”’

It seems to us, if the Appellate court holding the above

were upheld, that harsh and serious résults must envelop

unfortunate wives and ¢hildren—wayward husbands and

fathers would be encouraged not to provide support. The

simple fact that one is a hushand and/or. father, should be’

‘more than sufficient, in that he is legally, anorally, bound

’ to support his family. The family is entitled fo sue h sup-

port, and if not so received, no matter whether it was ever

given or not, should he sulficient—in the soundest of sound

public policy, for a cause of action, under the Act. This’ we

* submit should be the wholesome, sound, in the public in-

~~ terest, public: policy y. Moral, legal obligations should he

supported and protected, not subject to ready evasion, in

law, by simply ignaring or evading them. Weeargue, there-

fore, that to take-away the right of a wife, who has never

heen or has not been,since any given time, supported, to

sue in these eases is the unlaw ful faking away of her day

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as

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in court, her constitutional right to-sue for redress. The

right to sue is a property right, the taking away of that

right is a violation ‘of the due process. ;

It is contrary to sound publie policy-to hold a minor to a ~

one-year statute of limitations. The Act was. intended to

protect the family of a drunk#d against immediate or

probable want of adequate support, same devisions &s\ (4)

above. From the digest volum@ we read: ** Although the

Dram Shop Aet is penal in character and should be st rictly

construed, the act is also remedial and should ‘be so cor-

strued as to suppress the mischief and advance the reme-

dy.” The Danhof ease, on pages 497-8 of the. Northeastern

volume, contains the following rather strong language:

«* © * He who deliberately sells that which he knows.

will inflame the passions, deprive, the party of the

_ control of judgment, and render him, for the time be-

Ang, incapable of exercising proper care for personal

_ safety, or that of his property, must be prepared for |

* the consequences that may follow * °°.’ . ’

It is the duty of the courts to protect rights of infants.”

whether er not the proper relief is asked in the pleadings *

** * 43 CIS 27H sec. 105. It is the public policy of this ‘

state that courts should guard carefully the rights of mi-

ngrs, which should not be precluded unless clearly de-

barred by some statute or constitutional provision. Desiron

v. Peloza, 308 Ill. App. 582, 32 N.K. 2d 316. In this ease it

was held that the minor, as a matter of public policy, has

the right to sue ‘within the limitation period after attain-

,ing majority, and, continues on page 322 of the Northeast-

ern volume: .

** © * and surely the minor should not be deprived

of her rights by the laches or negleet of a recreant

guardian® * *’’. -

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The Act says that the statute is to run after the cause of

action has accrued. We submit, that the cause, of action,

: insofar, as a minor is concerned, accrues within the year.

after the attainment of majority. Tle injury-is a continu-

ingene. Habitual drunkenness nara over a long period,

hdoyd v. Kelly, 48 Dl. App. 554; a4 CJS 127; the Rogers

ease. Seal v. American Legion, ny F. 2d 908, holding to

' the one-year limitation irrespective of minority, we feel,

is contrary to sound public policy, and should not be fol- .**

lowed. In that case, as well as in the case: here, the minors |

could do-nothing themselves, someone elsé, whether parent

oreguardian or next friend, had to commence the action.

And where they fail to do so, is it fair to punishi the minor?

It is submitted, that for such cases our Limitation Act § °

exists, for the particular protection of those unable to de-

fend themselves, or unable to avail themselves of. their

rights to sue, i.e. sound public policy. It is for the same

reasons, that in no case may an action besprosecuted against

un infant, unless a guardian ad_litem has been appointed. >@

In those cases the law compels protection for the minor,

yet in the Dram Shop cases, where the parent may deliber-

~ ately drink, -deliberatgly, fail to support his family, with

the full knowledge, yes, even connivance of the drink dis-

pensers, his right of action is taken from him.«This is un- .

fair, this is taking of property, i.e a right to sue,.with-

out due process. °

The language in 19 TIl. Digest (Burdette-Smith) 335, key ;

2M), expresses the situation: ;

“If husband had, already become a oebaet and

for that cause had ceased to support wife, defendant

saloon keepers selling the husband liquor wotthd be / °

just as responsible for continuing the loss as for caus-

ing it in the first place *°* *’’.

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And in the Rogers case, on page 539 it said:

- “The above cases point out the object of the Dram .

