Opinion
No. 19766
Decided December 21, 1926.
Insurance — Bodily injury or death — Sections 9510-3 and 9510-4, General Code — Liability limited to persons injured by negligence of insured — Husband cannot sue insurer for loss of wife's society and services — Resulting from bodily injury to wife caused by insured's negligence — Statutory construction — Construction of statute adopted from another state.
1. The benefits of the provisions of Sections 9510-3 and 9510-4, General Code, are limited to persons who suffer bodily injury as the result of the negligence of one carrying insurance covering such loss and damage.
2. A husband cannot maintain an action against an insurance company to recover damages for the loss of the society and services of his wife resulting from her bodily injury caused by the negligence of the assured.
3. Where a statute is adopted from another state, which, previous to such adoption, had been construed by the court of that state, it is presumed to have been adopted with the construction so given it.
ERROR to the Court of Appeals of Mahoning county.
The issue in this case was made by general demurrer to the petition, the averments of which were in substance as follows:
That the defendant Charles E. Nadler, at the time of the happening of the things complained of, was insured by the defendant the New Amsterdam Casualty Company against loss or damage caused in the operation of his automobile; that on or about September 2, 1920, the defendant Charles E. Nadler, with whom plaintiff was riding, negligently ran into the automobile of Sam Schoenstein, by reason of which collision plaintiff's wife, Yetta Nadler, sustained severe personal injuries; that, by reason of the injuries so sustained by his wife, plaintiff was caused to sustain a great loss and damage, and loss of the society of his wife; that on December 4, 1920, he commenced an action in the court of common pleas of Mahoning county against Charles E. Nadler for damages, and secured a verdict in the sum of $2,500 against said defendant, upon which judgment was rendered, no part of which has been paid; and that by reason of the laws of the state, and particularly Section 9510-4, General Code, there is due the plaintiff from the defendant the New Amsterdam Casualty Company said sum, with interest, for which he prays judgment.
The demurrer of the New Amsterdam Casualty Company to this petition was overruled, and, not desiring to plead further, judgment was rendered against the company as prayed, which judgment was affirmed by the Court of Appeals. Thereupon error was prosecuted in this court to procure a reversal of that judgment.
Messrs. Carlyle George, and Messrs. Day Day, for plaintiff in error.
Messrs. Ruffalo, Wall Ambrose, and Messrs. Nicholson Warnock, for defendants in error.
The single question presented by the record in this case is whether a husband who sustained damages by reason of the loss of his wife's society and services, resulting from her bodily injury, caused by the negligence of the holder of an insurance policy protecting him from liability arising from the operation of his automobile, may maintain an action to recover such damages from the insurance company which issued the policy. The answer to this question requires a consideration and interpretation of the provisions of Sections 9510-3 and 9510-4, General Code. These sections are as follows:
"Section 9510-3. In respect to every contract of insurance made between an insurance company and any person, firm or corporation by which such person, firm or corporation is insured against loss or damage on account of the bodily injury or death by accident of any person for which loss or damage such person, firm or corporation is responsible, whenever a loss or damage occurs on account of a casualty covered by such contract of insurance, the liability of the insurance company shall become absolute, and the payment of said loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, or damage or death occasioned by such casualty. No such contract of insurance shall be canceled or annulled by any agreement between the insurance company and the assured, after the said assured has become responsible for such loss or damage or death, and any such cancellation or annulment shall be void.
"Section 9510-4. Upon the recovery of a final judgment against any firm, person or corporation by any person, including administrators and executors, for loss or damage on account of bodily injury or death, if the defendant in such action was insured against loss or damage at the time when the right of action arose, the judgment creditor shall be entitled to have the insurance money provided for in the contract of insurance between the insurance company and the defendant applied to the satisfaction of the judgment, and if the judgment is not satisfied within thirty days after the date when it is rendered, the judgment creditor may proceed in a legal action against the defendant and the insurance company to reach and apply the insurance money to the satisfaction of the judgment."
By virtue of these provisions, action may be maintained against such insurance company by one who has recovered a final judgment for loss or damage on account of bodily injury or death against one carrying insurance covering such loss or damage. But the question here presented is: What is the basis of the claim of Abraham Nadler? His action against the insurance company is based upon a judgment recovered by him against Charles Nadler, not for any bodily injury suffered, but as damages sustained by reason of the loss of his wife's society and services.
A careful reading of the language employed by the Legislature in the provisions above quoted requires the conclusion that the benefits of its provisions are limited to one who suffers bodily injury as the result of the negligence of the assured. A principle of interpretation, which is persuasive, if not controlling, is applicable. Where a statute is adopted from another state, which statute previous to such adoption has been construed by the courts of that state, it is presumed to be adopted with the construction so given it. Gale v. Priddy, 66 Ohio St. 400, 406, 64 N.E. 437; Bd. of Comm'rs. of Mercer County v. Deitsch, 94 Ohio St. 1, 113 N.E. 745; Sutherland on Statutory Construction, Section 404.
The provisions of the statute under consideration were adopted from Massachusetts, where it had been enacted five years prior to its adoption by this state, and two years prior to its enactment here it was construed by the Supreme Court of Massachusetts in the case of Williams v. Nelson, 228 Mass. 191, 117 N.E. 189, Ann. Cas., 1918D, 538. It was there held that " 'bodily injury * * * of any person' cannot reasonably be held to include the kind of loss suffered by the husband," and that the provisions of such statute do not authorize recovery against the insurance company upon a judgment procured by a husband against an assured for damages sustained by reason of the loss of his wife's society and services.
It follows that the demurrer to the petition should have been sustained.
Judgment reversed.
MARSHALL, C.J., JONES, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.