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Associated Transport, Inc. v. Pusey

Superior Court of Delaware, New Castle County

August 5, 1955

ASSOCIATED TRANSPORT, Inc., Plaintiff,
v.
William Francis PUSEY, Defendant.

On Reargument.

Action for property damage resulting from motor vehicle collision. On defendant's motion to amend answer to plead statute of limitations, the Superior Court, Herrmann, J., held that action was not barred by three-year statute of limitations, where collision occurred on February 27, 1952, February 27, 1955, fell on a Sunday, and complaint was filed on Monday, February 28.

Motion to amend answer denied.

Page 363

Upon the defendant's motion to amend his answer to plead the statute of limitations. Motion denied.

Albert L. Simon and Stephen E. Hamilton, Jr., Wilmington, for plaintiff.

Stewart Lynch (of Hastings, Lynch & Taylor) Wilmington, for defendant.

HERRMANN, Judge.

The sole question is whether a period of limitations runs to the following day when the last day of the period falls upon Sunday.

This is an action for property damage resulting from a motor vehicle collision which occurred on February 27, 1952. The complaint was filed on Monday, February 28, 1955. The pertinent statute of limitations provides that no such action ‘ shall be brought after the expiration of three years from the accruing of the cause of such action’ .10 Del.C. § 8106. It is conceded [49 Del. 415] by both parties that the last day of the period of limitations fell on Sunday, February 27, 1955. Compare Molina v. Anchor Motor Freight, Inc., etc., 8 Terry 432, 92 A.2d 294. The plaintiff contends that the final Sunday being dies non, and thus excluded from the computation, the time for bringing this action ran to Monday, February 28, 1955. The defendant contends that the three-year statute of limitations is clear and unequivocal, that the Court does not have the power to read an exception or extension into the statute and that, therefore, the action is barred.

There is diversity of opinion elsewhere on the question. See Annotation 20 A.L.R.2d 1249, 1258. No reported decision has been found settling the matter in this jurisdiction.

I am of the opinion that it is the law of this State that where the last day of the period prescribed by a statute of limitations for commencing an action falls on a Sunday, such action is not barred if commenced on the next day which is not dies non juridicus.

Page 364

At common law, Sunday was dies non juridicus and an act could be performed on the following Monday where the last day upon which it could or should have been done fell on Sunday. SeeSherwood Bros. v. District of Columbia, 72 App.D.C. 155, 113 F.2d 162; Ferd. Mulhens, Inc., v. Higgins, D.C.S.D.N.Y., 55 F.Supp. 42; Yuri Yajima v. United States, D.C.E.D.N.Y., 6 F.R.D. 260. In Delaware, Sunday has always been recognized as dies non and the common law must be announced as the law of this jurisdiction unless it has been repealed, expressly or by necessary implication. It may not be presumed that a change in the common law was intended beyond that which is clearly indicated by express terms or by necessary implication from the language used. The statute of limitations does not expressly change the common law rule nor is there repeal by necessary implication. Repeal of the common law by implication is not favored and change by implication may be announced only in clear cases. [49 Del. 416] Cohen v. Krigstein, Del.Super.,114 A.2d 225; 1 Woolley on Delaware Practice, ...


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