Floyd v. Miller , 190 Va. 303 ( 1950 )

Miller, J.,

delivered the opinion of the court.

Emma Catherine Floyd, wife of Odie L. Floyd, was; seriously and permanently injured-when struck by an automobile driven by P. M. Wills.

An action at law for personal injuries and expenses incurred incident thereto was instituted by her against the alleged tort feasor. As an item of damage, she expressly alleged in her declaration that she had “been compelled to expend large sums of money in an effort to be cured of her injuries caused by the Defendant, to-wit: the sum of $1,300.-00.” A verdict and judgment for $8,500 were recovered.

The mental condition of Emma Catherine Floyd was such as to render it necessary that a'committee be appointed for her, which was done. After deduction of counsel fees incurred in the prosecution of her action, $6,000 came into the hands of the committee as funds belonging to the incompetent.

A total bill of $1,302.80, instead of $1,300.00, as stated in the declaration, was actually incurred as expenses for treatment of her injuries. It consists of two items—one of $1,102.80, due for hospitalization and nursing incident thereto, and one of $200 owing to Dr. Barksdale for professional services. Both debts had been personally contracted and incurred by Odie L. Floyd, and the larger bill owing to the hospital was actually paid by him. When the committee of Emma Catherine Floyd undertook to settle his account, these items of $1,102.80 and $200 were presented by Odie L. Floyd for allowance and payment to him out of the $6,000' fund.

The assistant commissioner of accounts, who acted in this matter, disallowed these items and exceptions were taken to his decision and report. . .

By decree of the Circuit Court of Amherst county entered November 20, 1948, the exceptions were overruled and the commissioner’s report disallowing these claims against the incompetent’s fund in the hands of her committee was confirmed.

The sole question presented is whether Odie L. Floyd, husband of Emma Catherine Floyd, may recover out of this fund of $6,000 held by her committee the $1,302.80, which represents expenses contracted and incurred by him for hospital and medical attention to his wife.

Hospital and medical services for one’s wife were necessaries at common law for which a husband was liable and that such is still true is not open to question. Hall v. Stuart, 135 Va. 384, 116 S. E. 469, 31 A. L. R. 1489. Such" debts are his. In the absence of an agreement or contract by her to pay for necessaries, she is not liable therefor. Lacking an agreement on her part to pay, these bills were his debts and obligations alone. It is therefore unquestionably true that when contracted they were his, both by force of law and by express agreement, and for them he alone was liable.

Since enactment of what is commonly called the Married Woman’s Act by the General Assembly in 1877, Acts 1876-77, ch. 329, p. 33, which later appeared in the Code of 1887, as ch. 103, and with amendments to date, now appears in the Code of Virginia, 1942 (Michie), as sections 5134, et seq., it has been provided that a married woman’s property shall not be liable for the debts and obligations of her husband. The present provision in that respect contained in section 5134 is: * * nor shall the property of the wife be subject to the debts or liabilities of the husband. * * *”■

A husband, being liable for .the support of his wife and obligated to furnish her with necessaries, but entitled to her domestic services and consortium, was at common law entitled to recover from one who wrongfully injured her, damages for loss of such services and consortium, and also any pecuniary expenses incurred by him as a result of such injury. Richmond Ry., etc., Co. v. Bowles, 92 Va. 738, 24 S. E. 388; Atlantic, etc., Ry. Co. v. Ironmonger, 95 Va. 625, 29 S. E. 319, and Norfolk Ry., etc., Co. v. Williar, 104 Va. 679, 52 S. E. 380. These were elements of damage sustained by him and for which he might maintain an action against the wrongdoer. However, in the Revision of the Code of 1919, the Married Woman’s Act, as it existed at that date (the last change and amendment prior thereto having been by Acts of 1899-1900, ch. 1139, p. 1240), was amended by addition of the following language which appears as next to the last sentence of section 5134 of the Code of 1919:

“In an action by a married woman to recover for personal injury inflicted on her, she may recover the entire damage-sustained, notwithstanding the husband may be entitled tO' the benefit of her services about domestic affairs; and no action for such services shall be maintained by the husband.”