Shop legislation, that is, the public policy of the State

of Illinois. In the construction of the statute, it is of ut-

most importance that we keep that public policy well

in mind. Habitual drunkenness and its effect on the

support and welfare of dependents is a condition

_which generally develops over a long period of time.

Since the Illinois legislature has given a cause of ac-

tion to. those injured through habitual drunkenness,

the court finds the injury to the plaintiffs a eontinu-

ing tort with the running of the limitation beginning

from the date of the last injury * * * it may be broadly

stated that, where a tort involved a continuing or re-

_ peated injury, the cause of action accrues at, and limi-

tations begin to run from, the date of last injury, or

when the tortious overt acts cease, 54 C.J.S. 127. Any

other construction of * * * limitations would tend to

defeat the expressed public policy as set forth by the

legislature’’.

The then 2-year limitation period was held no defense.

The late case of Waynick, et al v. Chicago's Last Depart-

ment Store, et al; 269 Fe 2d 322, decided in J uly of 1959,

brings new and additional reasoning in these type of CANES.

The court there said, on page Oo:

‘*Tt is apparent in the case at bar that there are cir-

cumstances which make the sales of liquor * * * wil-

ful violations of see. 131, These * * * were not usual

sales to adults or ordinary men. They were sales to

intoxicated persons * * * Kvery person has a general

duty to use due or ordinary care not to injure others, -

to avoid injury to others by any agency set in opera-

tion by him. 65 CJS Negligence sec. 4, p. 340, One es-

sential element in a tort is the existence of a duty im-

posed by statute or otherwise in favor of the party in-

jured and onthe party whose conduct produces the in-

jury. 86 CIS Torts, see. 6, p. 926. The duty, breach of

which may constitute negligence, may be a duty to the

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person injured as an individual, but this is not essen-

tial, since it is sufficient that the duty was owed to him

as a member of a class of group. 65 CJS Negligence,

see. 4,°p.. 340.. The Illinois act making unlawful the

sale of aleohalic liquor to any intoxicated person is for.

the protection of any inember of the publie who miglit

he injured or damaged as a result of the drunkenness

- to which the particular sale of alcoholics contributes.

Obviously the plaintiffs in the case at bar are entitled

(page 326) to the protection given by sec. 191° °°.

“Tt will be noted that, in availing themselves of that

"protection, plaintiffs are in no way relying upon thdse °

paitsof the Illinois act imposing civil damage liability

(which was unknown to the common law), resulting

from lawful sales of intoxicating liquor .to a competent

person, commonly known as Dram Shop Act cases.

The effect of 131 * * * is that a sale of alcoholic liquor

cannot lawfully be made to an intoxicated person. This

is not inconsistent with the right of any competent

adult to buy aleoholie Jiquor * * * :

-“Tn applying the common law to. ** © this ease, we

must consider the law of tort liability, even though

_. the chain of events * *.* crossed state *.* * lines * * *

1. We hold that, under the facts * * * in the complaint,

the tavern keepers are liable in tort for the damages.

and injuries * * * as a-result of the unlawful acts of

(the tavern keepers) * °°’? <% -

Adding this reasoning to that ‘of Rogers ¥. Prvight,\ w

submit is far more a wise public policy, especiallh—then

minors who are unable to defend themselves by. way of

filing suits for redress, tfan the result in Sealy. American

Legion. We comment further. We. have more than .enough

-troubles today with aid to dependent children, and like —

cases, without encouraging more, Rights of adopted chil-

dren, and adoption does not relieve natural father from

his duty to support child when necessary. Jn Re, Tilliski's .

. Estate, 323 Ill. App. 490; and, Anderson v. Anderson, 320

Til. App. 75, 49 N.E. 2d 841.00 * )

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We would feel remiss in our duty in not calling the at-

tention of the court with respect to the current law in re:

‘each person having the right to sue in his or her own name,

individually, for the maximum amount. For, we feel, to

compel many to be restricted to one combined maximum,

_ would and does place a single plaintiff in the same position

as multiple claimants, irrespective 6f number. We earnest-

ly ask that this be reviewed, and/ each individual given

his right to so sue. For, to so deprive each individual, ‘is

violation of the due process clause. , \

As to tights of a divorced wife we cite 48 C.J.S. 725;

‘and, Cope v. Gepford, 326 Ill. App. 171, 61 N.E. 2d 394. The

ease citation involved a habitual drunkard+case and the

court held that the husband father-was. under a “‘legal

Obligation to support’. ‘In the case at bar, thé decree

had reserved jurisdiction as to alimony ;.the divorcee court

had entered’a judgment for accrued support for the chil-

dren. Under these - circumstances, to prevent plaintiffs’

recovering, %e submit too, is de nial of due process. What

-. good are rights to sue, what good are rights of judgments,

if they are denied enforcement under circumstances amount-

‘ing to-unsound policy? ®

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_ ADDITIONAL SPECIAL POINT.

