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Wolfe v. Baltimore & Philadelphia Steamboat Co.

29 Del. 352 6 Boyce 352 Court Superior Court, New Castle County, Decision date 1916-06-07 Docket No. 63 English

Delivered by Heisel, J.,

Contents

Majority

p. 352
Erving Wolfe vs. Baltimore and Philadelphia Steamboat Company, a corporation of the State of Maryland.

Headnote

Venue—Action for Personal Injuries—Materiality—Statute.
Under Rev. Code 1915, § 4178, providing that it shall not be necessary in any declaration to lay the venue in the county in which the action was brought, nor to allege the place in which an act is alleged to have been done, unless from the nature of the case the place may be material or traversable, the venue of an action for personal injury in a court of general jurisdiction is not material or traversable, and a declaration for personal injury committed in another state, not laying the venue in the county, was not demurrable.
(June 7, 1916.)
Judges Rice and Heisel sitting.
Walter J. Willis for plaintiff.
Thomas F. Bayard for defendant.
Superior Court, New Castle County,
May Term, 1916.
Action on the case for personal injuries, No. 63,
March Term, 1916.
Action by Erving Wolfe against the Baltimore & Philadelphia Steamboat Company. Demurrer to declaration overruled.
Mr. Bayard: The first count alleges that the accident occurred “in the Chesapeake Bay,” without stating a fictitious venue in New Castle County, as required by Section 4178, Code 1915. It does not appear whether it was in the jurisdiction of Maryland or Virginia. The second count sets out the place as in the State of Maryland, without setting up a fictitious venue, to wit, New Castle County.
The third count omits venue. The point of the demurrer is that the declaration in no part sets out the jurisdictional venue.
Mr. Willis, in reply, cited the following authorities in opposition to the contention of the defendant: Section 15, Rev. Code 1915, Par. 4178; Chitty’s Plead, 267-269; Hammer v. Pierce, 5 Harr. 304 ; 40 Cyc. 105.

delivering the opinion of the court:

This is an action for personal injuries; the allegations of the narr. being that the tort was committed on the Chesapeake Bay

p. 353
within the State of Maryland, and nowhere lays the venue in this county.

The defendant demurred to the declaration, and alleged as grounds of demurrer the failure to lay the venue in this county.

In actions of this character, in a court of general jurisdiction, the place is not material or traversable (1 Chit, on Pleading, 260, 268, 394; 1 Woolley on Del. Prac., § 349), and therefore within, the provisions of Section 4178 of the Code, which is as follows:

“It shall not be deemed necessary, in any declaration, or other pleading, to lay the venue in the county in which the action is brought, nor to set forth in any maimer the place in which an-act is alleged to have been done, unless when, from the nature of the case, the place may be material, or traversable.”

The demurrer is overruled.

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