The opinion
Donley, Judge,
dissenting:
I agree with the majority decision in holding that the defendant is not liable. I dissent from that part of the decision which holds that the applicable statute of limitations is two years.
If A commits a personal injury tort against B in West Virginia and neither party dies, B must sue A within one year from the date when the injury occurred. Jones v. Jones, 133 W. Va. 306 , 58 S. E. 2d 857 . The majority holds that if A commits the same kind of a tort against B, in the State of Ohio, then B may sue A in West Virginia within two years from the date when the injury occurred. This result is independent of the domicile of *38 the parties and would presumably be reached if both A and B were domiciled in West Virginia even though the tort was committed in Ohio. I think that no satisfactory answer can be made to the question why B should be permitted to have twice as long to assert his cause of action if it arose in Ohio rather than in West Virginia. Statutes of limitation express the public policy of the State. It is elementary that if an action is barred by the statute of limitations of the forum, no action can be maintained even though the action is not barred in the state where the cause of action arose. Restatement, Conflict of Laws, Sec. 603, wherein it is said that the “policy of a statute of limitations is to confine actions in the local courts to a period within which it is believed substantial justice between the parties can be administered.” In brief, therefore, I think it is the public policy of this State, as expressed in the statute of limitations, that a cause of action based upon personal injury when the injured party and the tortfeasor are both living, must be asserted by the institution of an action within one year from the occurrence of the wrong. The decision of the majority results in a violation of that policy.
It is sought to justify that departure by resort to Code, 55-2-12, as amended, which provides, in so far as applicable here, that:
“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. . . .”
I do not think that the provisions of clause (a) have any application to a case such as the one now before us, where neither party has died and there is no possibility that an action can be brought by or against a personal *39 representative of either party. No precedent in this jurisdiction so holds. The statute is of the character “sometimes and properly termed a residuary clause or section or catch-all provision.” 58 C.J.S., Limitation of Actions, Sec. 103, p. 1076. The cases relied upon by the majority involve factual situations in which either the injured party or the tortfeasor died. In City of Wheeling v. American Casualty Co., 131 W. Va. 584 , 48 S. E. 2d 404 , it was held that where an action is begun by the injured party who, while the action is pending, dies from a cause other than the injury, it may be revived by his personal representative and prosecuted to judgment against the living tortfeasor. In Hereford v. Meek, 132 W. Va. 373 , 52 S. E. 2d 740 , it was held that where the action is begun by the injured party and while the action is pending the tortfeasor dies, it may be revived and prosecuted to judgment against the personal representative of the tortfeasor. It was further held that the statute of limitations was five years, as the statute then existed. Code, 55-7-8, construed in connection with Code, 55-2-12. The Hereford case was decided on March 1, 1949. The Legislature moved promptly in an effort to overcome the effect of that decision. Chapter 4 of the Acts of the Legislature, 1949, Regular Session, was passed March 12, 1949, and became effective from that date. It was entitled “AN ACT to amend and reenact section eight, article seven, chapter fifty-five of the Code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the termination or abatement of action for injury upon the death of either party, to survival of action for personal injury against wrongdoer and providing the limitation of time within ivhieh such actions shall be brought against the personal representative of such wrongdoer.” (Italics supplied). This Act simply repeated the provisions of the prior Acts of 1945, Regular Session, Chapter 2, and added the clause, “but any such action shall be instituted within one year from the time such cause of action accrued.” I am of the opinion that the words “any such action” refer solely to actions brought against the personal representative of *40 the wrongdoer, as expressed in the Title of the Act, above quoted and, in part, italicized.
It cannot be successfully denied that this statute is a survival statute in so far as the preservation of liability is concerned. It is expressly provided that “the right of action. . . . shall survive the death of the wrongdoer.” Does the right of action survive the death of the injured party ? The statute so provides in the event that the injured party has begun the action during his lifetime. But if the injured party dies before he has begun an action, no provision is expressly made which permits his personal representative to initiate an action against the wrongdoer or his representative. In City of Wheeling v. American Casualty Co., 131 W. Va. 584, 592 , 48 S. E. 2d 404, 409 , Judge Haymond stated by way of dictum that “numerous cases hold, however, that a statute which in terms prevents abatement and provides for the revival of pending actions, does not operate as a revival statute if no action is pending at the time of the death of the injured party. 1 Am. Jur., Abatement and Revival, Section 79. That situation, however, does not arise in this case.” The same authority, in a later paragraph of Section 79, states that “Other courts, however, view a statute which in terms prevents the abatement and provides for the revival of pending actions as causing the cause of action on which such actions are based to survive.” See Annotation, 92 A.L.R. 956 . There is authority for the proposition that any action which survives against the personal representative of one party must be considered as surviving in favor of the personal representative of the other party. Valentine v. Norton, 30 Me. 194 ; cf. Brill v. Jewett, 262 F. 935 , and Hurley v. Sheehan, 288 Mass. 468 , 193 N.E. 46 , 96 A.L.R. 534 . It is, therefore, possible for us to hold, if the point is raised at some future time, that the right of action survives the death of the injured party even though no action was begun during his lifetime.
