
    Clara Manville vs. Antone Swass
    No. 4445.
    June 2, 1934.
    For plaintiff: Robert M. Franklin.
    For defendant: Clifford A. Kingsley.
   POULIOT, J

Heard on plaintiff’s demurrer to defendant’s special plea.

This action brought to recover damages, under the death statute, following an automobile accident on May 21, 1928.

An action was commenced within the period fixed by the Statute of Limitations. It came to trial, and, at the conclusion of the plaintiff’s case, she was non-suited. ' Within a year from such non-suit, she brought the present action under Sec. 9, Chap. 834 of the General Laws, Revision of 1923.

The contention of the defendant is '■hat Sec. 9 above does not apply to the death statute.

Sec. 9 seems to apply <to any action which has been commenced and was not fully tried.

Pesce vs. Mondare, 30 R. I. 247.

No citation directly in point has been found by counsel. The nearest to the issue here is a case where a party, being misinformed, brought one form of action, and, when unsuccessful, brought action in another form, outside the period of limitation but witbin the year following the termination of the first suit.

We do not have that situation here. The present action is the same as the prior one which was commenced May 29, 1929, and is brought within one year from the non-suit entered.

The Court is of the opinion that Sec. 9 above applies, and, therefore, plaintiff’s demurrer is sustained.  