Roderick v. Hough

HaYMOND, PRESIDENT; In this civil action instituted in the Circuit Court of Monongalia County, October 27, 1960, the plaintiff, Wanda Roderick, seeks to recover from the defendants, Charles Hough and William Dalton, damages for personal injuries which the complaint alleges were sustained by the plaintiff in a collision between two motor — 743 — vehicles on a public highway in Monongalia County, October 29, 1958, and were caused by the negligence of the defendants. To the complaint William Dalton, the only defendant served with process, filed his answer which set forth these defenses to the claim of the plaintiff: (1) That the complaint fails to state a claim against the defendant upon which relief can be granted; (2) that the injuries sustained by the plaintiff were not caused by any negligence of the defendant, the owner of one of the motor vehicles involved in the collision, or by the negligence of any servant, agent or employee of the defendant; (3) that the injuries of the plaintiff resulted from her own negligence; and (4) that the right of action alleged in the complaint did not accrue within one year before the institution of this action. Pursuant to notice the defendant filed his motion to dismiss on the ground that it appeared from the complaint that the plaintiff’s cause of action arose more than one year before the commencement of this action and is barred by the one year statute of limitations. After the motion to dismiss had been argued by counsel and considered by the circuit court it held that the action was barred by the one year statute of limitations in effect when the cause of action accrued and by order entered February 6, 1961, dismissed the action and awarded costs against the plaintiff. To the judgment of dismissal this Court granted this writ of error upon the application of the plaintiff. The single legal question to be determined upon this writ of error is whether the one year statute of limitations in effect on October 29, 1958, when the cause of action accrued, or the two year statute of limitations which amended the one year statute and became effective June 11, 1959, applies to and governs the present cause of action. Section 12, Article 2, Chapter 55, Code, 1931, as amended by Chapter 2, Acts of the Legislature, 1949, Regular Session, in effect when the cause of action — 744 — of the plaintiff accrued on October 29, 1958, contained these provisions: “Every personal action for which no limitation is otherwise prescribed shall be brought (a) within two years next after the right to bring the same shall have accrued, if it be for a matter of such nature that, in case a party die, it can be brought by or against his representative; and (b) if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued, and not after; and (c) every right of action mentioned above in clause (a) heretofore accrued shall be brought within two years hereafter or within five years from the time such action accrued, whichever shall be less.” Section 12, as amended and reenacted by Section 12, Article 2, Chapter 2, Acts of the Legislature, 1959, Regular Session, contains these provisions: “Every personal action for which no limitation is otherwise prescribed shall be brought: (a) Within two years next after the right to bring the same shall have accrued, if it be for damage to property; (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries; and (c) within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative.” In support of her contention that the statute, as amended by the Act of 1959, applies to and governs the present cause of action and provides a period of two years after its accrual in which to bring an action, the plaintiff contends in substance (1) that the 1959 statute repealed and nullified the prior one year statute which for that reason does not apply to or govern the present cause of action; and (2) that the 1959 statute should be given retroactive effect and should be applied to the cause of action of the plaintiff. — 745 — The 1959 statute did not operate to repeal the statute in effect on October 29, 1958, when the present cause of action accrued but instead amended and reenacted the then existing statute. The 1959 statute reenacted the substance of clauses (a) and (b) of the prior statute and changed only the limitation in clause (b) by enlarging the period from one year to two years. It did not repeal expressly or by implication the prior statute. It is well settled that repeal of a statute by implication is not favored in law. State ex rel. City of Wheeling v. Renick, 145 W. Va. 640, 116 S. E. 2d 763; Harbert v. The County Court of Harrison County, 129 W. Va. 54, 39 S. E. 2d 177. Statutes are not considered to be repealed by implication unless the repugnancy between the new provisions and a former statute be plain and unavoidable, and a construction which repeals former statutes or laws by implication, and divests long approved remedies, is not favored by the courts. Harbert v. The County Court of Harrison County, 129 W. Va. 54, 39 S. E. 2d 177; United States Coal and Coke Company v. Turk, 127 W. Va. 368, 33 S. E. 2d 463; Belknap v. Shock, 125 W. Va. 385, 24 S. E. 2d 457; Forqueran v. Donnally, 7 W. Va. 114. To repeal a statute by implication there must be such positive repugnancy between the provisions of the new and the old that