We call attention to the paragraph in the Appellate opin-

ion.p. 17, identified by us as Ia, these reasons: the citation

noted therein was only one of ten that appellees had in.

their brief, not a single one of which, had any bearing, ‘in

any manner, on the alleged point raised, namely, with re-

spect to injury being necessary to recover for failure to

support. We submit, by referring ta that single citation, ~

_ With no other comment except as stated in the opinion,

amounts to a glossing over of a serious matter. We spent

several days in checking, and reche¢king these ten alleged -

citations. Where citations have no bearing on the point

supposedly in issue, especially where numerous, as a re-

sult of which opposing party is compelled to spend sub-.

stantial time in chetking same,-and in re plying thereto,

ali of which was patently unnecessary and uncalled for, the

court should take appropriate action against the offending

party, by assessing costs, amply. To permit such time-

wasting practice to go unchecked ix unfair to the courts:

and counsel, We earnestly submit this should be ruled upon

here, if possible, in the general interest of the legal pro-

fession and the *: diciary. - i ad

Respectfully submitted,

IrviING EIsenBers,

| ‘Attorney for Petitioners.

Paci I. BArkorr, > ee

Of Counsel. ,

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APPENDIX “‘A”

Opinion of the Appellate Court of Iinois.

Mr. Presiding Justice Bryant Deliv ‘ered the Opinion of the

Court.

I. This is a suit arising under the ies Site Act (Ill.

~ Rev, Stat. 1957; Chap. 43, se¢. 135) for failure of support

by the husband, brought by Beatrice Lowrey, for herself

~

and on behalf of her two minor children. She obtained ‘a |

divorce from the husband-father of the children, on the

grounds of habitual drunkenness, the decree reserving ju-

risdiction as to alfinony. Subsequently she obtained a judg-

ment order against him for unpaid child support and fees.

Before the entry of such order she married Roger Low-

rey, her present husband who, after the date of the judg-

Inent, adopted the children.” Defendants filed motions to

dismiss on grounds of failure to state a cause of action

which were sustained ‘by the comrt below and judgment

entered against plaintiffs, who appeal.

r laintiffs maintain that their complaint states a cause of

action. We are satisfied that the ‘opinion in St, Clair v.

Douvas, et al.. 21H. App. 2d 444, “settles the point. In that

case, a construction of. the amended Act identical with that

“urged by appellee in this case was rejedted by the court.

At page 450, Mr. Justice MeCornic ‘kYsaid +

. "It is the contention of the defendants. that the pro-

vision of the statate to the effect that the action must

be brought in the name. of the person injured, from

whom the said support was derived, should be con-

sidered as meaning that there could be no recovery

unless a physical injury had been ineurred by the per-

son providing the support and that the decisions of the

5 a

Peter a

Hy a:

(Appendix)

Illinois courts interpreting the Act before the ‘amend-

‘ment are no longer applicable. To so hold would, in

our opinion, require a strained construction “of the

statute. If the legislature had so intended it would |

_ have so stated. In the Act as amended the term ‘in-

jured’ or ‘injuries’ is used several times, and the_

meaning must be interpreted corfsidering the subject

to which the word refers and with reference to the

context. * * * The provision in the Dram Shop Act that,

‘an action shall lie for injuries to means of support,

caused by an intoxicated person, or in consequence of :

the intoxication, habitual or- otherwise, of any per-

son, resulting as aforesaid’ is substantially the same

as the provision was before the amendment. This sen-

tence in the amendment creates the’ right of action for 4

injuries to means of support. Huckaba v. Cor, 14 Tl.

24 126, 130. The word ‘injuriés’ there used..daes not

‘mean physical injuries. It mteans that the person en-

titled to support received an injury through being de-

_ prived of means of support and that such injury was

a violation of his legal) rights. Jury v. Ogden, 56 IIl.

App. 100, 105.”

