Courtney v. Courtney

• Decision Date: 11 June 1993
• Docket Number: No. 21561,21561
• Citation: 190 W.Va. 126,437 S.E.2d 436
• Court: West Virginia Supreme Court
• Parties: . Denzil COURTNEY and Maud Courtney, Defendants Below, Appellees. Supreme Court of Appeals of West Virginia

Page 436

437 S.E.2d 436

190 W.Va. 126

Frances COURTNEY, Individually, and Patsy Joe Compaleo, an Infant, Who Sues By and Through Frances Courtney His Mother, Plaintiffs Below, Appellants, v. Denzil COURTNEY and Maud Courtney, Defendants Below, Appellees.

No. 21561

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1993.

Decided June 11, 1993.

Syllabus by the Court

1. In actions for damages to property and for personal injuries, the appropriate statute of limitations under W.Va.Code, 55-2-12 (1959), is two years. These actions by virtue of W.Va.Code, 55-7-8a(a) (1959), survive the death of the plaintiff and the tortfeasor.

2. Damages for personal injuries arising out of an assault and battery are controlled by the two-year statute of limitations contained in W.Va.Code, 55-2-12(b) (1959).

3. "An instruction, given in a personal injury case for damages for physical pain, mental anguish and impairment of capacity to enjoy life resulting from an assault on the plaintiff, which submits to the jury plaintiff's right of recovery, and in the event of recovery, directs them to assess as damages such as they may believe plaintiff entitled to under all the evidence in the case, ... does not constitute reversible error[.]" Syllabus Point 2, in part, Nees v. Julian Goldman Stores, 109 W.Va. 329, 154 S.E. 769 (1930).

4. In an action for assault and battery, a plaintiff can recover damages for emotional distress. This element of damages is a part of the overall claim for damages in the assault and battery action.

5. A claim for severe emotional distress arising out of a defendant's tortious conduct is a personal injury claim and is governed by a two-year statute of limitations under W.Va.Code, 55-2-12(b) (1959). To the extent that Funeral Services by Gregory v. Bluefield Hospital, 186 W.Va. 424, 413 S.E.2d 79 (1991), expresses a contrary view, it is overruled.

MILLER, Justice:

The plaintiff, Frances Courtney, instituted this civil action in the Circuit Court of Taylor County against her former husband, Denzil Courtney. ¹ The plaintiff's complaint included, among others, three separate causes of action: (1) that the defendant willfully, wantonly, and intentionally assaulted and battered her; (2) that as a result of the defendant willfully, wantonly, and intentionally physically abusing her, the plaintiff suffered from the intentional infliction of emotional distress; ² and (3) that she suffered emotional distress as a result of her "bystander's view" of the defendant "willfully, wantonly, and intentionally battering Patsy Joe Compaleo," her son. Upon a motion for summary judgment filed by the defendant, the trial court held that all three causes of action were time barred by a one-year statute of limitations.

The plaintiff argues that the causes of action in this case are, or should be, governed by a two-year statute of limitations, thereby making her complaint timely filed. The applicable statutory provisions are found in W.Va.Code, 55-2-12 (1959), ³ and W.Va.Code, 55-7-8a(a) (1959). ⁴ Initially, we note that under W.Va.Code, 55-2-12(a) and -12(b), there is a two-year period for bringing suits for damages to property and for personal injuries. Under W.Va.Code, 55-2-12(c), there is a one-year period for other matters where, under common law, if the party were to die, the case could not be brought. These provisions and their historical background were discussed at some length in Snodgrass v. Sisson's Mobile Home Sales, Inc., 161 W.Va. 588, 244 S.E.2d 321 (1978). There, we pointed out that both of these sections were enacted in 1959. They were a part of Chapter 3 of the 1959 Acts of the Legislature and, consequently, according to Snodgrass:

"When W.Va.Code, 55-7-8a, is read in pari materia with W.Va.Code, 55-2-12(a) and (b), relating to the limitation on suit for damage to property and personal injuries, common law survivability of these causes of action is no longer the test. The reason is two-fold. First, these subsections do not contain any requirement as to survivability, but merely express a stated period in which the actions must be brought. Second, the provisions of subsection (a) of W.Va.Code, 55-7-8a, statutorily create survivability by the following language: [citing W.Va.Code, 55-7-8a, see note 4, supra ].

"The effect of this subsection is to create statutory survivability for the causes of action contained therein to parallel the same causes of action set out in [W.Va.] Code, 55-2-12(a) and (b)." 161 W.Va. at 593, 244 S.E.2d at 324-25.

