Jones v. Jones , 133 W. Va. 306 ( 1949 )

This action was brought on the 24th day of August, 1948, for the purpose of recovering damages for personal injuries suffered on the 11th day of October, 1946. After craving oyer of the writ the defendant below plead the one year limitation under Code,55-2-12, to which the plaintiff demurred. The Circuit Court of Ritchie County overruled the plaintiff's demurrer. The plaintiff not wishing to traverse the allegations of the defendant's plea of the statute of limitations nor to further plead, the Circuit Court of Ritchie County held that the plaintiff take nothing and entered judgment accordingly, this writ of error having been granted upon the petition of the plaintiff below, the sole question being whether the one or five year period of limitation under Code, 55-2-12, read together with Code, 55-7-8, is applicable.

As we understand the contentions of the plaintiff in error they are that Syllabus 1 of the case of Hereford v. Meek, 132 W. Va. 373,52 S.E.2d 740, decides that actions such as the case at bar survive the death of either or both parties litigant and that since the action is therefore to be classified as being "survivable" the five year limitation under Code, 55-2-12, is the provision properly applied and that consequently the Circuit Court of Ritchie County erred.

On the other hand the defendant below, defendant in error, takes the position that the syllabus point in question is expressly confined to a situation arising only upon the death of the wrongdoer and that, furthermore, the language of the opinion in conclusion expressly limits the holding in the Meek case to cases where the death of one or the other parties litigant in personal injury actions occurs before the running of the one year limitation and that in this instance, since no question of death of a party litigant is involved, the action does not survive within the contemplation of Code, 55-2-12, and hence the one year period is applicable.

The plaintiff below attempts to counter this position by arguing, in effect, that under Code, 55-2-12, the question to be decided is whether the right of action "survives" or does not. If it does survive the limit is five years: if it does not, the limit is one year. The plaintiff below, plaintiff in error, contends that Code, 55-7-8, has made a right of action for personal injury survive and by doing so has caused the five year limitation under Code, 55-2-12, to apply.

Statutes of limitation as a rule do not turn upon the question of who are or who are not the parties litigant nor their status, but upon the question of the nature of the rights or cause of action asserted; that the status of the parties litigant, such as their being infants, incompetents, etc., determines the running or suspension of a statute of limitations but does not affect the applicable period, that being determined by the nature of the right of action. We are inclined to agree that formerly the question of whether a cause of action survived or did not under Code, 55-2-12, did depend entirely upon the nature of the cause of action: if purely personal it did not survive: if it involved property or a property right, it did. The question then would seem to be to what extent, if at all, did the Legislature by the enactment of Chapter 2 of the Acts of 1945 intend to alter the meaning to be attached to the word "survive" as used by this Court in applying Section 55-2-12, and thereby to extend only by implication the period limiting all personal injury actions from one year to five.

There are certain uniform principles applied to statutes of limitation that should guide their application. Outstanding among these is that the periods vary according to the nature of the right of action, in this jurisdiction, as in most, distinguishing between property rights and purely personal rights such as slander, alienation of affections, personal injury, et cetera. In prescribing the periods according to the nature of the right of action our Legislature, of course, did not deal with the status of parties litigant, but in the general provision embodied in Code, 55-2-12, only the difference in nature of the rights of action or a purely substantive question, as distinguished from a procedural or adjective one, is drawn. As clarifying this distinction see Gerling v. Baltimore Ohio Railroad Company,151 U.S. 673, 38 L. Ed. 311, 318. See also Birmingham v.Chesapeake Ohio Railway Co., 98 Va. 548, 37 S.E. 17. True, in a separate section of the same article it was expressly provided that the limitations should not begin to run as against incompetents, infants, and certain other unfortunates, making them exceptions to the general rule, or tolling the running of the limitations as to them, this being purely an adjective or procedural question. This section did not disturb the imposed limitations themselves. See Code, 55-2-15.

We believe that when the above distinction is borne in mind in reading Chapter 2 of the Acts of 1945 and this Court's opinion in the case of Hereford v. Meek, 132 W. Va. 373,52 S.E.2d 740, it will be made quite clear that both deal only with matters of procedure and were not intended to and do not concern the direct application of the general limitations in any way.

In applying Code, 55-2-12, in order to distinguish actions of such nature "that, in case a party die, it can be brought by or against his representative," this Court often spoke of actions of that nature as being actions which "survive," using that word as describing actions that involved a property right as distinguished from purely personal actions. In enacting Chapter 2 of the Acts of 1945 the Legislature used the word "survive" in relation to parties litigant, i.e. the death of the wrongdoer; not in relation to the nature of the cause of action. In the first syllabus in Hereford v. Meek, 132 W. Va. 373,52 S.E.2d 740, the Court was dealing with the death of the wrongdoer, and it is restricted to that situation. The opinion makes that clear in the following language:

"* * * It should be clearly understood that the decision reached in the two cases here under consideration, as set forth in this opinion, applies only to an action based upon a right of action which accrues by reason of injury done to the person of another, when the injury does not cause the death of the injured person, and when, after the injury is inflicted, the wrongdoer dies, and which right of action, by virtue of the statute, survives the death of the wrongdoer and may be enforced against his personal representative; * * *."

We have said that the statement contained in a syllabus is to be read in the light of the opinion. Koblegard, Trustee v.Hale, 60 W. Va. 37, 41, 53 S.E. 793.

In our opinion, therefore, the use of the word "survive" in the syllabus in the Meek case does not affect the nature of the cause of action under Code, 55-2-12, and consequently does not apply the five year limitation generally to actions for personal injury. That case, correctly viewed, restricts the application of Chapter 2 of the Acts of 1945 to cases where the death of the wrongdoer follows the injury complained of.

The judgment of the Circuit Court of Ritchie County will be affirmed.

Affirmed.