_ And in summary, on page 452, the court concluded :

‘*Reading the entire amendment we find that it was

not the intention of the legislature to limit actions

brought tor injury to means of support to cases where

death or a physical injury was suffered by the person

furnishing the support, and we hold that the cases

which were decided under the Act before the amend-

ment construing the provision creating the right of

action for jnjuries to means of support are vt con-

trolling.”

The court had squarely before it the question of whether |

the 1955 amendments recognized that a cause of action

could arise in faver of a person claiming a loss of support

when that loss resulted without physical injury to the pro-

vider of the support, In that case the provider of the sup-

77

(A ppendix )

port had been incarcerated for the commission of a crim-

inal act while intoxicated and as a result was unable to sup-

. port the claimant. After a thorough examination of the au-

thoritigs the court came to the conclusion, and we think

rightly se. that the statutory language was: substantially

the same as it had been before the amendment and ‘that

the injuries referred to.are’ the injuries to the person en-

titled to support through being deprived of his legal rights

whether or not it results from physical injury to the pro-

vider of the support. The court made a careful survey of

- the authorities. It is therefore perfectly clear that the cause

. of action does not have to be for phy sical injuries to the

prov ider of the aren.

II. (a) Stellers v. ‘Mites, 17 Ill. App..2d 435, relied upon

by appellees, did not involve the question of whether in-

jury to the pnpvider of thé support is a nycessary part of

the cause of action under’ the ie Dram § Shop Act. It dealt only

ith the problems ofjoinder 6f parties and maximum

amounts Lavsenert An of which were raised in this

court. | 4 |

(hb) The order of the trial court in dismissing the eom-

laint indicates that it was based upon the erroneous con-

Fontion of the defendant that the loss of support must be

the result of physical injury. to the provider of the support.

It applied to both counts of the complaint and to all par-

ties. In this respect the dismissal of the complaint was im-_

proper r and should he reve -rsed,

Il. However, appellee has raised certain other conten-

tions which have not been disposed of by the foregoing

analy SIS, :

Appellee contends that the dismissal of the complaint is

proper because it was filed more than’ one-year after the

=

(Appendix)

cause of action accrued and thus fails to comply with the

one year limitation “vrs of the amendment of 1955 (III.

Rey. Stat. 1957, Chap. 43, sec. — The statute provides,

in part:

‘An action shall lie for injuries to means of support,

caused by an intoxicated person, or in consequence of

the intoxication, habitual or otherwise, of any person,

resulting as aforesaid.”

The terms ‘‘means of support” referred to in the statute

has not been restricted to the support which the person

intoxicated ‘was found legally obligated. to furnish, but

has been held to include the loss of income which results

from the termination of voluntary contributions. Pearson

v. Renfro, 320 Ill. App. 202. But ‘‘means of support”, ‘as

used in the statute, has consistently been construed to re-

quire that the person intoxicated did in fact render. sup-

port, whether or not he was legally required to do so.. Mc-

Clure v. Lence, 345 Ill. App. 158. No action will lie for

damages based on a future potentiality of support not

presently provable. Robertson v. White, 11 Ill. App. 2d 177.

Here there was a total lack of support for more ‘than one .

year prior'to the filing of the complaint. There was-no sup-

port rendered in fact. Therefore, at no time during the one

year preceding the filing of this cause of action could the

plaintiffs claim to ‘be depriv ed of the nonexistent support.

The Limitation Act, which would toll the running of the

limitation on recovery until the children reached their ma-

jority, is not to be applied to actions under the Dram Shop

Act. Thoinpson v. Capasso, 21 Til. - 2d 1.

IV. Appellant contends that the trial court abused its:

diseretion in refusing to allow amendment of its com-

plaint. In Thomas v. Carroll Const. Co., 14 Hl. _ 2d 205,

at page 210, the court said:

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'- is affirmed.

NL eien tk <5

ADT se me

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(Appendix) ;

**The trial court has discretion with respect to al-

lowance of amendments to pleadings and it is not prej-

udicial error to refuse an amendment unless ere

has been a manifest. abuse of this. discretion. (Deasey

_v. City of Chicago, 412 Ill. 151, 156-157).” |

In Joyce v. Blankenship, 399 Ill. 136, it was held that it

is ‘proper to dismiss a complaint when there is no equity

on its face, and it is manifest that no amendment could aid.

it. In the instant case, the coinplaint was defective on its

face, for the.period during which an-action could be brought

had expired: No amendment “could rejuvenate the dead

cause of action. There was no abuse of discretion by the

trial court in refusing to aJlow amendment in this instance,

For the reasons indicated, the judgment of the trial court

| Judgment Affirmed. -

Burke and Frienp, JJ., Concur

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APPENDIX ‘‘B”’

Opinion of the Supreme Court of Illinois.

irr. Justice: Solfisburg delivered the opinion of the court:

This case involves a construction of the Liquor Control

Act, (1 Il. Rev. Stat. 1957, chap. 43, par. 135,) and the limi-

tations contained therein in relation to, alleged loss of sup-

* port caused by habitual drunkenness.

