Howmet Corp. v. City of Wilmington

• Decision Date: 24 November 1971
• Citation: 285 A.2d 423
• Parties: HOWMET CORPORATION v. The CITY OF WILMINGTON.
• Court: Delaware Superior Court

Page 423

285 A.2d 423

HOWMET CORPORATION v. The CITY OF WILMINGTON.

Superior Court of Delaware, New Castle County.

Nov. 24, 1971.

Samuel R. Russell, Ernest S. Wilson, Jr., Wilmington, for plaintiff.

H. James Conaway, Jr., William F. Taylor, Robert H. Dunlap, Wilmington, for defendant.

QUILLEN, Judge.

On June 2, 1971, Howmet Corporation (plaintiff) commenced an action for damages against the City of Wilmington (defendant). The plaintiff alleged that due to Wilmington's negligence, or breach of its contract of bailment, it suffered damage when the City failed to properly store or protect cargo belonging to the plaintiff which was discharged onto an open pier at the Port of Wolmington on November 2, 1965. Defendant presents this motion to dismiss on the ground that plaintiff has failed to state a claim upon which relief can be granted (Superior Court Rules of Civil Procedure, Rule 12(b)(6)), citing Delaware's two (2) year statute of limitations for injury to personal property (10 Del.C. § 8106A).

On October 28, 1966, Howmet filed an action in the United States District Court for the District of Delaware, Civil Action No. 3278, alleging substantially the same claim against Wilmington. Plaintiff maintains that within the meaning of Delaware's saving statute, 10 Del.C. § 8117(a), the federal court action, which was timely brought, 'abated, or the action (was) otherwise avoided or defeated . . . for (a) matter of form.' Plaintiff submits that as the present action was filed within 1 year 'after the abatement or other determination of the original action', as required by the saving statute, that the defendant's motion to dismiss should be denied. 10 Del.C. § 8106A provides:

§ 8106A. Actions subject to two-year limitation

'No action to recover damages for wrongful death or for injury to personal property shall be brought after the expiration of 2 years from the accruing of the cause of action.'

Plaintiff discovered the injury to its personal property on November 10, 1965 (Complaint, 6). As the cause of action in tort accrues at the time of injury (Nardo v. Guido DeAscanis and Sons, Del.Super., 254 A.2d 254 (1969)), unless plaintiff's cause of action falls within one of the provisions of Delaware's saving statute, 10 Del.C. § 8117, defendant's motion to dismiss must be granted.

10 Del.C. § 8117(a) provides:

§ 8117. Other savings

'(a) If in any action duly commenced within the time limited therefor in this chapter, the writ fails of a sufficient service or return by any unavoidable accident, or by any default or neglect of the officer to who it is committed; or if the writ is abated, or the action otherwise avoided or defeated by the death of any party thereto, or for any matter of form; of if after a verdict for the plaintiff, the judgment shall not be given for the plaintiff because of some error appearing on the face of the record which vitiates the proceedings; or if a judgment for the plaintiff is reserved on appeal or a writ of error; a new action may be commenced, for the same cause of action, at any time within 1 year after the abatement or other determination of the original action, or after the reversal of the judgment therein.'

An action must be 'duly commenced . . . within 1 year after the abatement or other determination of the original action . . .' in order to apply § 8117. The first question presented is whether an action which has been dismissed for lack of jurisdiction has been 'duly commenced' within the meaning of § 8117(a).

