Nigro v. Flinn

• Decision Date: 21 June 1937
• Citation: 192 A. 685,38 Del. 368
• Court: Delaware Superior Court
• Parties: LILLIAN M. NIGRO v. FRANKLIN V. FLINN

192 A. 685

38 Del. 368

LILLIAN M. NIGRO v. FRANKLIN V. FLINN

Superior Court of Delaware, New Castle County

June 21, 1937

Superior Court for New Castle County, No. 180, September Term, 1936.

Demurrer to plea of statute of limitations.

The plaintiff sued to recover damages for personal injuries. From the declaration it appeared that on October 11, 1922, the plaintiff, then of the age of seven years, was injured through the negligent operation of an automobile by the defendant; and that the plaintiff arrived at the age of twenty-one years on August 17, 1936, on which date suit was brought.

One of the defendant's pleas was the statute of limitations, to which a general demurrer was filed.

Chapter 594, Volume 20, Delaware Laws, passed May 28, 1897, provided that

"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."

This enactment appears in Chapter 146, Rev. Code 1915, under the heading "Limitation of Personal Actions," as 4675 Sec. 10. The prior Sections of the Chapter, 4666, Sec. 1 to 4674. Sec. 9, are concerned with actions on recognizances administration and official bonds, certain enumerated personal actions, actions on promissory notes, and actions for mesne profits. The three following Sections, 4676. Sec 11 to 4678. Sec. 13, have to do with actions of waste, on bonds of corporate officers and with penal actions.

4679. Sec. 14 provides,

"If a person entitled to any action comprehended within either of the foregoing provisions, shall have been, at the time of the accruing of the cause of such action, under disability of infancy * * * this chapter shall not be a bar to such action during the continuance of such disability, nor until the expiration of three years from the removal thereof."

The Sections of the Chapter, 4666. Sec. 1 to 4679. Sec. 14, excepting 4675. Sec. 10, were Sections 1 to 13 of Chapter 123, Rev. Code 1852, and the same Sections of the same Chapter of the Revision of 1874 and 1893.

In Lewis v. Pawnee Bill's Wild West Co., 6 Penne. 316, 66 A. 471, 16 Ann. Cas. 903, the Supreme Court held that Chapter 594, Vol. 20, Del. Laws (4675. Sec. 10, Rev. Code 1915) was a special statute limiting the bringing of actions for the designated causes to one year after the accrual of the cause of action, and that it was not subject to the savings and exceptions of the general statute of limitations (Chapter 123 of the Revision of 1893).

The Revised Code of 1915 was authorized by Joint Resolution, Chapter 253, Vol. 25, Laws of Delaware. By Section 3 of the Joint Resolution the Commissioners were directed to revise, codify, and arrange in a systematic and condensed form, all of the exisiting statute laws of the State of a public and general nature, under appropriate titles, but in no case to omit, add to, amend, alter, change or vary the meaning of any existing law; and in the preface to the Code after quoting in full Section 3 of the Joint Resolution, the Commissioners said:

"The Codifiers have endeavored to present the law as it existed in the Code of 1852 and the statutes subsequently passed."

Sections 1 and 2 of Chapter 157 of the Revision of 1915 (Sections 4897, 4898) provides that all the provisions contained therein shall take effect and go into operation from and after January 1, 1915, and from that date, the Code shall be received in use, and shall supersede all prior Codes, Statutes and parts of Statutes; and that all prior Codes and parts thereof and all prior Statutes and parts thereof, the subjects whereof are revised and reenacted in the Code are repealed from and after January 1, 1915.

The plaintiff contended that the Code of 1915 became the law of the State; and that, consequently, 4675. Sec. 10, by the force of the language of 4679. Sec. 14, came within its comprehension, so that if a minor suffered personal injury, the disability of infancy would not constitute a bar to an action brought to recover damages therefor during the continuance of the disability, nor until the expiration of three years from the removal thereof.

The demurrer to the plea is overruled.

W. Thomas Knowles for plaintiff.

Aaron Finger (of Richards, Layton and Finger) for defendant.

LAYTON, C. J., RODNEY and SPEAKMAN, J. J., sitting.

OPINION

LAYTON, C. J.

The question raised by the demurrer is whether an action to recover damages for personal injuries is barred absolutely after the expiration of one year from the accural of the cause, as provided by Section 10 of Chapter 146 of the Revised Code of 1915, notwithstanding the saving of the disability of infancy contained in Section 14.

