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DE GROFF v. HUNSICKER

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


April 25, 1956

Lila DE GROFF and George Roerig
v.
Charles HUNSICKER (George Roerig)

The opinion of the court was delivered by: DUSEN

Defendant has filed a motion to dismiss this personal injury action *fn1" on the ground that the action is barred by the period of limitations prescribed in 8-24 of the Code of Virginia, 1950. *fn2" This section contains the following language, which has been in the Virginia statutory law at least since the first half of the 19th Century (see Section 11, Ch. 149, of the Virginia Code of 1849):

'Every personal action, for which no limitation is otherwise prescribed, shall be brought within five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that in case a party die it can be brought by or against his representative; and, if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued.' (Emphasis supplied.)

 Any right to bring the action accrued on September 9, 1951. This suit was instituted on August 21, 1953.

 If this personal injury action is 'for a matter of such nature that in case a party die it can be brought by or against his representative,' the period of limitations had not expired on August 21, 1953, but, if this action is 'for a matter not of such nature,' then the defendant is entitled to have the action dismissed.

 In Anderson v. Hygeia Hotel Co., 1896, 92 Va. 687, 24 S.E. 269, 270, the court pointed out that the language italicized above had reference to the common-law rule that a personal action for damages resulting from injury to persons or property 'died with the person to whom or by whom the wrong was done.' It stated that in 1819 Virginia had (C. 104, ยง 64, of Rev.Code, 1819) adopted the principle of the English statute of 4 Edw. III c. 7, enabling a personal representative to sue or be sued for damages resulting from injuries to property, so that the five-year period of limitations applied to such an action. The court held in the Anderson case that the Virginia Wrongful Death Act (based on Lord Campbell's Act passed by the British Parliament in 1846) established a new cause of action so that this Wrongful Death Act did not bring an action for personal injuries which existed prior to the death of the injured or injuring party within the italicized language. *fn3" Again, in Watson v. Daniel, 1936, 165 Va. 564, 183 S.E. 183, 185, the court said:

 'The test * * * is survivorship. * * * If the claim of the plaintiff would pass to his administrator in the event of his death, then the action survives and the five-year limitation applies. If this claim constitutes a cause of action that survives, then it is a chose in action and is a proper asset for the personal representative in event of plaintiff's death.'

 After compilation of the Official Code of Virginia, 1950, *fn4" Chapter 481 of the Acts of Assembly of Virginia, 1950, p. 948, added a new Section 628.1 to Title 8 of the Code, containing this language:

 'No cause of action for injuries to person or property shall be lost because of the death of the person liable for the injury. No cause of action for injuries to person or property shall be lost because of the death of the person in whose favor the cause of action existed, provided, however, in such action no recovery can be had for mental anguish, pain or suffering.'

 Since the Virginia General Assembly amended this Section 628.1 *fn5" as of June 28, 1952, *fn6" by adding to the last sentence a proviso that no such action for personal injuries may be brought more than one year after the injuries occurred, *fn7" it is not necessary to decide whether this section, as it existed prior to June 28, 1952, affected the period of limitations provided in Section 24 of Title 8. *fn8" The Supreme Court of Appeals of Virginia has held in at least two opinions, which have discussed the subject thoroughly, that the Virginia General Assembly has the power to shorten the time within which existing causes of action may be brought as long as at least 90 days exist between the passage of the Act establishing such shorter period and its effective date. See Allen v. Mottley Construction Co., 1933, 160 Va. 875, 170 S.E. 412; Bank of Chatham v. Waldron, 1948, 188 Va. 68, 49 S.E.2d 277. *fn9" In the Waldron case, the court stated, at page 278 of 49 S.E.2d that it had held:

 '(1) That since a statute of limitation relates to a remedy only and not to a right, it may be made to apply to existing causes of action as well as to those that accrue subsequently.

 '(2) That the period of limitation may be reduced and made to apply to existing causes of action, provided a reasonable time and opportunity are given to persons having such claims to bring their suits or actions before the shorter period becomes effective;

 '(3) That the purpose of the provisions of section 53 of the Constitution, providing that general laws shall not become effective for a period of 90 days from the adjournment of the General Assembly, was to give the people a fair opportunity to acquaint themselves with the provisions of the statutes enacted at a given session, in order that they might institute and prosecute appropriate proceedings for the enforcement of any claims affected thereby.'

 As the above-mentioned proviso uses the term 'no such action,' it includes by its terms any action instituted more than one year after the injuries occurred which is commenced after that proviso became effective. *fn10" Furthermore, since the General Assembly specifically provided in 1954, when it changed the limitation period to two years, that such period should not apply to causes of action arising prior to July 1, 1954, *fn11" the failure to add such a provision to the 1952 amendment indicates an intention to make that 1952 amendment apply to existing causes of action in accordance with the established rule of the highest appellate court of the jurisdiction.

 Since the period of limitations had been reduced to one year by an act effective 6/28/52 (90 days after the adjournment of the 1952 session of the legislature on 3/29/52), which was prior to 9/9/52 (the expiration of a year from the date of the accident), *fn12" this suit was barred by the applicable Virginia statute of limitations when it was commenced in August 1953.


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