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Coulson v. Shirks Motor Exp. Corp.

Superior Court of Delaware, New Castle County

August 11, 1954

Jane A. COULSON and George T. Coulson, Administrator of the Estate of Ethel C. Fox, Plaintiffs,
v.
SHIRKS MOTOR EXPRESS CORPORATION, a corporation of the State of Delaware, Defendant.

Action by administrator for special damages and pain sustained by decedent, when the automobile in which she was riding collided with defendant's motor vehicle. Defendant moved to dismiss complaint. The Superior Court, Terry, J., held that Delaware Survival Statute continued in the administrator the decedent's right to recover for personal injuries caused by defendant's negligent act.

Defendant's motion to dismiss complaint denied.

Page 923

[48 Del. 563] Motion to dismiss the complaint as to the administrator's action on the ground that it fails to state any claim against the defendant upon which relief may be granted.

[48 Del. 562] Alexander Nichols (of Morris, Steel, Nichols & Arsht), Wilmington, for plaintiffs.

William Bennethum and Ernest S. Wilson, Jr. (of Morford and Bennethum), Wilmington, for defendant.

TERRY, Judge.

This case relates to a consideration of the provisions of Section 3701, Title 10 Delaware Code 1953, and the proper measure of damages in suits thereunder for injuries which are caused by negligence resulting in death. The act provides ‘ all causes of action, except actions for defamation, malicious prosecution, or upon penal statutes, shall survive to and against the executors or administrators of the person to, or against whom, the cause of action accrued. Accordingly, all actions, so surviving, may be instituted or prosecuted by or against the executors of administrators of the person to or against whom the cause of action accrued. * * *’

Prior to 1949 this statute was found under Section 4637 of the Revised Code of Delaware, 1935. Included, however, within the exception clause of Section 4637 appeared, ‘ or any injury to the person’ . This particular exception was deleted when the statute was amended under the provisions of Chapter 383, Volume 47, Laws of Delaware 1949. Thus, until 1949 no cause of action survived predicated upon ‘ an injury to the person,’ and this case is one of first impression in respect to the meaning to be given to the provisions of the statute as amended in 1949 (now Section 3701) in relation to such actions.

On February 26, 1954, a motor vehicle operated by plaintiff, Jane A. Coulson, collided with a motor vehicle owned by the defendant on Route 13, south of Wilmington. Plaintiff, George T. Coulson's decedent, Ethel C. Fox, was a passenger in the Coulson vehicle.

On April 8, 1954, the complaint was filed wherein a claim was asserted by Jane A. Coulson for personal injuries, and a [48 Del. 564] claim was asserted by the administrator of Ethel C. Fox for special damages and pain resulting from personal injuries sustained by the decedent. (The decedent died as a result of the injuries sustained by her in said collision, but no claim is made in the complaint for damages for the death of the decedent and the loss thus occasioned, nor is it alleged that the decedent died from causes other than those occasioned by the injuries that she sustained in said collision.)

The case is now before me upon the defendant's motion to dismiss the complaint as to the administrator's action on the ground that it fails to state any claim against the defendant upon which relief may be granted.

The substantive question to be determined is: Did the cause of action, as indicated in the complaint, having accrued to the deceased in her lifetime from the alleged negligent act of the defendant, abate when she died, or did it survive so that suit upon it might be instituted and maintained by her administrator? At Common Law the right of action arising from an alleged negligent act of the character charged in the complaint would have abated upon the death of the person so injured. It is a rule of the Common Law that, if an injury were done to the person of another for which damages only could be recovered in satisfaction, the action died with the person to whom the wrong was done.

Under the present statutory law in this State, if a suit for personal injuries is brought during his lifetime by a person injured, no other action of any kind is maintainable even though he subsequently dies of his injuries. His death, however, does not abate the action so brought by him, as ...


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