Lewis v. Pawnee Bill's Wild West Company

• Citation: 21 Del. 397,61 A. 868
• Parties: MARY E. LEWIS v. PAWNEE BILL'S WILD WEST COMPANY
• Decision Date: 18 September 1905
• Court: Superior Court of Delaware

61 A. 868

21 Del. 397

MARY E. LEWIS v. PAWNEE BILL'S WILD WEST COMPANY

Superior Court of Delaware, New Castle County

September 18, 1905

Superior Court, New Castle County, September Term, 1905.

ACTION ON THE CASE (No. 3, September Term, 1904).

Demurrer to replication.

The demurrer is sustained.

Robert H. Richards and John B. Hutton for plaintiff.

William S. Hilles and Frank M. Davis for defendant.

LORE C. J., and PENNEWILL and BOYCE, J. J., sitting.

OPINION

LORE C. J.

:--The plaintiff's cause of action set forth in the declaration in this case, is to recover for personal injuries alleged to have been sustained by the negligence of the plaintiff, on May 5th, 1902, by the falling of seats negligently constructed at one of the defendant's show exhibitions at Dover in this State.

The action was instituted May 31, 1904.

The defendant pleaded the statute of limitations. The plaintiff replied that the defendant at the time of the accident was a foreign corporation, doing business in this State without having first complied with the laws thereof; that it had personal property in this State at the time and soon thereafter moved it out of the State, and did not have any property in the State since then, so as to be served with process, until about the time this action was brought.

To this replication defendant demurred generally.

The single question is whether this case comes within the exception of the statute of limitations.

Chapter 594, Volume 20, Laws of Delaware, provides as follows:

"Section 1. That from and after the passage of this act 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.

"Section 2. That this act shall de deemed and taken to be a public act." Passed at Dover, May 28, 1897.

Section 14, Chapter 123, Revised Code of 1893, relating to ilmitation of personal actions reads as follows:

"Section 14. If at the time when a cause of action accrues against any person, he shall be out of the State, the action may be commenced, within the time herein limited therefor, after such person shall come into the State in such manner that, by reasonable diligence, he may be served with process; and if after a cause of action shall have accrued against any person, he shall depart from and reside out of the State, the time of his absence until he shall have returned into the State in manner aforesaid, shall not be taken as any part of the time limited for the commencement of the action."

The plaintiff urges, that the latter clause of said Section 14 of Chapter 123 covers this case, and should be read into and taken as a part of the act of 1897 before quoted, for the reason that the defendant removed its property out of the State soon after the accident, and did not have property in the State again, so that by reasonable diligence it could be served with process, until this action was brought.

The act of 1897 does not purport upon its face to be an amendment of, or a supplement to Chapter 123. It contains no exception, but declares simply and baldly that thereafter "no action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of one year from date upon which it is claimed that such alleged injuries were sustained."

It is true it deals with a particular class of cases embraced in actions upon the case named in the general statute of...