dissenting:
The issue before us has been squarely decided by our supreme court in Lowrey v. Malkowski (1960), 29 Ill. 2d 280, 170 N.E.2d 147, cert. denied (1961), 365 U.S. 879, 6 L. Ed. 2d 191, 81 S. Ct. 1029. Because I cannot agree with my colleagues that Lowrey was somehow overruled sub silentio by Wilbon v. D. F. Bast Co. (1978), 73 Ill. 2d 58, 382 N.E.2d 784, 1 must respectfully dissent.
Lowrey involved a suit under the Dramshop Act (Ill. Rev. Stat. 1975, ch. 43, par. 135), brought by a plaintiff on her own behalf and on behalf of two minor children. The suit was not brought within the one-year period specified in the statute. On appeal of the dismissal of the suit our supreme court noted that the one-year provision was a special limitation upon a statutory cause of action and thus was distinguishable from general statutes of limitation which had applied to the Act prior to a 1955 amendment. The court held:
“The Appellate Courts of this State have consistently held this special limitation of the Liquor Control Act applicable to minor plaintiffs. (Shelton v. Woolsey, 20 Ill. App. 2d 401, 405, 156 N.E.2d 241; Steiskal v. Straus, 3 Ill. App. 2d 479.) The United States Court of Appeals for the 7th Circuit also specifically found that the special limitation of the Liquor Control Act is applicable to minors in Seal v. American Legion Post No. 492, (7 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 authorities. 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 present action involving minor plaintiffs, was required to be filed ‘within one year next after the cause of action accrued.’ ” (Lowrey, 20 Ill. 2d 280, 284, 170 N.E.2d 147, 150.)
In so ruling, the court was applying the well-established rule that where a statute creating a right unknown at common law restricts the time within which it may be utilized, the time element is considered to be a condition of the existence of the statutorily created right rather than a statute of limitation. (Smith v. Towman (1938), 368 Ill. 414, 14 N.E.2d 478; Super Valu Stores, Inc. v. Stompanato (1970), 128 Ill. App. 2d 243, 261 N.E.2d 830.) Properly analyzed, Wilbon does not represent a departure from this rule. Rather, the court in Wilbon called into question the assumption that wrongful death actions were nonexistent at common law. The court cited with apparent approval Gaudette v. Webb (1972), 362 Mass. 60, 284 N.E.2d 222, in which the Supreme Judicial Court of Massachusetts, the first Amercian jurisdiction to adopt the English rule barring such claims. (Carey v. Berkshire R. R. Co. (1848), 55 Mass. 475; see Annot. 61 A.L.R.3d 906 (1975)), held that wrongful death actions did have common law origins. The Wilbon court also extensively cited cases and commentators harshly critical of the theoretical basis for denying such claims at common law.
It was only in this context of disapproval if not disavowal of the common law origins of the rule barring wrongful death actions that the Wilbon court took the step to which the majority in this case now leaps, that of considering public policy grounds for excepting minors (and incompetents as well in this cause) from the application of the statutory limitation period. Yet in this cause the parties concede that the statute with which we are concerned is without question solely a creature of statute. We have been presented with no basis for questioning or criticizing this fact, which I believe represents a crucial distinction from Wilbon. Indeed, I believe that the Wilbon court recognized this distinction when it cited Lowrey but noted that Lowrey involved the Dramshop Act.
Three other cases are cited by the majority in support of their decision. McDonald v. City of Spring Valley (1918), 285 Ill. 52, 120 N.E. 476, did not directly address the question of whether the statute at issue in that case created a right unknown at common law. Walgreen Co. v. Industrial Com. (1926), 323 Ill. 194, 153 N.E. 831, construed a statutory limitation period which expressly excepted incompetents. The Walgreen court simply construed the term incompetents to include minors. And in Haymes v. Catholic Bishop of Chicago (1965), 33 Ill. 2d 425, 211 N.E.2d 690, the court held that the statute in question did not create a new cause of action, thus distinguishing it from dramshop actions and, under then established case law, wrongful death actions. Thus I do not find that any of these cases control our decision.
For these reasons I can find no basis for this court to question the continuing validity of Lowrey, a decision that our legislature, which has amended the Dramshop Act on numerous occasions in the interim, has chosen not to disturb.