Opinion
October 30, 1952.
LAYTON, J., sitting.
August F. Walz and Clarence W. Taylor (of Hastings, Stockly and Walz), Attorneys for Plaintiffs.
William H. Bennethum (of Morford, Bennethum, Marvel and Cooch), Attorney for Defendants.
Motion to dismiss. Denied.
Plaintiffs filed suit for injuries incurred in a collision with defendant's truck on May 28, 1951. The suit was filed May 28, 1952. The motion to dismiss is predicated upon the argument that, since the accident happened, and the cause of action accrued on May 28, 1951, § 5133 of the Revised Code of Del. 1935 barring actions for personal injuries "after the expiration of one year from the date upon which it is claimed that such alleged injuries were sustained", cuts off the claim as of midnight on May 27, 1952. Or, to state it differently, the contention is that in computing the period of time granted by the statute, the day of the injury must be included.
Superior Court for New Castle County, No. 444, Civil Action, 1952.
I am cited to no Delaware authority directly on point. However, the general rule in this State is that in the absence of anything showing a contrary intent, the first day should be excluded but the day on which the act is to be done should be included. Standard Scale Supply Corp. v. Chappell, 16 Del. Ch. 331, 141 A. 191, Del. Sup. Ct.; Simkin v. Cole, 2 W.W. Harr. 271, 122 A. 191, Del. Super. Ct. This represents the great weight of authority throughout the country. 34 Am. Jur. Limitation of Actions, § 252. In a large number of jurisdictions the general rule has been applied in computing the period of time prescribed by a statute of limitations without regard for the literal language of the particular statute, which frequently, as in the case here, seems to require the day of the injury to be included. See annotation in 20 A.L.R. 2d, 1249. Compare also Griffith v. Griffith, 1 W.W. Harr. 1, 108 A. 209, Del. Super. Ct.; Short Walls Lumber Co. v. Shestack, 1 Terry 214, 8 A.2d 83, Del. Super. Ct., and State v. Homiak, 6 W.W. Harr. 188, 172 A. 838, Del. Ct. Gen. Sess.
Defendant has filed quite an exhaustive brief on this proposition and it must be conceded that, bearing the terminology of the act in mind, its argument is not illogical. However, in view of the vast amount of authority to the contrary, I feel I have no recourse but to deny the motion to dismiss.