The plaintiff contends that the Act adopting the Revision repealed all pre-existing statutory law, and enacted a new body thereof; that the meaning and effect of Section 10 must be determined from the language of Chapter 146; and that as the language of that Chapter, considered as a whole, is plain, clear and free from ambiguity, resort may not be had to construction. Wherefore, it is urged, actions for personal injuries are subject to the exceptions contained in Section 14, because such action is within one of the "foregoing provisions."

It must first be determined, however, whether the plaintiff's premise, that the Legislature enacted a new body of statutory law, is to be accepted.

The command of the Legislature to the Commissioners, as expressed by the Joint Resolution, was to revise, codify and arrange in a systematic and condensed form, all of the existing statute laws of the State of a public and general nature under appropriate titles, but in no case to omit, add to, amend, alter, change or vary the meaning of any existing law. The purpose of the Legislature was to provide for a compilation of the existing statutes of a public and general nature, and words could not be found to express more precisely the purpose. A code, in a strict sense, embracing all of the law of the State from whatever source derived, the common law, the constitution of the State, the decisions of the Supreme Court, and the ancient English Statutes in force in the State, was not within the contemplation of the Legislature. See 6 Am. & Eng. Ency. Law (2d Ed.) 173; Central of Ga. Ry. Co. v. State, 104 Ga. 831, 31 S.E. 531, 42 L. R. A. 518; Gibson v. State, 214 Ala. 38, 106 So. 231. The Commissioners have declared that they endeavored to present the law as it existed in the Code of 1852 and the statutes subsequently passed. There is nothing in the act adopting the Revision of 1915 to indicate that the Legislature intended to deviate from the purpose expressed in the Joint Resolution.

The Supreme Court, in Lewis v. Pawnee Bill's Wild West Co., supra, in construing Chapter 594, Volume 20, Laws of Delaware, embodied in the Revision of 1915 as Section 10 of Chapter 146, said that it contained no saving clause and no reference to any saving clause in any other statute; that it did not purport to be an amendment or supplement to the general statute of limitations (Chapter 123 of the Revision of 1893); and that the Legislature intended it to operate as a special statute of limitations with respect to the causes of actions designated for the reason that in such actions, the evidence, being usually oral, was likely to be lost by death or absence of witnesses, failure of memory and other causes. The effect of the construction given to the Act was to add to it a provision that it was not subject to the exceptions of the general statute of limitations, and the construction became as much a part of the Act as if plainly written into it originally. Annie Kealoha et al. v. Castle, 210 U.S. 149, 28 S.Ct. 684, 52 L.Ed. 998. The Act was passed in 1897. The Supreme Court construed it in 1907, and the construction placed upon it was supported by long acquiescence, evidence of a high character that the construction was in accord with the legislative intent. See 59 C. J. 1037.

As construed and acquiesced in, the Act found its way into the Revision of 1915 as Section 10 of Chapter 146 (Section 4675), which is the general statute of limitations.

Where a statute is embodied in a revision or codification without subsequent change of language, it is considered as a continuance of the old law with the same meaning and effect, and not as a new and original enactment, unless there is a plain indication of legislative intent to alter the law; and a mere separation of sections of an act and a rearrangement of them in different connections does not, in the absence of intent so to do, change the purpose, operation and effect of the original statute. 59 C. J. 897; 2 Lewis' Sutherland, Stat. Cons., § 451; 25 R. C. L. 1075; Anderson v. Pacific Coast S. S. Co., 225 U.S. 187, 32 S.Ct. 626, 56 L.Ed. 1047; Byfield v. City of Newton, 247 Mass. 46, 141 N.E. 658; Knight v. Freeholders of Ocean County, 49 N.J.L. 485, 12 A. 625; King v. Smith, 91 N.J.L. 648, 103 A. 191; Martin v. Dyer-Kane Co., 113 N. J. Eq. 88, 166 A. 227; Leonard v. Leonia Heights Land Co., 81 N. J. Eq. 489, 87 A. 645, Ann. Cas. 1914 C, 749.

Braun v. State, 40 Tex. Cr. R. 236, 49 S.W. 620, presents a situation markedly similar to the one under consideration. There it was said that the general presumption will be indulged that the codifiers did not intend to change the laws as they formerly stood, their functions being merely to bring forward and arrange them, and that the Legislature, in codifying the laws, intended to bring them forward, giving them the same effect which they formerly had.

In Hudson v. Flood, 5 Boyce (28 Del.) 450, 94 A. 760, the question was whether a beneficiary under a will was a credible witness thereto under Section ...