Barker v. 540

• Decision Date: 05 November 1935
• Citation: 116 W.Va. 548
• Court: West Virginia Supreme Court
• Parties: Ella Barker v. N. H. Saunders CCC 540

116 W.Va. 548

Ella Barker

v. N. H. SaundersCCC 540;

Supreme Court of Appeals of West Virginia.

Submitted October 23, 1935.

Decided November 5, 1935.

1. Damages

Where a minor child is injured by the wrongful act or omission of another, the natural guardian may recover from such other the necessary hospital expenses incurred in consequence of such injury.

2. Limitation of Actions

An action by a natural guardian against a third person for recovery of hospital expenses made necessary because of personal injuries negligently inflicted upon an infant child by such person must be brought within one year next after the date of the injury.

Certified from Circuit Court, Kanawha County.

Action by Ella Barker against N. H. Saunders. The trial court overruled a demurrer to the declaration and sustained a demurrer to defendant's special plea of statute of limitations and certified the rulings for review.

Ridings reversed.

D. J. Savage and J. Blackburn Watts, for plaintiff.

O'Connor & Thompson, for defendant.

Woods, Judge:

The controlling question raised on this certificate is whether or not the one year statute of limitation (Code 1931, 55-2-12) applies to a mother's right to recover hospital expenses incurred and paid by her as natural guardian of an infant sort by reason of a tort committed on such son by the defendant,

The declaration (filed 1933) is composed of one special count and the common counts in assumpsit. The special count avers, among other things, that the defendant, in August, 1930. did negligently, etc., injure plaintiff's infant son; that as a result thereof it became necessary for plaintiff, as natural guardian of her child, to incur hospital expenses to the extent of $340; that, in June, 1931, a recovery was had against the defendant herein in an action in the name of said infant son, by his next friend; that defendant abided by the judgment of the court and paid the same, whereb3 his negligence was established; and that plaintiff has paid said hospital expenses, all of which were incurred prior to December 22, 1930.

The lower court overruled a. demurrer to the declaration, and sustained a demurrer to defendant's special plea of statute of limitations.

It is well settled in this country that where a minor child is injured by the wrongful act or omission of another, the father, or mother, if she be the natural guardian, may recover for the loss of such child's services and for medical or surgica 1 attendance, nursing, and other expenses, incurred by such parent in consequence of the injury. 20 R. C. L. 615; 46 C. J. 1311; Taylor v. C. & 0. By.. Co., 41 W. Va. 704, 24 S. E. 631; Comer v. Bitter Lumber Co., 59 W. Va. 688, 53 S. E. 906; Siviger v. Runnion, 90 W. Va. 322, 325, 111 S. E. 318; McCallam, Inf. v. Hope Natural Gas Co., 93 W. Va. 426., 117 S. E. 148; Cook v. Railway Co., 97 W. Va. 420, 125 S. E. 106.

Now as to the question of limitation. Is the right of action, whether ex contractu or ex delicto in form, limited to one year by Code 1931, 55-2-12? '' Whenever the injury is merely personal, whether resulting from breach of contract or from tort, the maxim, 'Actio personalis moritur cum persona, ' prevails." Grubb's Adm'r. v. Suit, 32 Grat. (Va.) 203. Thus no action can be supported either by or against a personal representative after expiration of one year, for injuries to the person, whether by assault, battery, false imprisonment, slander, negligence, or otherwise. Curry v. Mannington, 23 W. Va. 14, 18; Flint v. Gilpin, 29 W. Va. 740, 3 S. E. 33; Kuhn v. Brownfield, 34 W. Va. 252. 12 S. E. 519; Vencill v. Flynn Lumber Co., 94 W. Va. 396, 119 S. E. 164; Birmingham v. C. & 0., 98 Va. 548, 37 S. E. 17. But is the one year provision restricted solely to actions for injuries to the person of the infant?

"According to the great weight of authority an action by a husband for a hurt to his wife is within a statute limiting an action for a 'personal injury'." 37 C. J. 775-6. And, by analogy, it would seem that a like rule should be applied in ease of injuries to infant children....