Scott v. Rinehart

• Decision Date: 28 May 1935
• Docket Number: (CC 531)
• Citation: 116 W.Va. 319
• Court: West Virginia Supreme Court
• Parties: Lewis Scott v. Rinehart & Dennis Company, Inc., et al.

116 W.Va. 319

Lewis Scott

v.Rinehart & Dennis Company, Inc., et al.

(CC 531)

Supreme Court of Appeals of West Virginia.

Submitted May 8, 1935.

Decided May 28, 1935.

1. Limitation of Actions

A cause of action under Code 1931, 1)5-2-12 (a statute of limitations) arises when the wrong is inflicted. Mere ignorance of the injured person of the actionable wrong does not suspend the operation of the statute.

2. Statutes

The construction of a statute by a court of last resort becomes a component part of the statute.

Case certified from Circuit Court, Kanawha County.

Action by Lewis Scott against the Rinehart & Dennis Company, Inc., and others. The circuit court overruled plaintiff's demurrer to defendants' plea of limitations, sustained defendants' demurrer to plaintiff's replication, and certified the rulings for review.

Affirmed.

J. F. Bouchelle, for plaintiff.

Brown, Jackson & Knight, W. L. Lee and Dillon, Mahan & White, for defendants.

Hatcher, Judge:

This certification involves the running of the statute of limitations in a common law case where the plaintiff was ignorant of his cause of action.

This action was instituted in October. 1933. The declaration, reduced to most general terms, alleges that plaintiff was employed by the defendant, Rinehart & Dennis Company, in constructing a tunnel through sandrock, from April, 1930, until in September, 1931; that through the negligent operation of his employer, he contracted silicosis while at that work; and that he brought this action immediately after "he learned or had cause to suspect" his diseased condition. The defendants pleaded the statute of limitations. The plaintiff replied specially, alleging that he did not know and could not by the use of reasonable care have ascertained that he had silicosis until three months before bringing his action. The defendants demurred to plaintiff's replication. The circuit court overruled plaintiff's demurrer to the plea of limitations, sustained defendants' demurrer to the replication, and certified here the sufficiency of the several pleadings.

The period within which actions of this character must be brought is "one year next after the right to bring the same shall have accrued, and not after." Code 1931, 55-2-12. Curry v. Mannington, 23 W. Va 14; Kuhn v. Brownfteld, 34 W. Va. 252, 12 S. E. 519. This statute has come to us from the mother state, being in the Revised Code of Virginia of 1819, chapter 128, section 4, and the Virginia Codes of 1849 and 1860, chapter 149, section 11. The language of the statute has varied slightly since 1819, but not its meaning. Both the Virginia and the West Virginia courts of last resort have consistently held that the right of action accrues when the wrong is committed, and in the absence of some act of concealment by the wrongdoer, the mere ignorance of the injured party of the actionable wrong will not suspend the statute. Collis v. Waddy, (1811) 2 Munf. 511; Rice v. White, (1833) 4 Leigh 474; Fant v. Fant, (1866) 17 Gratt. 11; Vanbibber v. Beirne, 6 W. Va. 168; Bank v. Spates, 41 W. Va. 27, 32-3, 23 S. E. 681, 56 Am. St. Rep. 828; Thompson v. Whitaker Co., 41 W. Va. 574, 23 S. E. 795; Boyd v. Beebe, 64 W. Va 216, 220-1, 61 S. E. 304, 17 L. R, A. (N. S.) 660; Barnes v. Lilly, (1931) 110 W. Va. 643, 645, 159 S. E. 873. Accord: Harper v. Harper, 252 Fed. 39, 43-4, applying the West Virginia statute.

This construction of like statutes was so general in the states as early as 1830, that the Supreme Court of the United States then said: "We hardly feel at liberty to treat (it) as an open question." Wilcox v. Flummer, 4 Peters 172, 181, 7 L. Ed. 821. In 1841, after explaining that the statute of limitations must naturally receive a strict construction in a court of law, and that the court could introduce no exception to the statute which the legislature had not authorized, the Supreme Court of Ohio said: "The true inquiry, therefore, at law is, when did the cause of action arise, and not when did knowledge of that fact come to the plaintiff?" The opinion further said that though this construction had been sometimes questioned, the court was "not aware that it had ever been shaken." Fee v. Fee, 10 Ohio 469, 36 Am. Dec. 103. 106-7. This construction was still unshaken in 1904, the Supreme Court of Georgia stating it was "one of general recognition." Davis v. Boyett, 120 Ga. 649, 48 S. E. 185, 66 L. R, A. 258, 102 Am. St. Rep. 118, 120 (citing numerous authorities). This construction is yet unchanged. Wood on Limitations, (4th Ed.), sec. 276c (1); 37 C. J., subject Limitation of Actions, sec. 248; 17 R. C. L., idem sees. 129 and 130; R. C. L., Permanent Supplement, pp. 4345-6; Annotation (1931), 74 A. L. R, 1318, etc.

This construction has been specifically applied in silicosis cases, the Supreme Court of New York holding: "Cause of action for injuries arises when they are first inflicted, and subsequent development of disease resulting therefrom does not give rise to cause of action." Wiersycki v. Pratt Co., (1934) 151 Misc. 207, 271 N. Y. Supp. 36. Accord: MichaleJc v. 11. S. Gypsum Co., (1935) 76 F. (2d) 115.

Counsel for plaintiff recognizes this tremendous weight of authority but demands a change in construction under "the rule of reason, the dictates of humanity, the principles of common justice and the development and progress of the law in step with changing conditions." Counsel for defendants respond:" As long as men have worked...