Snodgrass v. Sisson's Mobile Home Sales, Inc.

• Decision Date: 07 April 1978
• Docket Number: No. 13764,13764
• Citation: 244 S.E.2d 321,161 W.Va. 588
• Court: West Virginia Supreme Court
• Parties: Marshall SNODGRASS et al., etc. v. SISSON'S MOBILE HOME SALES, INC., etc., et al.

Page 321

244 S.E.2d 321

161 W.Va. 588

Marshall SNODGRASS et al., etc. v. SISSON'S MOBILE HOME SALES, INC., etc., et al.

No. 13764.

Supreme Court of Appeals of West Virginia.

April 7, 1978.

Rehearing Denied May 31, 1978.

Syllabus by the Court

An action to collect a civil penalty for usury under W.Va.Code, 47-6-6, is governed by the one-year statute of limitations contained in W.Va.Code, 55-2-12(c), but such statute of limitations will not bar an action which has been instituted at any time prior to one year after the date the last payment is made or is due on the usurious contract.

Guy R. Bucci, Charleston, for appellants.

Alexander J. Ross, Charleston, for Sisson's.

Love, Wise, Robinson & Woodroe, Ernest H. Gilbert and S. Clark Woodroe, Charleston, for G. E. Credit.

MILLER, Justice:

This case arises out of a civil action to collect the penalty provided in our usury statute and gives rise to two questions. ¹ First, what is the appropriate statute of limitations for a suit to collect a penalty for usurious interest? Second, when does the statute of limitations begin to run?

Appellants, Marshall and Janie Snodgrass, purchased a mobile home on an installment payment contract dated September 15, 1972. The contract provided for 96 monthly payments commencing October 30, 1972. On May 3, 1974, appellants instituted a suit against the seller of the mobile home, its manufacturer, and General Electric Credit Corporation, which financed the contract.

The trial court granted summary judgment against appellants, holding a one-year statute of limitations applicable and that it began to run on the date of the agreement, September 15, 1972. Suit was barred since it was filed more than one year after the date of agreement. We agree as to the applicable statute of limitations, but hold that the statute does not begin to run on the date the usurious contract is signed.

The trial court correctly determined that W.Va.Code, 47-6-6, imposes a penalty when it authorizes the recovery of four times the amount of interest payable on a usurious contract. In Lynch v. Bank, 22 W.Va. 554 (1883), this Court had before it a suit to collect usurious interest under the National Currency Act, which authorized a recovery of "twice the amount of interest thus paid." The Court, without elaboration, characterized the statutory provision as a penalty.

In Wilson v. Shrader, 73 W.Va. 105, 79 S.E. 1083 (1913), the Court discussed in some detail the concept of a penalty, identifying several salient characteristics. First, a penalty is statutorily created and is imposed as punishment for a specific act made unlawful by the statute. Second, the amount authorized as a penalty ordinarily bears no relationship to the harm done.

Further delineation of the penalty concept was made in Gawthrop v. Fairmont Coal Co., 74 W.Va. 39, 81 S.E. 560 (1914), where the Court discussed the old statutory penalty for mining within five feet of the boundary line of another person:

"Action for the penalty is not meant for the vindication of private right in property. Nor does it preclude separate action for that. The penalty does not accrue to one out of his property, but out of the vindication of the public weal. It is not given as damages in relation to the former, but as punishment in relation to the latter." (74 W.Va. at 41, 81 S.E. at 561)

Our prior cases discussing the nature of a penalty are in accord with the general law. 36 Am.Jur.2d Forfeitures and Penalties § 2; 70 C.J.S. Penalties § 1.

Once it is established that the suit seeks to collect a penalty, the search for the applicable statute of limitations begins. At the time of the institution of this suit, there was no specific statute of limitations in regard to the collection of the penalty under W.Va.Code, 47-6-6, nor for the collection of penalties generally. ²

Gawthrop answered the question of the applicable statute of limitations by determining that an action to collect a penalty was not assignable at common law and therefore did not survive the death of the person claiming the right. The Court concluded that the one-year statute of limitations set out in the predecessor to W.Va.Code, 55-2-12, ³ was applicable. This rule was later followed by the Court in State ex rel. Sabatino v. Richards, 127 W.Va. 703, 708, 34 S.E.2d 271 (1945). As a general rule, an action to collect a statutory penalty is not assignable unless the statute contains language indicating an intention to make the cause of action assignable. 36 Am.Jur.2d Forfeitures and Penalties § 56. Our usury penalty statute does not contain language by which assignability can be inferred.

