Opinion
No. 637, Civil Action, 1954.
February 18, 1955.
LAYTON, J., sitting.
J. Paul Green for Plaintiffs.
William Prickett for Defendant.
Motion for summary judgment by defendant as against Higley. Granted.
On January 23, 1953, the plaintiff, Wealth was crossing Front Street at West in Wilmington, Delaware; the plaintiff, a pedestrian, and defendant's automobile collided, Wealth was thrown to the ground and injured.
Wealth had been in the Army for one month in 1917 and five months in 1918. After the accident, Wealth was hospitalized by the Veterans' Administration under the authority of a statute which provides in substance that an indigent veteran may be treated for non-service connected injuries within the existing facilities of the Veterans' Administration. Wealth seeks to recover for personal injuries. Paragraph 5 of the complaint is as follows:
"(5) Plaintiff, Jacob Wealth, assigned his claim against the defendant for reimbursement for hospital services to the Administrator of Veterans' Affairs who is authorized by reason of such assignment and by reason of a regulation of the Veterans' Administration promulgated November 30, 1951, ( 16 F.R. 12093, 38 C.F.R. Sec. 17.48(d) (1951 Cum. Pocket Supp.), to receive and collect such moneys and to bring this suit. H.V. Higley, said Administrator of Veterans' Affairs, joins herewith as plaintiff by reason of such assignment and claims the sums set forth in Exhibit B."
The regulation 16 F.R. 12093, 38 C.F.R. Sec. 17.48(d) (1951 Cum. Pocket Supp.) promulgated November 30, 1951 is as follows:
"(d) Persons hospitalized pursuant to Sec. 17.47(c) (1) or (d) (1) to (4), inclusive, who it is believed may be entitled to hospital care or medical or surgical treatment or to reimbursement for all or part of the cost thereof, by reason of statutory, contractual, or other relationships with third parties, including those liable for damages by reason of negligence or other legal wrong, will not be furnished hospital treatment without charge therefor to the extent of the amount for which third parties are or will become liable, and such patients will be requested to execute appropriate assignment or other instrument which will entitle the Administrator of Veterans Affairs — on behalf of the United States — to receive and to collect, directly or as assignee, from the third party or parties, to the extent of the amounts for which such third party is liable, the cost of such care and treatment as determined under the applicable rules and regulations, including medical fee schedules, of the Veterans Administration. The words "by reason of statutory or contractual relationship" as used in this paragraph include, but are not limited to (1) membership in a union, fraternal or other organization, (2) rights under a group hospitalization plan, or under any insurance contract or plan which provides for payment or reimbursement for the cost of medical or hospital care, and conditions the obligation of the insurer to pay upon payment or incurrence of liability by the person covered, (3) "workmen's compensation" or "employers' liability" statutes, State or Federal, (4) right to "maintenance and cure" in admiralty. Notice of the assignment will be mailed promptly to the party or parties believed to be liable. When the amount of charges is ascertained, bill therefor will be mailed such party or parties. If payment is not received in due course, the matter will be referred to the proper chief attorney."
The above quoted regulation was promulgated upon the supposed authority of Ch. 12A, Regulation 6(A), Part V, 38 U.S.C.A. following section 745, which reads, "The Administrator of Veterans' Affairs is hereby authorized to provide such rules and procedure governing domiciliary or hospital care as he may deem proper and necessary."
The following grounds are urged in support of the motions for summary judgment:
a. The alleged assignment was ineffective under the law of Delaware to transfer to the Administrator the cause of action asserted by Wealth.
b. The alleged assignment was ineffective under the law of Delaware to transfer to the Administrator part of the indivisible cause of action asserted by Wealth.
c. The regulation requiring the said assignment was not made pursuant to the statutory authority granted by Congress to the Administrator of Veterans' Affairs.
d. The regulation under which said assignment was made was an invalid delegation of legislative power by Congress to the Administrator of Veterans' Affairs.
e. The regulation is not within the powers delegated to the United States or prohibited to the States by the Constitution of the United States but was reserved to the States by the Tenth Amendment.
I confine myself to a consideration of defendant's second ground for summary judgment, namely, may a personal injury claim be split by partial assignment? The rule, with but a few exceptions in cases with facts not here present, is that a tort action may not be split. As said in 1 C.J.S., Actions, § 104, p. 1329:
"The rule against splitting causes of action applies to causes of action arising ex delicto, the rule being that a single wrong gives rise to but one cause of action, for which only one action may be maintained, however numerous the elements or items of damage resulting * * *."
See also Am. Jur., Actions, Vol. 1, Sec. 111. Packham v. German F. Ins. Co., 9 Md. 515, 46 A. 1066, 50 L.R.A. 828; Baltimore Steamship Co. v. Phillips, 274 U.S. 316, 47 S. Ct. 600, 71 L. Ed. 1069 ; Smith v. Red Top Cab Corp., 111 N.J.L. 439 , 168 A. 796; Simodejka v. Williams, 360 Pa. 332, 62 A.2d 17; Moultroup v. Gorham, 113 Vt. 317, 34 A.2d 96; and Ierardi v. Farmers Trust Co. of Newark, 4 W.W. Harr. 246, 151 A. 822.
Plaintiff suggests that while the rule is correct insofar as it goes, there is no reason to apply it here for both assignees have joined in this jurisdiction thereby merging the claims into one. He cites no substantial authority for such a proposition and, moreover, if his reasoning were adopted, it would not be long before the rule was extended to its logical conclusion for one assignee of part of a tort claim could urge with a great deal of force that since the other assignee was now in Honolulu with no present intention of returning, it would be most inequitable to force him to go to Hawaii in order to prosecute this action.
Most of the authorities cited by plaintiff deal with causes arising ex contractu.
Motion for summary judgment granted as against the defendant, Higley.