The right of the husband which had theretofore existed, to recover for loss of domestic services of his wife from one who had tortiously injured her, was thereby expressly taken from him and given to the wife. Daniels v. Commonwealth, 172 Va. 583, at p. 593, 1 S. E. (2d) 333. See also Revisor’s Note to sec. 5134, Code of 1919, and Judge Burks’ address before the Virginia Bar Association on May 16, 1919, 5 Va. Law Reg., N. S., pp. 108, 109. In that address Judge Burks, who was one of the Code Revisors, said, “* * * but as it is very difficult to sever the damages-in such cases and tell what part should be recovered by the wife and what part by the husband, and as it is the wife-who suffers both the physical and mental injury, it was deemed best to give her the entire damages and.take away the present right of the husband to bring a separate action for the loss of such services.”

Though Judge Burks said that the amendment gave to the wife “the entire damages” and took from the husband the right to bring an action for the loss of her services, it is obvious that the amendment did not deprive the husband of the right to recover for medical expenses made necessary by the injury and paid by him. Nor was its language broad enough to take from him and vest in the wife Ins right to recover for loss of her consortium as distinguished from the loss of her domestic services. It thus appears that in the Revision of the Code in 1919, only one of the elements of damage, i. <?., loss of domestic services which he had theretofore been entitled to recover from one who had wrongfully injured his wife was taken from him and granted to the injured wife.

The amendment to section 5134, which was made in 1932, Acts of General Assembly 1932, ch. 25, p. 21, broadened and enlarged the scope of the previous amendment that had been made by the Code Revisors. That sentence and provision that had been added to this section by the Revisors was changed, broadened and supplemented so that it now reads:

“In an action by a married woman to recover for a personal injury inflicted on her, she may recover the entire damage sustained, including the personal injury expenses arising out of the injury (whether chargeable to her or her husband) notwithstanding the husband may be entitled to the benefit of her services about domestic affairs and consortium; and no action for such injury, expenses, or loss of service or consortium, shall be maintained by the husband.”

In clear, positive and inclusive language, it enumerates and expressly gives to the wife the right to recover every item of damage incident to her injury. By language equally clear, explicit and inclusive, it expressly provides that no action for any element of damage incident to such personal injury of the wife, can “be maintained by the husband.”

The amendment of 1932 is wholly devoid of implication or suggestion that any part of the damages recoverable by the wife is to be held by her for her husband’s benefit, nor is any substantive right to maintain an action against his wife therefor created therein for the husband through implication or otherwise. Undoubtedly his right to maintain an action against the tort feasor for any element of damage is taken from him and granted to the injured wife as was the right to recover for domestic services of his wife taken from him and vested in her by the amendment in that respect made by the Code Revisors in the Code of 1919. The Revisor’s Notes and Judge Burks’ address, supra, definitely disclose that the Code Revisors purposely intended to deprive the husband of that element of damage, i. e., loss of domestic services, and vest it in the injured wife. The language of the amendment made by the Acts of 1932, ch. 25, p. 21, and now a part of sec. 5134, is equally as clear and even more positive in its terms that its purpose and intent are to deprive the husband of the right to recover the other two elements of damage incident to her injury, i. e., loss of consortium and all expenses chargeable to him which he had theretofore enjoyed, and vest these remaining two elements of damage in the injured wife.

What the husband here seeks to recover from his dependent and incompetent wife is a refund of that character of debt which from time immemorial and by force of law was owing by him as part and parcel of her support, and which in this instance, in addition thereto, he, expressly obligated himself to pay. The clear and certain language of the statute leaves nothing for interpretation. To conclude that she holds this $1,302.80, in trust for him, or that he is entitled to recover that sum from her of out of her estate, is to impose upon the wife the obligation of paying her husband’s common-law obligations and relieve him of his personal indebtedness. It would amount to judicial legislation and not interpretation.

The decree appealed from is affirmed.

Affirmed.