Plaintiff Beatrice Lowrey brought suit for herself and

on behalf of two minor children against the defendamg,

dramshops. The complaint was filed in the Cireuit Court

ef Cook County on April 3, 1958. It alleged that the plain- -

tiff Beatrice’ Lowrey obtained a divoree from Edward ~

Janowiak, Jr., hereinafter called husband, on November

10, 1954, on the ground of habitual drunkenness. The com-

plaint further alleged as’ follows: ‘*Thereafter, pursuant

to notices and. petitions filed, judgment was entered in the

same cause on behalf of this plaintiff against said husband

on April 23, 1957, in aggregate sum of $1590.00, for ac-

_crued support and fees. Since the entry of such decree of

divorcee and to this date, husband has at no time whatever

paid-any money to plaintiff on account of support or costs

orfees either for this plaintiff or the minor children as

niore fully set forth hereinafter. Plaintiff subsequently

M@rricd Roger Lowrey on or.about January 8, 1955, Dur-

it the period of years above referred to, the husband was

from time to time gainfully employ ed,.and except for his

excessive inbibing of intoxicating liquors was and would

have been fully capable of properly supporting plaintiff

and the minor children. Directly due to such drinking said

. hushand was discharged from his regular employment.

eke

(Appendix)

Plaintiff .charges that throughout sugh period of years

above referred to, husband purchased or obtained by gift

intoxicating liquors from all the defendants, jointly or

severally, resulting in his habitual intoxication throughout

such periods, without any” fault or cause on the part of this.

plaintiff. ’’

The several defendants filed separate motions to, dis-

miss, all setting forth in substance that the complaint did |

not state a cause of action under the Liquor Control Act,

and that the complaint was barred by the limitation provi-

sion of the‘act. Upon hearing the trial court dismissed the

complaint and thereafter denied plaintiffs leave to file an

amended complaint. The Appellate Court: for the . First |

District affirmed ‘and we granted leave to appeal.

Plaintiffs contend that their complaint states a cause of ©

action-for loss of support and is not barred by the limita-

‘tion provision of the Liquor Control Act. Defendants in-

sist that the complaint does not state a cause of action, in °

that it does not allege injury or death to the provider of

~ support, and in any event suit was not commenced ‘within

one year after the cause of action accrued.

The applicable provisions of the Liquor Control. Act

(Ill. Rev. Stat. 1957, chap. 43, par. 135,) are as follows:

“Every person, who shall be injured, in person -or proper-

ty by any intoxicated person, shall have a right of action

in his or her own name, severally or jointly, against ‘any

person or persons who shall, by selling or giv ing alcoholic

liquor, have caused the intoxication, in whole or in part, of

such person; * * * An action shall lie for injuries to means

of support, caused by an intoxicated person, or in conse-

- quence of the intoxication, habitual or otherwise, of any

~ person, resulting as aforesaid. Such action shall be brought

"by and in the name of the person injured or the personal

23

(Appendix)

representative of the deceased person, as the case may he, |

from whom said support was furnished, and the amount

recovered in every such action shall be for the exclusive

benefit of the person or persons injured in loss of support, —

and shal be distributed to such persons in the proportions.

determined by the judgment or verdict rendered in said’

action. ° °° provided that every action hereunder shall

be barred unless commenced within one, ‘year next after’

_ the cause of action acerued.”

- We tarn first to the issue of the one-year limitation on

the right to sue, which the Appellate Coutt regarded as .—

_dispositive of this ease. The one-year proviso contained

in the act is a special limitation upon a statutory cause of

action, and as such is distinguishable from the general stat- _

utes of limitation which applied prior to the 1955 amend-

ment to the act. Desiron vy. Peloza, 308 Til. App. 582; Il.

