Beck v. Bethlehem Loading Co.

Decided November 25, 1919

Superior Court of Delaware · decided 1919-11-25

Action by William H. Beck, administrator, against Bethlehem Loading Company to recover damages for the death of plaintiff’s intestate. On demurrer to the fourth and fifth counts of the declaration, on the ground of duplicity; and on demurrer to the special traverse to the first, second, third and sixth counts. Demurrer to the declaration overruled; demurrer to the special traverse sustained.

Decided 1919-11-25

Per Curiam:

¶1[1] The facts grouped together in the two counts above recited seem to come within the principles of pleading recognized in Mullin v. Blumenthal & Co., 1 Pennewill 476, 42 Atl. 175, wherein it was held that mere diversity of facts set up in a count will not render it double, when all the facts together tend to the statement of one point or ground of recovery. It is the opinion of the Court that the demurrer to the said two counts in the declaration should be overruled.

¶2[2] The demurrer to the special traverse is sustained, for the reason that it does not clearly appear why the matter set up in the inducement cannot be shown or proved under a common traverse. The modern practice is to discourage the use of special traverse where the new matter alleged may be shown under the general issue.