The majority, however, hold that these considerations are irrelevant for the reason that under the statute of *41 Ohio the cause of action survives “and such actions may be brought notwithstanding the death of the person entitled or liable thereto.” As I have pointed out, Code, 55-7-8, as amended, likewise makes the cause of action survive against the wrongdoer, so that we gain nothing by saying that the laws of the two states in this respect are substantially identical. But the amendment of Code, 55-7-8, by Acts of 1949, Chapter 4, expressly provides that “any such action shall be instituted within one year from the time such cause of action accrued.” Thus, construing this provision in connection with Code, 55-2-12, previously quoted, it is apparent that this particular type of action does not fall within the provisions of subsection (a) thereof (within two years) for the reason that the section is qualified and limited in its application to personal actions “for which no limitation is otherwise prescribed.” In other words, since in West Virginia the survivable cause of action against the deceased wrongdoer must be brought within one year, it is illogical to hold that an identical cause of action arising in Ohio may be brought within two years. As indicated in the beginning of this opinion, the Legislature quickly and emphatically expressed the public policy of this State with reference to a time limitation in a case of this character. In my judgment, we ignore and nullify that policy if we permit, by an unwarranted interpretation of Code, 55-2-12, as amended, an identical cause of action to be maintained because — so far as I understand the majority — and only because, the operative facts giving rise to such liability arose in another state. The only pertinency of that event is to establish that under Ohio law a cause of action survives the death of the tort-feasor. When, therefore, it is apparent that our statute establishes an identical rule of substantive law, the sole remaining question is, what is our public policy in relation to the time when such substantive right must be asserted by an action? When we then observe that by amendment to the statute the time limit fixed for the assertion of the substantive right so created is one year, I am unable to understand how it can be said to be two *42 years by means of construing a “catch-all” statute which itself excepts from its operation cases for which limitations are “otherwise prescribed.”
As previously stated, I think that the provisions of Code, 55-2-12, subsection (a) relating to cases where an action may be brought by or against a personal representative have no proper application to actions for personal injuries when both the injured party and the tort-feasor are living. But even if I am in error in this conclusion, it is my opinion that cases of this character fall within the category of those which are “otherwise prescribed” and thus are excluded from the operation of subsection (a).
From the very beginning it had been the consistent public policy of this State that all actions for personal injuries died with the person of either the injured party or the tortfeasor and that no action could be maintained either by or against the personal representative. Aside from Lord Campbell’s Act and the amendment thereof by Code, 55-7-8, this continued to be the law until the enactment of Chapter 2, Acts of the Legislature of 1945, Regular Session. However, since that Act provided no period of limitation, when this Court was confronted with the problem in Hereford v. Meek, 132 W. Va. 373 , 52 S. E. 2d 740 , it was driven to hold that the then existing five-year limitation contained in Code, 55-2-12, subsection (a) necessarily applied because there was no other provision covering the subject. And, said the Court, “. . . the Legislature indicated its intention that the period of one year provided by Code, 1931, 55-2-12, for a personal action which did not survive the death of the person to whom it had accrued should continue to govern an action for ‘any other tort’ . . .” (Italics supplied.)
The present state of the law is, therefore, (1) if the injured party and the tortfeasor are both living, the statute of limitations is one year; (2) if the tortfeasor dies, the living injured party must sue the personal representative within one year from the time when the *43 cause of action accrued; (3) if the injured party institutes action within one year and thereafter dies, no period of limitation is provided by said statute within which his personal representative is required to revive the action against the tortfeasor or, if the latter is also deceased, against his personal representative; and (4) if the injured party dies without having instituted an action against either the tortfeasor or his personal representative, the cause of action is extinguished, and no question concerning the statute of limitations arises.