Rev. Stat. 1957, chap. 83, par. 15. ‘

° A similar limitation in the Injuries Act has been repeat-

edly held to be a condition precedeng to the right of recov-

‘ery, which must be observed in all events. (Wilson v.

Tromly, 404 Ill. 307; Fitzpatrick v. Pitcairn, 371 Til. 203;

Hartray y. Chicago Railways Co., 290 Tl. 85.) In addition

to these persuasive authorities, we-held that the legisla-

ture intended to apply the dramshop limitation retroac-

tively to prevent the evil of prolonged liability of dram-

shop owners who rarely have an actual knowledge of the —

events upon which their liability is hased. Orlicki ¥. Mc-

Carthy, + Ill. 2d 342, 353. '

°

The Appellate Courts of this State have consistently

held this special limitation of the Liquor Control Act ap-

plicable to minor plaintiffs. (Shelton v. Woolsey, 20 Il.

App. 2d 401, 405; ‘Steiskal v. Straus, 3 IN. App. 2d 479. )

™. United States count of Appeals for the 7th Circuit

a

(Appendix) — - 3

also specifically found that the special limitation of the

Liquor Control Act is applicable to minors in Seal v.

American Legion Post. No. 492, (7th Cir.) 245 F. 2d 908.

- Because of the plain language of the act, and the evident

purpose of the limitation, we agree with the foregoing au-

thorities. We know of no such compelling reason that

should induce this court to engraft .an exception onto the

plain language of the act. We, therefore, hold that the pres-

ent action involving minor plaintiffs, was required to be

filed ‘“‘within one year next after the cause of action ac-

erued.’’ ze a . @

© This conclusion, however, is not dispositive of ‘the case

_ until it is determined when this cause of action accrued.

While pleintiffs are somewhat vague as to the time they

contend the cause of action accrued, they have” suggested

that this is a type of continuing tort and limitations begin

to run only when the tortious overt acts cease. In support

of this position they cite Rogers v. Dwight, (E.D. Wis.)

145 F. Supp. 537, a Federal trial court decision overruling

a motion to dismiss a dramshop complaint for habitual

drunkenness on the ground that suit was not filed within _

_ two years of the accrual of the cause of action. We do not

regard that case as persuasive authority here, since the

memorandum opinion does not -set forth the pertinent al-

legations of the complaint in that case. 2

In the case at bar, the complaint clearly alleges the con-

--eurrencé of the sale of liquor, the habitual drunkenness,

and the consequent loss of support as early as November |

10, 1954. At that time all of the essential elements of the

alleged-cause of action were in existence, and the cause

of action had accrued. Public. policy does not require that

a dramshop operator be made perpetually liable for the

~ consequences of the sale of liquor. (Orlicki v. McCarthy; 4

; ror.

? ‘ ae .

or

—_— J

s

(Appendix). .

Ill. 2d 342, 353.) The legislature has required that the

beneficiaries of the protection of the Liquor: -Control' Act

niust bring their action-within one year of the accrual cf

the cause of action. We would be unjustified in judicially

legislating an exception in cases of habitual drunkenness:

In a suit under the Liquor Control Act, it is the obliga-

tion of the plaintiffs to allege facts bringing them within

the compass of the act. (Hartray v. Chicago. Railways Co.,

290 TH. 85.) In the ease, at bar, the plaintiffs have failed to

bring themselves within the one-year mapatien and their

complaint w as properly dismissed. :

Plaintiffs howev er, also argue. that the trial court abused

its discretion in refusing to pe rmit them to fiie an amend-

ment to their complaint after the original complaint was

dismissed. The trial judge has broad. dis¢retion in permit-

ting or refusing amendments and we. will review only a

manifest abuse of. such diserction. (Deasey v. City. of Chi-

cago, 412 Tk 151, 156; Joyce v. Blankenship, 399 Til 156.)

In the present case weare powerless to review the exe reise

of discretion by the trial judge, as plaintiffs have faiied to _

incorporate the proferred amendment in their record on

appeal. We must,. therefore, assume that the refusal to

permit such’ an amendment was not prejudicial to plain-

tiffs. .

We believe that the eomplaint was properly dismissed

‘on the ground that, it was not filed within one year next

after the cause of. action, if-any, accrued.

Because of the foregoing conclusions, we hold that the

trial court was correct Yn entering judgment for defend-

ants. The judgment of the Appellate, Court must acceord-

ingly be affirmed,

os . Judgment affirmed.