Tolliver v. Shumate

• Court: West Virginia Supreme Court
• Writing for the Court: HAYMOND
• Citation: Tolliver v. Shumate, 150 S.E.2d 579, 151 W.Va. 105 (W. Va. 1966)
• Decision Date: 18 October 1966
• Docket Number: No. 12496,12496
• Parties: James Finley TOLLIVER, Plaintiff, v. Nancy Ellen SHUMATE, Everett Shumate and J. R. Tolliver, Defendants, UnitedStates of America, Intervenor.

Page 579

150 S.E.2d 579

151 W.Va. 105

James Finley TOLLIVER, Plaintiff, v. Nancy Ellen SHUMATE, Everett Shumate and J. R. Tolliver Defendants, UnitedStates of America, Intervenor.

No. 12496.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 13, 1966.

Decided Oct. 18, 1966.

Syllabus by the Court

1. Under 42 U.S.C., Section 2651, the United States, in the exercise of its independent statutory right, as distinguished from and in addition to any right of subrogation, is entitled, as an intervenor, to prosecute and establish its claim against the defendants, for the reasonable value or hospital and medical care and treatment furnished by it to an eligible veteran, in an action instituted by him to recover for personal injuries caused by the negligence of the defendants; the action of the trial court in dismissing the claim of the United States constitutes error which requires reversal of the judgment of dismissal; and upon such reversal the case will be remanded to the trial court with directions to reinstate it upon the docket of that court and to grant the intervenor a hearing to enable it to establish its claim against the defendants by proper proof and to permit the defendants to interpose any and all valid defenses against such claim.

2. To recover in an action based on negligence the plaintiff must prove that the defendant was guilty of primary negligence and that such negligence was the proximate cause of the injury for which the plaintiff seeks a recovery of damages.

John W. Douglas, Asst. Atty. Gen., U.S. Dept. of Justice, Washington, D.C., Milton J. Ferguson, U.S. Atty., Charleston, W.Va., Morton Hollander, Chief, Appellate Section, U.S. Dept. of Justice, Kathryn H. Baldwin, Dept. of Justice, Washington, D.C., for appellant.

Bowers, File, Hodson & Payne, W. H. File, Jr., Edward M. Payne, III, Beckley, for appellees.

HAYMOND, Judge:

This is a civil action instituted in the Circuit Court of Raleigh County on March 12, 1964, in which the plaintiff, James Finley Tolliver, seeks to recover damages in the amount of $20,000.00 from the defendants, Nancy Ellen Shumate, Everett Shumate and J. R. Tolliver, for personal injuries caused by the alleged negligence of the defendants as a result of a collision between a truck, driven by the defendant J. R. Tolliver, in which the plaintiff was a guest passenger, and an automobile owned by the defendant Everett Shumate and driven by his daughter, the defendant Nancy Ellen Shumate, on West Virginia State Route 3, near Stover, in Raleigh County West Virginia, on December 31, 1963. The plaintiff was a veteran and was treated for his injuries at the Veterans Administration Hospital in Beckley during the period January 1, 1964 to May 6, 1964; and by written instrument dated April 15, 1964 the plaintiff assigned to the United States any right to which he was entitled to recover the value of the hospital and medical care and treatment.

On June 12, 1964, the United States was permitted to intervene as a party to the action and filed its complaint to recover $1693.00 from the defendants, which sum is alleged to be the reasonable value of the hospital and medical care and treatment furnished to the plaintiff. The complaint was based on the assignment and on Section 2651, 42 U.S.C., commonly known as the Medical Care Recovery Act, enacted by the Congress in 1962.

To the complaint of the United States the defendant J. R. Tolliver and the defendants Nancy Ellen Shumate and Everett Shumate filed separate answers in which they admit the assignment by the plaintiff but deny any liability to pay for such care and treatment. The answers also charge that the complaint fails to state a cause of action against the defendants, that there is no consideration for the assignment, that the assignment is void, that plaintiff suffered no loss for medical care or expenses and assigned nothing to the United States, that the defendants committed no tort against the United States or the Veterans Administration and that neither has any cause of action against the defendants, and that the federal statute relied on by the United States, 42 U.S.C., Section 2651, is unconstitutional and void. by jury on July 16, 1964, at which time, and by jury on July 16, 1964, at which time and before the trial began, the defendants made a joint motion to dismiss the complaint of the United States. The circuit court sustained the motion and held that the plaintiff had no assignable right against the defendants which could be transferred to the United States or to which it could be subrogated under the federal statute in the absence of any showing of liability of the plaintiff for the hospital care and medical attention which he had received at the Veterans Administration Hospital in Beckley and dismissed the claim of the United States but no order of dismissal was entered by the circuit court until October 13, 1964. The United States excepted to the ruling of the circuit court and after the trial of the case had proceeded to the close of the evidence in behalf of the plaintiff the circuit court, on its own motion, declared a mistrial on July 17, 1964.

Before ruling on the motion of the defendants to dismiss the claim of the United States, the circuit court permitted the plaintiff to amend his complaint to include a claim against the defendants for the medical and hospital care and treatment received by the plaintiff at the Veterans Administration Hospital and after the circuit court had declared a mistrial, the case was again set for trial on October 13, 1964.

By an amended pretrial conference order entered October 9, 1964, certain facts were stipulated by the parties and their respective contentions were set forth in the order. The contention of the United States was that by virtue of an assignment and the independent right of recovery conferred by the provisions of Section 2651, 42 U.S.C., the defendants were liable to it for the reasonable cost of the care and treatment furnished to the plaintiff at the hospital maintained by the Veterans Administration at Beckley.

On October 13, 1964, the circuit court reaffirmed its ruling on the foregoing motion of the defendants and by order of that date, after considering the arguments of counsel, the pleadings, the discovery depositions, the pretrial conference order and the testimony of Dr. Ralsten and Dr. Byrd, Administrator of the Veterans Hospital, in behalf of the claim of the United States, incorporated in the record by agreement of the parties, the circuit court dismissed the complaint of the United States without leave to amend and dismissed its claim with prejudice.

On October 20, 1964, by order of that date, upon a stipulation between the plaintiff and the defendants that all claims in issue between them had been compromised and settled without any admission of...