In Frombach v. Gilbert Associates, Inc., Del.Supr., 236 A.2d 363 (1967), the Delaware Supreme Court commented on the 'commencement' of an action within the meaning of § 8117. In Frombach, plaintiff brought suit in the Federal District Court for the District of Delaware for injuries sustained in Pennsylvania due to defendant's alleged negligence. The action was dismissed for lack of diversity jurisdiction and the plaintiff filed suit in this Court. The Supreme Court, responding to certified questions of first impression, assumed the plaintiff's argument 'that the commencement of a suit in the Federal District Court for Delaware is equivalent to one brought in our Superior Court, within the meaning of our Savings statute (§ 8117); that the reason for dismissal of the Federal Court action is within the scope of that section; and that, therefore, if the tort had occurred in Delaware, the present suit would not be barred.' Frombach v. Gilbert Associates, Inc., supra, 236 A.2d at 365. While the Court did not have occasion to decide this issue, the great weight of authority supports the assumptions made by the Court.

In the leading case of Gaines v. City of New York, 215 N.Y. 533, 109 N.E. 594 (1915), a tort action was instituted within the one year statutory limitation in a New York City court and was dismissed for lack of jurisdiction. Within one year after the action was dismissed but more than one year after the accident, a new action was brought in a court which had jurisdiction. New York's saving statute was similar to § 8117, requiring that an action be 'commenced' within one year of the termination of the original suit. In an opinion by Judge (later United States Supreme Court Justice) Cardozo, the New York Court of Appeals determined at 109 N.E. 596 that:

'The (saving) statute is designed to insure to the diligent suitor the right to hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that, by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts. When that has been done, a mistaken belief that the court has jurisdiction stands on the same plane as any other mistake of law . . . There is nothing in the reason of the rule that calls for a distinction between the consequences of error in respect of the jurisdiction of the court and the consequences of any other error in respect of a suitor's rights . . . A suitor who invokes in good faith the aid of the court of justice, and who initiates a proceeding by the service of process, must be held to have commenced an action within the meaning of this statute, though he has mistaken his forum.'

Although Gaines involved interpretation of a new section of the New York Code, the doctrine of construction set forth 'did not rest on the wording of the new section but on the basic policy of the statute.' Bollinger v. National Fire Insurance Company of Hartford, Connecticut, 25 Cal.2d 399, 154 P.2d 399, 405 (1944). The great weight of authority is in accord with Justice Cardozo's opinion in Gaines. See Annot., 6 A.L.R.3d 1043; Annot., 145 A.L.R. 1185; 17 B.U.L.Rev. 900; and Wasyk v. Trent, 174 Ohio St. 525, 191 N.E.2d 58 (1963). For additional supporting cases, see Bertonazzi v. Hillman, 241 Md. 361, 216 A.2d 723, 727 (1966).

Applying the principles of Gaines to the facts of this case, the first action notified the defendant that resort was to be made to the courts. This is not a situation where the first action was intentionally brought in the wrong court. See Gaines v. City of New York, supra, 109 N.E. at 594. Nor is this a case of such carelessness and negligence by counsel as to preclude the plaintiff from taking advantage of the savings statute. See Smith v. McNeal, 109 U.S. 426, 430, 3 S.Ct. 319, 321, 27 L.Ed. 986 (1883). See also Giles v. Rodolico, 1 Storey 143, 151, 140 A.2d 263, 267 (Del.Supr.1958). In light of these facts and the great weight of authority, this Court believes that the Supreme Court's assumptions in the Frombach case were a correct statement of Delaware law. As a result, the error in bringing the action in the Federal District Court for the District of Delaware, which lacked jurisdiction, did not prevenr the action from being 'duly commenced' within the meaning of 10 Del.C. § 8117(a).

Plaintiff, relying upon Giles v. Rodolico, supra, and Gosnell v. Whetsel, 7 Storey 241, 198 A.2d 924 (Del.Supr.1964), maintains that 'the federal court action was abated within the meaning of § 8117(a)' (plaintiff's brief, p. 8) and that the defendant's motion to dismiss should be denied. Section 8117 specifically provides that if '. . . the writ is abated . . .' a new action may be commenced at any time within one year. The question presented is whether, in a suit dismissed for lack of jurisdiction, the Writ is abated within the meaning of § 8117.

Wolley has defined 'writ' in the sense which it is used...