I concur in the conclusion reached in this case and file this concurring opinion for the purpose of making clear the distinction between this case and the cases of Hereford v.Meek, 132 W. Va. 373, 52 S.E.2d 740, and to indicate that the application of the five year limitation provided by Code, 1931,55-2-12, in effect when this action was instituted, is restricted to the situation expressly dealt with by Code, 1931,55-7-8, as amended by Chapter 2, Acts of the Legislature, 1945, Regular Session. Since the Hereford cases were decided the five year limitation has been reduced, by Chapter 2, Acts of the Legislature, 1949, Regular Session, to a two year limitation, except that in instances in which a cause of action had accrued before the enactment of the 1949 statute the limitation has been fixed at two years from the effective date of the statute or five years from the accrual of the action, whichever shall be *Page 311 less; and by Chapter 4, Acts of the Legislature, 1949, Regular Session, the period within which an action under Code, 1931,55-7-8, as amended, may be instituted, has been fixed at one year from the time the cause of action accrues.
The Hereford cases simply held that under Code, 1931, 55-7-8, as amended by Chapter 2, Acts of the Legislature, 1945, Regular Session, the right of action dealt with by the statute, in favor of a person who has sustained a personal injury not resulting in death and which injury was caused by the wrongful act, neglect or default of another person, survived the death of the wrongdoer and may be enforced against his personal representative and that, in the absence of any express limitation imposed by the statute as it then existed, the time within which an action based upon such right of action may be instituted was the five year period provided by Code, 1931,55-2-12. In those cases the statute which provided that the right of action should survive the death of the wrongdoer was not construed to apply to any action to recover damages for a personal injury between persons who survived or to any other type of personal action which was not clearly within its express provisions. As expressly stated in the last paragraph but one in the opinion in the Hereford cases, no question was there presented with respect to the statute of limitations in an action for personal injury when none of the parties dies within one year after the injury occurred.
In my opinion the Legislature, in amending Code, 1931,55-7-8, by the enactment of Chapter 2, Acts of the Legislature, 1945, Regular Session, and in providing for the survival of a right of action against a wrongdoer who subsequently dies, did not intend to change or affect the period of limitations for actions for personal injuries in general or to cause the then existing five year statute of limitations to apply to such cases. In consequence, the one year statute of limitations applies to and governs this case; and the judgment of the circuit court, which recognized *Page 312 and applied the one year statute of limitations, should be affirmed.
I am authorized to state that Judge Fox joins in this concurring opinion.