Hereford v. Meek
| Decision Date | 01 March 1949 |
| Docket Number | CC742,CC743. |
| Citation | 52 S.E.2d 740,132 W.Va. 373 |
| Parties | HEREFORD v. MEEK (two cases.) |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. Under Section 8, Article 7, Chapter 2, Acts of the Legislature, 1945, Regular Session, a right of action which accrues by reason of an injury done to the person of another and not resulting in death, by the wrongful act, neglect or default of any person, survives the death of the wrongdoer and may be enforced against his personal representative; and the period of limitations within which an action based upon such right of action may be instituted is, by virtue of Code 1931, 55-2-12, five years next after the right to bring such action has accrued.
2. The right of action of a husband to recover damages for liability incurred and money expended by him for necessary medical treatment of his wife for personal injury, not resulting in death, inflicted upon her by a wrongdoer who subsequently dies is derived from and based upon such injury and, by virtue of Section 8, Article 7, Chapter 2, Acts of the Legislature, 1945, Regular Session, survives the death of the wrongdoer and may be enforced against his personal representative; and the period of limitations within which an action based upon such right of action may be instituted is five years next after the right to bring such action has accrued.
3. The case of Barker v. Saunders, 116 W.Va. 548 , is approved and distinguished.
Okey P Keadle, of Huntington, for plaintiffs.
Scherr Meek & Vinson and J. W. Fitchett, all of Huntington, for defendant.
HAYMOND, President.
These two cases were certified to this Court by the Circuit Court of Cabell County on its own motion. By agreement of counsel and leave of this Court they have been argued and submitted for decision together and, as the controlling question is identical in each, they are dealt with in one opinion. He one of them the plaintiff, Sally H. Hereford, seeks to recover from the defendant, John B. Meek, executor of the last will of Robert R. Steele, deceased, damages for personal injury which she alleges was caused by the negligence of Steele, prior to his death, in the operation, by his servant, of an ambulance owned by him and in which she was being transported from her home to a hospital in Huntington, on April 5, 1946. In the other case, the plaintiff, W. D. Hereford, who is the husband of Sally H. Hereford, prosecutes a claim against the same defendant for the liability incurred and the money expended by the plaintiff in the necessary medical treatment of her injury.
Steele died testate on September 22, 1946, and the defendant qualified as his executor on September 26, 1946. Each action was instituted on November 28, 1947, and the declaration in each was filed at December Rules, 1947, of the Circuit Court of Cabell County, at which time the defendant filed a plea of the statute of limitations of one year in each case. At the January, 1948, regular term of the circuit court, the defendant craved oyer of the writ and entered his written demurrer to the declaration in each case. The plaintiff in each case filed a demurrer to the plea of the statute of limitations of the defendant. The circuit court, a special judge sitting in lieu of the regular judge who considered himself disqualified to act because of his relationship to the plaintiffs, in each case overruled the demurrer of the defendant to the declaration, sustained the demurrer of the plaintiff to the plea of the statute of limitations, and certified those rulings to this Court.
The question presented by the certificate in each case is whether Chapter 2, Acts of the Legislature of West Virginia, Regular Session, 1945, amending and reenacting Section 8, Article 7, Chapter 55 of the Code, 1931, which deals with an action for personal injuries and provides that 'any right of action which may hereafter accrue by reason of any injury done to the person of another, and not resulting in death, by the wrongful act, neglect or default of any person, shall survive the death of the wrongdoer and may be enforced against his executor or administrator', extends the period of limitations within which an action for damages may be maintained by a person who sustains personal injury or suffers loss as a result of such injury, from one year to five years after the cause of action accrues when, following such injury, the wrongdoer dies.
Solution of this troublesome question, which is of first impression in this State and which also appears not to have been judicially determined in Virginia, where the substance of the foregoing statute was earlier enacted, requires consideration of the meaning and the effect of its applicable provisions and of the provisions of Section 12, Article 2, Chapter 55 of the Code, 1931, which last mentioned statute deals generally with limitations of personal actions.
In West Virginia since the year of its formation, and in Virginia since 1871, a statute patterned after the legislation passed by the British Parliament August 26, 1846, known as Lord Campbell's Act, Statutes at Large, 1846, 9 and 10, Victoria, Chapter 93, gave a cause of action to the personal representative against any person who wrongfully caused the death of his decedent. As originally enacted in this State, it created a cause of action in favor of the personal representative of the deceased person against the wrongdoer who caused his death but it made no provision for the survival of the action against the personal representative of the wrongdoer in the event of the death of the wrongdoer. This statute, as incorporated in the Code of 1931, appeared as Sections 5 and 6, Article 7, Chapter 55 of that Code. By an amendment, Chapter 20, Acts of the Legislature, 1931, Regular Session, the right of action was preserved in favor of the personal representative of the person whose death resulted from the wrongful act against the personal representative of the deceased wrongdoer. An additional statutory provision was placed in the Code of 1931, as Section 8, Article 7, Chapter 55, which, as originally enacted, was couched in this language: (Emphasis supplied.) The provision just quoted, except its two concluding sentences, followed substantially the language of an earlier statute of Virginia, Section 2906, Code of Virginia, 1887, which existed in that State until it was amended in January 1, 1894, Acts 1893-94, c. 88.
The foregoing statutes of this State dealt only with an injury to a person caused by the wrongful act, neglect or default of another which caused the death of the injured person, whether before or after the institution of an action for damages for an injury which resulted in his death; and Section 8, as originally enacted, quoted above, was held by this Court to apply only to a personal injury which caused the death of the injured person, Byrd v. Byrd, 122 W.Va. 115, 7 S.E.2d 507. Under these statutes, and their substantial counterparts in Virginia, the decisions of this Court and of the Supreme Court of Appeals of that State are to the effect that the cause of action for damages for wrongful death was a new and different cause of action from that which arose from the injury to the injured person and that such new cause of action was created and conferred by the wrongful death statutes. Burgess, Adm'r, v. Gilchrist, 123 W.Va. 727, 17 S.E.2d 804, 138 A.L.R. 676; Swope, Adm'r, v. Keystone Coal and Coke Company, 78 W.Va. 517, 89 S.E. 284, L.R.A.1917A, 1128; Richards, Adm'r, v. Riverside Iron Works, 56 W.Va. 510, 49 S.E. 437; Hoover's Adm'x v. Chesapeake and Ohio Railway Company, 46 W.Va. 268, 33 S.E. 224; Curry v. Town of Mannington, 23 W.Va. 14; Birmingham v. Chesapeake and Ohio Railway Company, 98 Va. 548, 37 S.E. 17; Anderson v. Hygeia Hotel Company, 92 Va. 687, 24 S.E. 269. See also Ruebush v. Funk, 4 Cir., 63 F.2d 170. It is now provided in both States, by statute, and it has been held, that only one recovery for the same injury may be had, either in an action to recover damages for the injury, instituted before the death of the injured party, or in an action under the wrongful death statutes to recover damages for the death of the injured person. Brammer's Adm'r v. Norfolk and Western Railway Company, 107 Va. 206, 57 S.E. 593.
Up to this stage in the chronological order of their enactment in both this State and Virginia the statutes referred to and quoted from dealt only with the subject of wrongful death which resulted from the personal injury sustained by the person by whom or for whose benefit an action was instituted for the recovery of damages. In January, 1894, however, in Virginia, and in 1945 in this State, by amendments, the provisions of the earlier statutes were materially changed and broadened. Instead of dealing only with a personal injury which resulted in death, the amendment of 1894 in...
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