they can not stand together or be consistently reconciled. Harbert v. The County Court of Harrison County, 129 W. Va. 54, 39 S. E. 2d 177; Clemans, Sheriff, v. Board of Education, 68 W. Va. 298, 69 S. E. 808; State v. Enoch, 26 W. Va. 253. The 1959 statute was not intended to be a substitute for the prior statute or as such to revise the entire subject matter of or to supersede a former statute. Consequently the rule recognized in State ex rel. City of Wheeling v. Renick, 145 W. Va. 640, 116 S. E. 2d 763; State v. General Daniel Morgan Post, No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S. E. 2d 353; Taylor v. State Compensation Commissioner, 140 W. Va. 572, 86 S. E. 2d 114; State v. Hinkle, 129 W. Va. 393, 41 S. E. 2d 107, and other cases, has no present application. That rule, which — 746 — does not here apply, is that a subsequent statute, which revises the entire subject matter of a former statute and which is evidently intended as a substitute for such former statute, operates to repeal the former statute even though such subsequent statute does not contain express words to that effect. In State v. Montgomery, 94 W. Va. 153, 117 S. E. 2d 870, this Court said in point 2 of the syllabus that ‘ ‘ Generally, where a statute is amended and reenacted, the amendment should be construed as if it had been included in the original act; but it cannot be retroactive, unless plainly made so by the terms of the amendment.” This Court has said in many cases that a statute is always presumed to operate prospectively unless the intent that it shall operate retroactively is clearly expressed by the terms or is necessarily implied from the language of the statute. State ex rel. Conley v. Pennybacker, 131 W. Va. 442, 48 S. E. 2d 9; Lester v. State Compensation Commissioner, 123 W. Va. 516, 16 S. E. 2d 920; Fairmont Wall Plaster Company v. Nuzum, 85 W. Va. 667, 102 S. E. 494; Morris, Adm’r. v. Westerman, 79 W. Va. 502, 92 S. E. 567, 3 A.L.R. 1237; Harrison v. Harman, 76 W. Va. 412, 85 S. E. 646; Thomas v. Higgs & Calderwood, 68 W. Va. 152, 69 S. E. 654, Ann. Cas. 1912A, 1039; Barker v. Hinton, 62 W. Va. 639, 59 S. E. 614, 13 Ann. Cas. 1150; Burns v. Hays, 44 W. Va. 503, 30 S. E. 101; Walker v. Burgess, 44 W. Va. 399, 30 S. E. 99, 67 Am. St. Rep. 775; Casto v. Greer, 44 W. Va. 332, 30 S. E. 100; Rogers v. Lynch, 44 W. Va. 94, 29 S. E. 507; State v. Mines, 38 W. Va. 125, 18 S. E. 470; Stewart v. Vandervort, 34 W. Va. 524, 12 S. E. 736, 12 L.R.A. 50. The rule just stated applies to statutes of limitations. Harrison v. Harman, 76 W. Va. 412, 85 S. E. 646; Thomas v. Higgs & Calderwood, 68 W. Va. 152, 69 S. E. 654, Ann. Cas. 1912A, 1039; Burns v. Hays, 44 W. Va. 503, 30 S. E. 101; Walker v. Burgess, 44 W. Va. 399, 30 S. E. 99, 67 Am. St. Rep. 775; Casto v. Greer, 44 W. Va. 332, 30 S. E. 100; State v. Mines, 38 W. Va. 125, 18 S. E. 470; Mastin’s Ex’rs v. Hiett, 37 W. Va. 15,16 S. E. 437; Fowler v. Lewis’s Adm’r, 36 W. Va. 112, 14 S. E. 447. — 747 — In the Harrison ease this Court held in point 2 of the syllabus that “Statutes of limitations will not be given a retroactive effect unless by express terms, or by necessary implication, it clearly appears that the legislature intended that they should so operate.” In Thomas v. Higgs & Calderwood, 68 W. Va. 152, 69 S. E. 654, Ann. Cas. 1912A, 1039, this Court said in point 2 of the syllabus that the rule that statutes are prima facie to be construed as prospective and not retrospective in operation “is applicable to statutes remedial in nature, and applies also to statutes of limitation, unless by express command or by necessary and unavoidable implication a different construction is required.” In Walker v. Burgess, 44 W. Va. 399, 30 S. E. 99, 67 Am. St. Rep. 775, this Court held in point 1 of the syllabus that “A statute changing the period of limitation will not be applied to antecedent transactions, unless its letter or necessary intent demand a retroactive construction.” In that case the defendants pleaded set-offs based on a store account against the notes on which the claim of the plaintiff was based. When the set-offs accrued and when the action was instituted a three year statute of limitations was in effect, but when the plea of set-offs was filed the three year statute had been amended and a five year statute of limitations was in effect. The opinion contains these paragraphs: “Thus two questions arise: (1) Is three years the bar, under section 6, Chapter 104, Code 1891, which was in force when the set-offs accrued, and also when the action began, or five years under Chapter 2, Acts 1895, amending said section, which act was in force when the plea of set-offs was filed * * *? “The first question we answer by saying that statutes are to be construed to be prospective in operation, and not to retroact and govern antecedent transactions. I used the word ‘construed,’ meaning that courts do not, by mere construction, give statutes backward effect, but will do so if the letter of the statute or necessary and inevitable intent require it. Stewart v. — 748 — Vanderfort, 34 W. Va. 524, (12 S. E. 736). And though statutes of limitation do not destroy the right, but affect only the remedy, this Court has applied the rule to such statutes. State v. Mines, 38 W. Va., 125, Syl. point 6, (18 S. E. 470); Mastin’s Ex’rs v. Hiett, 37 W. Va., 15, Syl. point 