The Legislature zealously preserved the liability of the tortfeasor, but inexplicably failed to preserve the right of action to enforce it if the injured party failed to bring an action. But if the injured party did bring an action within one year, and thereafter died such action could be revived. Thus, it is apparent that the provision is a revival statute as to the injured party and a survival statute as to the tortfeasor. The reason for the failure of the Legislature to abolish in toto the common law rule of non-survivability is not apparent. Nevertheless, the statute as now written leaves no doubt that such failure indicates, and at least tacitly expresses, the public policy of the State that personal actions shall not survive the death of the injured party if he dies within one year from the accrual of the cause of action without having instituted an action thereon.
The provisions of Code, 55-2-12, subsection (a) which prescribe a limitation (now two years) for “a matter of such nature that, in case a party die, it can be brought by or against his representative,” were never intended to apply to cases involving personal injuries for the quite obvious reason that this statute was in existence for many years before the passage of Acts of the Legislature of 1945, Chapter 2, which, for the first time, made any change in the common law doctrine. As I have said, the Court felt bound to resort to subsection (a) in the Hereford case, and when, within twelve days after that decision the Legislature amended said Act by limiting the right to bring an action against the wrongdoer or *44 his personal representative to one year after the accrual of the cause of action, the Legislature clearly again enunciated the public policy of the State to restrict to one year the time within which actions for personal injuries shall be brought, whether non-survivable at common law or survivable by virtue of the substantive provisions of the statute. It is significant also that Code, 55-2-12, was amended by Acts of the Legislature of 1949, Regular Session, Chapter 2, by reducing the time limit from five years to two years and that this Act was passed on March 7, 1949, (effective ninety days later) or five days before the passage of Chapter 4 of the same Acts, on March 12, 1949, which amended Code, 55-7-8, by imposing a limitation of one year for the institution of personal injury actions against a wrongdoer or his representative. The passage of the two Acts relating to the same subject matter, i.e., limitation of actions, almost simultaneously, clearly demonstrates that it was not the intention that personal injury actions, whether survivable or not, should be governed as to limitation of time by the provisions of Code, 55-2-12, subsection (a), as amended.
The public policy of the State thus to impose a statute of limitations of one year as applied to actions for personal injuries is, therefore, in my judgment, clearly announced. We flout that policy by permitting the plaintiff in this case to maintain such an action against this corporate defendant upon the theory that since the cause of action arose in Ohio and is survivable under its statutes, it is the type of case which is governed, as to limitation of time, by Code, 55-2-12, as amended.
No principle of law, other than that of comity, requires us to recognize substantive rights arising under the laws of Ohio or to employ the judicial machinery of this State for their enforcement. And, I think, we should not do so in violation of the demonstrated policy of our State. “All statutes of limitation are time clocks; [they are] a legislative declaration of policy . . .”, Tieffenbrun v. Flannery, 198 N.C. 397 , 151 S. E. 857 . See: 3 Beale, *45 The Conflict of Laws, Section 605.1. “No action can be maintained upon a cause' of action created in another state, the enforcement of which is contrary to the strong public policy of the forum.” Restatement, Conflict of Laws, Section 612. This principle was approved in Poling v. Poling, 116 W. Va. 187 , 179 S. E. 604 , wherein the Court said that, “It is likewise a general proposition that courts of other jurisdictions will give effect to rights which are created or recognized by the lex loci, but there is an exception which is as fundamental as the rule itself, and that is, that the lex loci must give way when it comes in conflict with the lav/ or public policy of lex fori.” In accord with this principle is Campen Bros. v. Stewart, 106 W. Va. 247 , 145 S. E. 381 , in which the Court refused to enforce the collection of attorney’s fees in a proceeding upon a promissory note. These principles were not considered in McIntosh v. General Chemical Defense Corporation, 67 F. Supp. 63 , which con-cededly supports the majority view. With all deference to the opinion of the learned Judge Watkins in that cáse, I cannot agree with the analysis there made. I concur in the view that the survivability of a cause of action is determined by the law of the state where it arose, but I do not think that principle solves the problem. It is not enough to say that because a literal interpretation of the language of Code, 55-2-12, as amended, seems to bring within its operation all causes of action which survive, (and not otherwise provided for) there is an end to the inquiry. When we recognize that this statute was enacted many years before the survivability of personal injury claims was created, and for that reason, could not possibly have been intended to apply to them, we should abandon a literal interpretation of the statute and should construe and apply it in the light of its evident purpose and of its historical background and development.
For these reasons, I dissent from • the conclusion reached by the majority of the members of this Court. This case should be an illustration of the confused, uncertain and unsatisfactory state of our laws relating to *46 statutes of limitation sufficient to impel the Legislature to make an early and comprehensive revision of them.
Judge Ducker concurs in this dissent.