Both Gawthrop and Sabatino proceeded on the theory that at common law assignability and survivability were equal and convertible concepts so that if the answer to one were found, the other was automatically answered. Under the Gawthrop -Sabatino approach, no inquiry was made to determine if the Legislature had altered the survivability analysis by statute. Indeed, there was little occasion to make such inquiry since the statute of limitations on personal actions, W.Va.Code, 55-2-12, was cast entirely in terms of survivability until 1959.

In 1959, the Legislature made several significant statutory changes to W.Va.Code, 55-2-12, ⁴ and W.Va.Code, 55-7-8, rearranging the latter section and creating a new section 8a. ⁵ The legislative changes appear to result from certain problems which arose in the case of Tice v. E. I. Du Pont De Nemours & Co., 144 W.Va. 24, 106 S.E.2d 107 (1958), and which are more particularly outlined in Judge Donley's dissent, 144 W.Va. at 37, 106 S.E.2d at 116.

One of the questions in Tice was whether the provisions of W.Va.Code, 55-7-8, caused an action for personal injuries to survive and thereby to obtain the two-year statute of limitations under the then existing statute (see Note 3). The majority suggested it did, but Judges Donley and Ducker disagreed, arguing that W.Va.Code, 55-7-8, did not create statutory survivability of a personal action which did not survive at common law.

Following the Tice decision, the Legislature revised the statute of limitations for personal actions found in W.Va.Code, 55-2-12, by setting out three classes of personal actions: (a) damage to property (both real and personal); (b) damages for personal injuries; and (c) all other personal actions which do not survive at common law. At the same time, W.Va.Code, 55-7-8, was amended to separate the portion relating to personal injury actions which, on the death of the injured party, convert to wrongful death actions. The remaining portion of W.Va.Code, 55-7-8, was revised and placed in a new section designated 55-7-8a. ⁶

Under customary rules of statutory construction, the 1959 changes to W.Va.Code, 55-2-12, must be read in pari materia with W.Va.Code, 55-7-8a, since both relate to the same subject matter and were adopted as a part of a common plan. Smith v. State Workmen's Compensation Commissioner, W.Va., 219 S.E.2d 361 (1975); Fruehauf Corp. v. Huntington Moving & Storage Co., W.Va., 217 S.E.2d 907 (1975).

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:

"In addition to the causes of action which survive at common law, 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; and such actions may be brought notwithstanding the death of the person entitled to recover or the death of the person liable."

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).

The language of W.Va.Code, 55-7-8a(a) is clear and specific on the creation of survivability. It begins with the language "In addition to the causes of action which survive at common law," then proceeds to enumerate the categories deemed to survive statutorily, and concludes the clause with the phrase "also shall survive." Finally, in order to avoid the problem noted by Judge Donley in Tice, ⁷ subsection (a) concludes with the clause "such actions may be brought notwithstanding the death of the persons entitled to recover or the death of the person liable."

By isolating causes of action for fraud and deceit and combining them with personal actions which will survive under W.Va.Code, 55-7-8a(a), it is apparent that the Legislature intended to exclude from statutory survivability under subsection (a) other personal tort actions such as defamation, false arrest and imprisonment, and malicious prosecution. These latter personal actions, lacking statutory survivability and possessing no common law survivability, take a one-year statute of limitations under W.Va.Code, 55-2-12(c).

Further, the provisions of W.Va.Code, 55-7-8a(f), specifically limit the survivability of personal tort actions to those set out in subdivision (a) by the words, "Nothing contained in this section shall be construed to extend the time within which an action for any other tort shall be brought." ⁸ (Emphasis supplied) This conclusion is reinforced by the fact that the Legislature still retained in W.Va.Code, 55-2-12(c), the concept that there are actions which do not survive at common law, demonstrating that the statutory survivability created by W.Va.Code, 55-7-8a(a), is limited to the causes of actions designated therein.

The point of this discussion is that, as a result of the Tice case and the...