Thomas G. GOLDSBERRY, Plaintiff,
FRANK CLENDANIEL, Inc., a corporation of the State of Delaware, and Charles Leon Duker, Defendants and Third-Party Plaintiffs (Charles Frederick ZINK, Jr., Third-Party Defendant).
Personal injury action. The defendant filed a third-party complaint and third-party defendant pleaded statute of limitations. The Superior Court for Sussex County, Layton, J., held that third-party complaint was not barred by statute of limitations on claims for personal injuries, since the third-party complaint was not in the nature of action for personal injuries but one for contribution.
Plea of statute of limitations denied.
See also 101 A.2d 805.
On July 18, 1952, a truck owned by Frank Clendaniel, Inc., collided with an automobile owned and operated by Zink. Goldsberry, a passenger in Zink's car, instituted action for personal injuries against Clendaniel and on December 15, 1953, more than a year after the accident, Clendaniel filed a third-party complaint against Zink. Zink immediately interposed a plea of the Statute of Limitations.
Title 10 Del.C.1953, § 8118 provides that no action for damages ‘ upon a claim for alleged personal injuries' shall be brought more than one year from the date the injuries were incurred.
Title 10 Del.C.1953, § 8106 fixes a three-year period of limitations for all actions based upon a statute.
Rule 14 of the Rules of this Court, Del.C.Ann., concerning third-party practice states:
[49 Del. 71] ‘ (a) When Defendant May Bring in Third Party. Before the service of his answer, a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve process and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. If the motion is granted and the process and complaint are served, the person so served, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff's claim as provided in Rule 12 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff and the third-party defendant thereupon shall assert his defenses as provided in Rule 12 and his counterclaim and cross-claim as provided in Rule 13. A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant.
‘ (b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under the circumstances which under this rule would entitle a defendant to do so.’
[49 Del. 70] Everett F. Warrington, Georgetown, Del., for defendants and third-party plaintiffs.
Ernest S. Wilson, Jr., of Morford & Bennethum, Wilmington Del., for third-party defendant.
Whether or not the Statute of Limitations of one year bars a third-party claim under Rule 14 presents an interesting and little discussed problem. Gray v. Hartford Accident & Indemnity Co., D.C., 36 F.Supp. 780 and [49 Del. 72]Adam v. Vacquier, D.C.,
48 F.Supp. 275, are the only authorities cited as being squarely on point.
Both decisions hold that the filing of a third-party complaint is not barred
by limitations. In the Gray case, a Louisiana statute provided that an
action brought against one of two or more joint tortfeasors tolls the
running of the Statute of Limitations as to the other joint tortfeasors. The Court, held that the Louisiana Statute of Limitations would not be a bar to the filing of a third-party claim. The result is not only logical but obviously was dictated by the local statute. But in the Adam case, the Court in arriving at the same conclusion, although not faced with a similar statute, simply cited the Gray case for its authority. Curiously enough, leading texts such as Moore's Federal Practice, Vol. 3, Sec. 14.09 cite the Adam case as an authority apparently overlooking the faulty premise upon which the decision rests.
I prefer the result reached in the Adam case but
based upon other reasons. In Delaware, the right of contribution exists
among joint tortfeasors, Title 10 Del.C. § 6302. The Statute of Limitations with which we are here concerned bars the bringing of an action for personal injuries after one year from the time when the injuries were sustained. Rule 14 provides that defendant may implead
a third-party defendant by filing a third-party complaint against him. The
very great majority of personal injury actions in which contribution is
sought result either from automobile accidents (where service can be
obtained on a foreign defendant by service upon his Secretary of State) or,
if in other kinds of actions, then where service can be readily [49 Del. 73]
made in the same state upon all joint tortfeasors. And while nothing in the law specifically prohibits separate suits to enforce the right contribution, practical reasons would discourage the practice.