[58 Del. 146] David B. Coxe, Jr., of Coxe, Booker, Wall & Cobin, and Sidney Balick, of Aerenson & Balick, Wilmington, for plaintiff below, appellant.
Albert L. Simon, Wilmington, for defendant below, appellee.
WOLCOTT and CAREY, Justices, and MARVEL, Vice Chancellor, sitting.
This appeal from the Superior Court seeks reversal of an order granting summary
judgment to the defendant because suit was instituted after the period allowed by our statute of limitations, 10 Del.C. § 8118. Plaintiff contends that his case falls within 10 Del.C. § 8117(a), which provides certain exceptions to the operation of the limitations statute. For present purposes, it is sufficient to quote the following portion of § 8117(a):
'If in any action duly commenced within the time limited therefor in this chapter, * * * the writ is abated, or the action otherwise avoided or defeated by the death of any party thereto, or for any manner of form * * * a new action may be commenced, for the same cause of action, at any time within 1 year after the abatement or other determination of the original action * * *'.
[58 Del. 147] Plaintiff allegedly sustained personal injuries on September 28, 1959 at a store operated by the present defendant, Food Fair Stores, New Castle, Inc., a corporation of Delaware. He filed suit on September 7, 1960 against Food Fair Stores Corporation, a separate corporation. At that time § 8118 required suit to be brought within one year from the date of alleged personal injuries. After the one-year period had expired, Food Fair Stores Corporation moved for summary judgment on the ground that it did not own or operate the store at which plaintiff was injured. Plaintiff thereupon moved, under Superior Court Rule 15(a), Del.C.Ann., to amend his complaint by substituting Food Fair Stores, New Castle, Inc. as defendant in that case. The motion was granted by the Superior Court but its action was reversed by this Court and judgment was entered for the defendant. Food Fair Stores Corporation v. Vari, Del.,191 A.2d 257.
After the entry of final judgment in the original action, plaintiff instituted this second suit, in which the correct corporation is party defendant. The Superior Court granted defendant's motion for summary judgment, holding that § 8117(a) is applicable only in instances where the second suit is against the same party defendant.
We do not understand plaintiff to disagree with the basic principle that a savings statute such as § 8117(a) does not apply when the new action is brought against a different defendant than was the first one. We are not aware of any Delaware decision which has heretofore considered this principle, but we are convinced that it is sound. It is supported by the overwhelming weight of authority. Luft v. Factory Mutual Liability Ins. Co.,51 R.I. 452, 155 A. 526, 83 A.L.R. 745; Sheldon & Co. v. Emory University,184 Ga. 440, 191 S.E. 497; and Town of Clendenin ex rel. Fields v. Ledsome,129 W.Va. 388, 40 S.E.2d 849; 34 Am.Jur. 232; 54 C.J.S. Limitations of Actions § 293, p. 362.
There are cases to be found in which the Courts have applied the protection of similar statutes where the defendant was a different person but, as far as we can find, they have invariably been instances where the change in parties was nominal, or the second defendant was a [58 Del. 148] successor in interest. Many cases are cited in the annotation in 3 A.L.R. 826. Some examples are these: the second defendant was the successor administrator; the second defendant was the executor of the first one; the second defendant was a corporation which resulted from the merger of the first defendant and another corporation; the second defendant purchased the assets and assumed the liabilities of the first defendant, a corporation.
Plaintiff contends that, for present purposes, these two defendants should be treated as one because both corporations have the same resident agent and at least two officers in common. This contention we cannot accept. Practically the same argument was advanced in the ...