Hurwitch v. Adams

• Decision Date: 30 October 1959
• Citation: 52 Del. 247,155 A.2d 591,2 Storey 247
• Parties: , 52 Del. 247 Stanley HURWITCH, by Frances Goldberg, his next friend, Plaintiff Below, Appellant, v. Talbert Lee ADAMS, Defendant Below, Appellee. Peter KOHANOVICH, Appellant, v. Cleo L. YOUREE, Appellee.
• Court: Supreme Court of Delaware

Page 591

155 A.2d 591

2 Storey 247, 52 Del. 247

Stanley HURWITCH, by Frances Goldberg, his next friend, Plaintiff Below, Appellant, v. Talbert Lee ADAMS, Defendant Below, Appellee.

Peter KOHANOVICH, Appellant, v. Cleo L. YOUREE, Appellee.

Supreme Court of Delaware.

Oct. 30, 1959.

Reargument Denied Nov. 25, 1959.

John Biggs, III, and John Merwin Bader, Wilmington, for appellants.

George L. Sands (of Mortenson & Sands), Wilmington, for Talbert Lee Adams, appellee.

William F. Taylor, Wilmington (of Morford, Young & Conaway), Wilmington, for Cleo L. Youree, appellee.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

WOLCOTT, Judge.

These two appeals, involving different facts but similar questions of law, were consolidated in this court for argument.

No. 45, 1959 is an action to recover damages for personal injuries arising out of a motor vehicle accident in Delaware on November 7, 1955. All of the parties involved in the accident were non-residents of Delaware. The appellee, Adams, at the time of the accident, was driving an automobile owned by his co-defendant who has not been joined in this appeal. At the time of the accident both the appellee and his co-defendant were members of the military service. The appellee was discharged from military service on March 26, 1957. The co-defendant still remains in the military service and remains a defendant in the action pending below. The action was commenced on May 6, 1958 with substituted service upon the defendants being obtained under 10 Del.C. § 3112 (Non-Resident Motorist Act), two years and seven months after the happening of the accident and more than one year after the discharge of the appellee from military service.

No. 47, 1959 is an action seeking to recover damages for personal injuries resulting from a motor vehicle accident occurring in Delaware on April 24, 1956. At the time of the accident the appellee, Youree, was a non-resident of Delaware. The action was commenced on September 6, 1957, more than one year after the occurrence of the accident, and substituted service of process was made upon the appellee under 10 Del.C. § 3112. The appellee at the time of the accident was not in military service, nor does it appear that he is in such service now.

In the court below in both cases, inter alia, the defense of the one-year statute of limitations on actions for personal injuries (10 Del.C. § 8118) was interposed by all defendants, who moved to dismiss. The co-defendant in No. 45, 1959, still being in military service, subsequently withdrew his motion to dismiss by reason of 50 U.S.C.A.Appendix, § 525 (The Soldiers' and Sailors' Relief Act).

The Superior Court filed an opinion in No. 45, 1959 dismissing the action as to the appellee in that cause, and, on the authority of that opinion, an order was entered dismissing No. 47, 1959. From these orders of dismissal, the plaintiffs in both actions now appeal.

Two questions are presented for our decision:

I. Is the Delaware one-year statute of limitations on actions for personal injuries (10 Del.C. § 8118) tolled by reason of 10 Del.C. § 8116 which prevents the running of statutes of limitations by reason of a defendant's absence from the state?

II. Does the Soldiers' and Sailors' Relief Act (50 U.S.C.A.Appendix, § 525) toll 10 Del.C. § 8118 not only as to a serviceman defendant but also as to a civilian co-defendant?

A further point raised below in No. 45, 195, to the effect that 10 Del.C. § 8118 is tolled by reason of the alleged incompetency of the appellant, has been abandoned in this court.

We consider first Question No. I.

By 10 Del.C. § 8118 it is provided that no action for the recovery of damages resulting from personal injuries shall be brought after the expiration of one year from the date upon which the injuries were sustained.

