Homiewicz v. Orlowski

• Decision Date: 03 April 1928
• Court: Delaware Superior Court
• Parties: WASILY HOMIEWICZ, administrator of Alexander Homiewicz, deceased, v. FRANK ORLOWSKI and HELENA ORLOWSKI

143 A. 250

34 Del. 66

WASILY HOMIEWICZ, administrator of Alexander Homiewicz, deceased, v. FRANK ORLOWSKI and HELENA ORLOWSKI

Superior Court of Delaware, New Castle County

April 3, 1928

Superior Court for New Castle County, Trespass on the Case No. 59, September Term, 1926.

The declaration consisted of two counts and alleged that the plaintiff's intestate was injured July 15, 1923, in an automobile accident as a result of the defendant's negligence and died on the same day as a result of his injuries.

Suit was brought June 21, 1926.

The defendants specially pleaded the statute of limitation of one year.

Section 4675 of the Revised Code of Delaware is as follows:

"No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of one year from the date upon which it is claimed that such alleged injuries were sustained."

To this plea plaintiff demurred.

The demurrer to the plea of statute of limitations is sustained.

William Prickett for plaintiff.

Philip L. Garrett for defendants.

PENNEWILL C. J., RICE and RODNEY, J. J., sitting.

OPINION

RODNEY, J.

This case calls for a construction of the Delaware Act commonly called the Death Act, of which Lord Campbell's Act was the prototype, and to determine the statute of limitations applicable thereto. The Delaware act is now found as section 4155 of the Revised Code of 1915 and reads as follows:

"No action brought to recover damages for injuries to the person by negligence or default, shall abate by reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff and prosecute the suit to final judgment and satisfaction.

"Whenever death shall be occasioned by unlawful violence or negligence, and no suit be brought by the party injured to recover damages during his or her life, the widow or widower of any such deceased person, or, if there be no widow or widower, the personal representatives, may maintain an action for and recover damages for the death and loss thus occasioned."

Section 4155, above quoted, was originally passed January 26, 1866, as chapter 31, vol. 13, Laws of Delaware. The two paragraphs of the above section then existed as two separate sections. The first section (the first paragraph of section 4155) was and is purely a survival statute, to prevent the abatement of any suit which had been brought by an injured person in his lifetime. With this we are not concerned.

The second paragraph of section 4155 (section 2 of the original act) does not depend on the first paragraph, but is entirely independent thereof and at its passage introduced into the body of our law entirely new rights upon principles which had theretofore been non-existent. The original section was adopted almost verbatim from the Pennsylvania Act of April 15, 1851 (3 Pepper & Lewis' Digest, col. 5332).

It is apparent that no statute of limitations is made a part of our "Death Act" and the sole question for our determination is the applicability of the one-year limitation governing actions for "personal injuries." The limitation governing the similar Pennsylvania statutory provision was not a part of the original Pennsylvania Act of 1851, but introduced by an amendatory act of April 26, 1855. It is unnecessary now to consider many features of the act under consideration. This court in Perry v. P., B. & W. R. R., 1 Boyce (24 Del.) 399, 77 A. 725, in an exhaustive and carefully considered opinion determined several questions involved in the present discussion. Other features of the act were commented on in Sobolewski v. German, 2 W. W. Harr. (32 Del.) 540, 127 A. 49. In the last cited case there was no necessity to distinguish between the terms "right of action" and "cause of action" and the present writer somewhat incautiously failed to draw such distinction.

The court in Perry v. P., B. & W. R. R., supra, considered the inability of legal recovery for death at common law by reason of the rule "actio personalis moritur cum persona" and showed how this was remedied by the enactment of Lord Campbell's Act in 1846. The court held that the Delaware statute was substantially similar to the English act, the full text of which may be found in Goodyear v. Davis, 114 Kan. 557, 220 P. 282, 39 A. L. R. 576. Statutes involving the general principle of Lord Campbell's Act have, with varying modifications, been enacted in almost all American jurisdictions. The comparative terms of all these statutes may be found as a preface to Tiffany's Death by Wrongful Act (2d Ed. 1913). This great body of statutory law has given rise to a maze of judicial decisions which can only be harmonized by a careful consideration of the statutes upon which they are based. From this great number of judicial decisions, and especially from Perry v. P., B. & W. R. R., and cases construing statutes similar or analogous to our own, certain fixed principles may readily be gathered.

It seems now to be entirely settled that the action given by the Death Act, or as it is called in England "the Fatal Accident Act," is not a continuation of the right of action the injured person would have had if he had not died, but a new and distinct right of action. This new right of action in Delaware from 1866 to 1901 did not seek recovery based on the injuries to the deceased, but arising upon the death of the deceased, was based, in the words of the statute, "for the death thus occasioned"; in 1901 the statute was slightly amended by the inclusion of the word "loss," and the action is now "for the death and loss thus occasioned." While the right of action in behalf of the statutory parties for the death is distinct and separable from the right of action by the injured person for his injuries yet the cause of action is the same, viz., the actionable tort, the cause alike of the injuries and of the death. A clearer conception of the relative rights may be acquired by an arrangement of the...