2, (16 S. E. 437); Fowler v. Lewis, 36 W. Va., 113, (14 S. E. 447); Casto v. Greer, 44 W. Va., 332, (30 S. E. 100). Nothing in the new statute calls for retroactive construction; and the period of three years, being the bar at date of the sale of the store goods, applies, not the new law in force at the date of the plea.” The language in the last sentence in the quotation from the opinion in the Walker case is directly applicable to and that decision is controlling in the case at bar. Nothing in the 1959 statute calls for retroactive construction, and the one year statute, being in effect when the plaintiff’s cause of action accrued October 29, 1958, applies instead of the 1959 statute which was in force when this action was instituted October 27, 1960. Statutes of limitations, being remedial, act only on remedies and do not extinguish rights. Cook v. Eastern Gas and Fuel Associates, 129 W. Va. 146, 39 S. E. 2d 321; Walker v. Burgess, 44 W. Va. 399, 30 S. E. 99, 67 Am. St. Rep. 775; Martin v. Mayer, 63 Ga. App. 387, 11 S. E. 2d 218. Of course, the Legislature, if it had so intended, could have given the 1959 statute retroactive effect, but in its enactment the Legislature did not do so, and the failure of the Legislature to declare that the statute should operate retroactively indicates that it did not intend that the statute should have or be given that effect. The principles which apply to and control the decision of the question involved in this action are well stated in these paragraphs in the opinion in Ferguson v. Ferguson, 169 Va. 77, 192 S. E. 774: “There appears to be no good reason for excluding statutes of limitations, or remedial statutes, from the general rule, that retroactive or retrospective legislation is not favored, in the absence of any words ex — 749 — pressing a contrary intention. Undoubtedly, the Legislature may declare a statute dealing with remedial legislation, or one not affecting vested rights, to have a retroactive operation. It is reasonable to conclude that the failure to express an intention to make a statute retroactive evidences a lack of such intention. Otherwise, the hardship and injustice resulting in the application of any other rule is apparent not only in the instant case, but in other conceivable instances. It is not to be presumed that the Legislature intends to work an injustice. “A great majority of opinion, and we think the better opinion, applies the same rule of construction to new or changed provisions of statutes of limitation that it applies to the construction of other statutes. In following this rule, the new enactment is held to apply to all rights or causes of action after its pas-age, leaving all rights or causes of action existing at the time of such passage subject to the operation of prior limitations, unless otherwise provided. Therefore, rights accrued, claims arising, proceedings instituted, orders made under the former law, or judgments rendered before the passage of an amended statute, will not be affected by it, but will be governed by the original statute, unless a contrary intention is expressed in the later statute. Day v. Pickett, 4 Munf. (18 Va.) 104; Duval, Adm’r, v. Malone, et al., 14 Grat. (55 Va.) 24, 28; City of Richmond v. Supervisors of Henrico County, 83 Va. 204, 213, 2 S. E. 26; Limitations of Actions, 37 C. J. 691; Statutes, 59 C. J. 1181(b). “Citing numerous Virginia and West Virginia cases and textbook authorities in support of the above principle, it is said in the syllabus by the court in State v. Mines, 38 W. Va. 125, 18 S. E. 470: “ ‘Statutes of limitations are no exceptions to the rule that statutes are prima fade to be given only prospective operation.’ ” — 750 — A cause of action which accrues when a one year statute of limitations is in force and effect is subject to and is governed by that statute and is not affected or controlled by an amendatory two year statute of limitations which becomes effective before the expiration of one year from the accrual of such cause of action, unless it expressly or by necessary implication appears from the later statute that the Legislature intended such statute to operate retroactively. Under the authorities heretofore cited, quoted from, and dealt with in this opinion, Section 12, Article 2, Chapter 2, Acts of the Legislature, 1959, Regular Session, effective June 11, 1959, which contains no expression of any legislative intent that it should be given retroactive operation applies only to causes of action subsequently accruing and does not apply to or govern causes of action which existed when it became effective, but all such existing causes of action mentioned in Section 12, Article 2, Chapter 55, Code, 1931, before its amendment by the new enactment, are subject to and are governed by Section 12 as it existed prior to its amendment by the 1959 Act; and the cause of action of the plaintiff, which accrued October 29, 1958, is subject to and is governed by the provisions of the statute of limitations in effect at that time. The judgment of the circuit court, which applied to the cause of action of the plaintiff the one year period of limitations prescribed by the statute in effect when the cause of action accrued and dismissed this action on the ground that it was barred by that statute, being free from prejudicial error, is affirmed. Affirmed.