By 10 Del.C. § 8116 it is provided that certain circumstances will toll the running of all Delaware statutes of limitations. For convenience, we set forth the statute in full:

'If at the time when a cause of action accrues against any person, he is out of the State, the action may be commenced, within the time limited therefor in this chapter, after such person comes into the State in such manner that by reasonable diligence, he may be served with process. If, after a cause of action shall have accrued against any person, he departs from and resides or remains out of the State, the time of his absence until he shall have returned into the State in the manner provided in this section, shall not be taken as any part of the time limited for the commencement of the action.'

The effect of the two cited code sections was considered by this court's predecessor in Lewis v. Pawnee Bill's Wild West Co., 6 Pennewill 316, 66 A. 471. In that case the two cited statutes were construed and it was held that the then statute, now found as 10 Del.C. § 8118, was not subject to the exceptions of the statute now found as 10 Del.C. § 8116. The first code section was the last enacted law and no exceptions being found in its text to prevent the running of the statute of limitations, the Supreme Court held that none could be written in by judicial construction. The holding was based upon the elementary rule that where language of a statute is unambiguous, its meaning is that which is plainly expressed, and there is, thus, no necessity for judicial construction.

The court went on to point out that the plaintiff could at any time after the injury complained of have commenced an action by foreign attachment within the permissible period and, thereafter, kept it alive by alias and pluries writs until the defendant brought its property within the state and thus subject to process.

Subsequently, in Red Men's Fraternal Accident Ass'n of America v. Merritt, 2 W.W.Harr. 1, 117 A. 284 a plea of the statute of limitations raised by the defendant, a Massachusetts corporation, was upheld as not falling within the purview of the exceptions contained in what is now 10 Del.C. § 8116. The rationale of the decision was that the defendant foreign corporation in order to do business in Delaware necessarily was required by statute to designate the Insurance Commissioner of the state as its agent for the service of process and that, accordingly, suit could have been started within the permissible period and service obtained over the defendant.

To the same effect is Klein v. Lionel Corp., 130 F.Supp. 725, in which case the Federal District Court applied Delaware law and held that 10 Del.C. § 8116 had no application to a case in which during the limitation period the defendant was amenable to personal service.

The foregoing cases, we think, taken together, demonstrate that 10 Del.C. § 8116 has no tolling effect on the applicable statute of limitations when the defendant in the suit is subject to personal or other service to compel his appearance. Throughout the one-year periods following these accidents, all of the defendants named below could have been served by substitution under 10 Del.C. § 3112, a statute designed to obtain jurisdiction over non-residents using Delaware highways. As far as due process of law is concerned, such service is the equivalent of personal service.

Under the circumstances, therefore, we are of the view that there was no tolling of the one-year statute of limitations because of the fact that the defendants were non-residents.

However, the appellants argue to the contrary. First, it is said that 10 Del.C. § 8116 is plain on its face and that it applies in any action in which the defendant is a non-resident. We think this argument if accepted, would result in the abolition of the defense of statutes of limitation in actions involving non-residents, but the answer to the argument lies in the direct holding of the Pawnee Bill case to the contrary.

The appellants further argue that since 10 Del.C. § 8116 contains within itself no exception to the operating of its provisions with respect to the statute of limitations on actions for personal injuries, the teaching of the Pawnee Bill case must be applied to hold that the statute of limitations is in fact tolled. If we understand the argument thus made, it is an attempt to argue in reverse the argument that was rejected in the Pawnee Bill case. As such, it of coure also finds its answer in the ruling of the Pawnee Bill case that the two code sections are completely independent of each other.

In any event, whatever the precise argument made may be, we think that the Delaware statute of limitations on actions for personal injuries runs continuously without interruption when there is available to the plaintiff throughout the period an acceptable means of bringing the defendant into court. Therefore, the answer to the first question posed is that there has been no tolling of the statute of limitations since these defendants, at all times, were subject to substituted service.

We now turn to the second question presented.

The Soldiers' and Sailors' Relief Act has as its purpose the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in the military services of the United States. To accomplish this purpose, it is provided that no applicable statute of limitations shall run against or for the benefit of such...