What Snodgrass makes clear is that in actions for damages to property and for personal injuries, the appropriate statute of limitations under W.Va.Code, 55-2-12, is two years. These actions by virtue of W.Va.Code, 55-7-8a(a), survive the death of the plaintiff and the tortfeasor because it states "causes of action for injuries to property, real or personal, or injuries to the person and not resulting in death, or for deceit or fraud, also shall survive[.]" ⁵

I.

We have never directly addressed what statute of limitations applies to a civil action alleging personal injuries resulting from an assault and battery. The defendant argues that the statute of limitations is controlled by State v. Leedy, 141 W.Va. 474, 91 S.E.2d 477 (1956). In that case, a one-year statute of limitations was applied to a suit against a surety whose bond covered assault and battery conduct of a special police officer. The police officer allegedly had beaten and inflicted permanent injuries upon the plaintiff. In finding the action of covenant filed by the victim of the assault time-barred, we implicitly held that the then-applicable W.Va.Code, 55-2-12 (1949), mandated a one-year statute of limitations period. Our decision in Leedy was based upon our earlier case of Town of Clendenin ex rel. Fields v. Ledsome, 129 W.Va. 388, 391, 40 S.E.2d 849, 851 (1946), where, in regard to a suit similar to Leedy, we concluded that the "right of action would not survive either the death of the alleged tortfeasor nor that of the plaintiff."

However, Leedy dealt with the 1949 provisions of W.Va.Code, 55-2-12, ⁶ which were markedly different from the current statute. As we pointed out in Snodgrass, the current statute enacted in 1959, three years after Leedy, extended the statute of limitations to two years for personal injuries and, under W.Va.Code, 55-7-8a(a), gave specific statutory survivability to such actions. Thus, it is clear that damages for personal injuries arising out of an assault and battery are controlled by the two-year statute of limitations contained in W.Va.Code, 55-2-12(b).

In this case, the plaintiff, Mrs. Courtney, seeks to recover not only damages for the physical injuries from the battery, but also for the emotional distress injury. Our assault cases make clear that a victim of an assault and battery is entitled not only to recover for physical injuries, but also for emotional distress which is comparable to mental anguish. We recognized this more than fifty years ago in Nees v. Julian Goldman Stores, 109 W.Va. 329, 154 S.E. 769 (1930), where we stated in Syllabus Point 2, in part:

"An instruction, given in a personal injury case for damages for physical pain, mental anguish and impairment of capacity to enjoy life resulting from an assault on the plaintiff, which submits to the jury plaintiff's right of recovery, and in the event of recovery, directs them to assess as damages such as they may believe plaintiff entitled to under all the evidence in the case, ... does not constitute reversible error[.]"

Cf. Flannery v. United States, 171 W.Va. 27, 297 S.E.2d 433 (1982) (Syllabus Point 3: "A plaintiff in a personal injury action who has been rendered permanently semi-comatose is entitled to recover for the impairment of his capacity to enjoy life as a measure of the permanency of his injuries even though he may not be able to sense his loss of enjoyment of life.").

More recently in Criss v. Criss, 177 W.Va. 749, 356 S.E.2d 620 (1987), an assault case involving a wife who had been beaten by her husband, we said in Syllabus Point 4:

"Because an action for assault and battery allows for recovery of damages due to resulting emotional distress, a claim for the tort of outrageous conduct is duplicitous of a claim for assault and battery, where both claims arise from the same event." ⁷

Thus, it is clear that in an action for assault and battery, Mrs. Courtney can recover damages for emotional distress. This element of damages is a part of her overall claim for damages in the assault and battery action. ⁸ Since this cause of action is for personal injuries and takes the two-year statute of limitations, the trial court erred in utilizing the one-year statute of limitations.

II.

In Harless v. First National Bank of Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982), where we first recognized the tort of outrageous conduct that causes severe emotional distress, we emphasized in note 20 the nature of actionable extreme emotional distress by quoting from comment (j) of Section 46 of the Restatement (Second) of Torts. ⁹ This same Restatement section also contains the right to recover emotional distress arising out of outrageous conduct toward an immediate family member, ¹⁰ which we adopted in Syllabus Point 2 of Courtney I:

"A third person may recover emotional distress damages if the direct victim of the defendant's outrageous conduct is a member of the third person's immediate family, and the third person witnessed the outrageous conduct."

In this type of cause of action, the emotional distress must be significant and severe and must be an integral part of the cause of action. It differs from the type of emotional distress that can be recovered where a physical injury is inflicted on the plaintiff. This latter type of cause of action is ancillary to the substantive tort and is only a damage component. Consequently, the emotional distress need not be as severe to enable some...