Patterson v. Vincent

• Citation: 61 A.2d 416,44 Del. 442
• Decision Date: 26 August 1948
• Docket Number: 10
• Court: Superior Court of Delaware
• Parties: HELEN V. PATTERSON v. FRANK B. VINCENT, WILLIAM O. SMITH and JAMES A. BOUNDS

61 A.2d 416

44 Del. 442

HELEN V. PATTERSON v. FRANK B. VINCENT, WILLIAM O. SMITH and JAMES A. BOUNDS

No. 10

Superior Court of Delaware, Sussex

August 26, 1948

Daniel J. Layton, Jr., for plaintiff.

James M. Tunnell, Sr. (of the firm of Tunnell and Tunnell) for defendants Vincent and Smith.

Robert H. Richards, Jr. (of the firm of Richards, Layton and Finger) for defendant Bounds.

CAREY J., sitting.

OPINION

CAREY, J.

Prior to the adoption of the new rules of procedure in this State the statute of limitations could be raised only by an affirmative plea and its application in any given case could not be tested by a demurrer to the declaration, even though the declaration showed on its face that the action might be barred. 1 Woolley's Del. Prac. 373. The new rules of procedure incorporated verbatim under their same designation Rules 9(f) and 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Under 9(f), for the purpose of testing the sufficiency of a pleading, averments of time are material, and, under 12(b), the failure to state a claim upon which relief can be granted is a defense which may be made by motion. In the vast majority of federal cases where the matter has been considered, it has been held that the defense of limitations may be raised by motion to dismiss when the complaint itself shows that the action was not brought within the statutory period. 2 Moore's Federal Practice (2d Ed.) 2257, Sec. 12.10. In those instances where our present rule is exactly the same as the Federal rule, it is desirable to follow the interpretation placed upon it by the Federal Courts, especially where those Courts have been so nearly unanimous in their rulings, unless some good reason appears for adopting a contrary construction. I am therefore of the opinion that the motion to dismiss is a proper way of presenting this particular defense in this case. In fact, the plaintiff has not questioned this procedure.

In her brief, the plaintiff expressly admits that whatever statute of limitations is applicable would commence to run on the date the poisonous compound was prescribed and furnished to the plaintiff, i.e., March 26, 1946, and not on the date she discovered the injury. The sole question for determination, therefore, is whether the one-year limitation on actions for personal injuries applies to this case, or whether the general three-year limitation is applicable.

It will be noted that the Act here involved is in no way concerned with the form of action that is brought. Furthermore, the Act is not expressly limited, as are statutes in some states, to injuries caused in any certain manner. On its face, it plainly covers all actions for the recovery of damages upon a claim for personal injuries. Many of the cases cited by the plaintiff are therefore not in point because the decisions are based upon statutes which are expressly limited to injuries caused by an assault, and the Courts have held malpractice not to be such an assault as is contemplated by the statute. This is true of McClees v. Cohen, 158 Md. 60, 148 A. 124; Burke v. Maryland, 149 Minn. 481, 184 N.W. 32; Francis v. Brooks, 24 Ohio App. 136, 156 N.E. 609; White v. Hirshfield, 108 Okl. 263, 236 P. 406.

Likewise, those few cases cited in the annotations found in 1 A.L.R. 1313 and 62 A.L.R. 1417, wherein the decisions turned upon a distinction in the form of action, are not applicable. In them, the result depended upon whether the suit was in reality a contract or a tort action. As indicated above, our statute contains no such distinction but, on the other hand, applies the limitation to all actions for personal injuries. Under the express wording of this statute, it makes no difference whether a claim for malpractice is based upon a breach of contract or upon negligence, nor does it matter whether the plaintiff has an election between the two forms of action.

Those cases in which Courts have interpreted a statute similar to ours are in accord with what has been said above. I fully agree with what was said in Bodne v. Austin, 156 Tenn. 353, 2 S.W. 2d 100, 62 A.L.R. 1410, and Klingbeil v. Saucerman, 165 Wis. 60, 160 N.W. 1051, 1 A.L.R. 1311. In both of them, the statute was almost identical with ours.

The plaintiff relies rather heavily upon the case of Menefee v....