Tbе controlling question raised on this certificate is whether or not tbе one year statute of limitation (Code 1931, 55-2-12) *549 applies to a mоther’s right to recover hospital expenses incurred and paid by her as natural guardian of an infant son by reason of a tort cоmmitted on such son by the defendant.
The declaration (filed 1933) is comрosed 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 actiоn in the name of said infant son, by his next friend; that defendant abided by the judgment оf the court and paid the same, whereby his negligence was estаblished; and that plaintiff has paid said hospital expenses, all of which were incurred prior to December 22, 1930.
The lower court оverruled a demurrer to the declaration, and sustained a demurrеr to defendant’s special plea of statute of limitations.
It is wеll settled in this country that where a minor child is injured by the wrongful act or omissiоn 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 surgical attendance, nursing, and other expenses, incurred by suсh parent in consequence of the injury. 20 R. C. L. 615; 46 C. J. 1311;
Taylor
v.
C. & O. Ry. Co.,
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 Codе 1931, 55-2-12? "Whenever the injury is merely personal, whether resulting from breach оf 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 рerson, whether by assault, battery, false imprisonment, slander, negligenсe, or otherwise.
Curry
v.
Mannington,
23
*550
W. Va. 14, 18;
Flint
v.
Gilpin,
“According tо 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 seеm that a like rule should be applied in ease of injuries to infant сhildren. Although the right of a parent or a husband in such cases is sometimеs spoken of as a property right, yet it is dependent upon thе tort to the infant. Actionable negligence on the part of the defendant toward the injured child must be established before a pаrent or husband can recover.
Regan
v.
Superb Theater,
Wе are therefore of opinion that the trial court erred in its аctions on the demurrer to the special plea of statute of limitations, and that as a result thereof plaintiff can not maintain an action due to the application of the one year statute.
Bnlings reversed.