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

244 S.E.2d 321, 161 W. Va. 588, 1978 W. Va. LEXIS 300
CourtWest Virginia Supreme Court
DecidedApril 7, 1978
DocketNo. 13764
StatusPublished
Cited by45 cases

This text of 244 S.E.2d 321 (Snodgrass v. Sisson's Mobile Home Sales, Inc.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Snodgrass v. Sisson's Mobile Home Sales, Inc., 244 S.E.2d 321, 161 W. Va. 588, 1978 W. Va. LEXIS 300 (W. Va. 1978).

Opinion

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 [589]*589limitations 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 punish[590]*590ment 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,

[591]*591127 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 as-signability 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 [592]*592v. 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 [593]*593to 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.

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Bluebook (online)
244 S.E.2d 321, 161 W. Va. 588, 1978 W. Va. LEXIS 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snodgrass-v-sissons-mobile-home-sales-inc-wva-1978.