
    Case 49—PETITION
    Jan. 6.
    Commonwealth v. Equitable Life Assurance Society of the United States.
    appeal prom mason circuit court.
    1. Penal Statute — Limitation.—An action against a life insurance company to recover a fine for violation of the provisions of section 656 of the Kentucky Statutes relating to a rebate of premium payable on a policy issued by it, is a penal action to recover the penalty for violation of a penal statute, and is harred by limitation in one year from the date the cause of action accrued. The provisions of section 1138, Kentucky Statutes, applies to such actions, and not those of section 2515. "
    E. L. WORTHINGTON por appellant.
    1. The only way to reconcile the provisions of sections 1138 and 2515 of the Kentucky Statutes is to consider the limitation provided hy the first section as applying only to criminal offenses which may he prosecuted by indictment or other criminal process, and the other as applying to civil actions to recover penalties for which only ordinary money judgments can he obtained.
    WM. J. HENDRICK op counsel on same side.
    RICHARDS, BASKIN & RONALD por appellee.
    1. The offense charged in the petition is entirely a penal one, and the action entirely penal or criminal in its nature. In such cases the limitation of one year provided hy section 1138, Ky. Stats., applies. (Boyd v. Com., 91 Ky., 480.)
   JUDGE BURNAM

delivered the opinion op the court:

This action was instituted in the Mason Circuit Court by the Commonwealth of Kentucky against the Equitable Life Assurance Society of the United States, a corporation haying its main office in New York, and which, as appears from the petition herein, has been duly authorized to do business as a life insurance company in this Commonwealth, to recover a fine from said defendant for a violation of the provisions of section 656 of the Kentucky Statutes, relating to a rebate of premium payable on a policy issued by it. The allegation of said petition is that “said company did, on the-day of February, 1894, by its duly authorized agent, J. D. Eummons, contract with one Yagell to insure his life for the sum of $5,000; in consideration of his agreement to pay an annual premium of $146, and to issue him a policy to that effect, and, in order to induce the said Yagell to agree to take out said policy with it, £he said company, by its agent, agreed with said Yagell, prior to issual thereof, that when he paid the first installment premium of $146 it would pay back to him as a rebate the sum of $16; and that the said Yagell under said agreement took out said policy and paid the first installment premium of $146, and that said defendant, pursuant to its agreement made by its agent, gave back to the said Yagell the said sum of $16 as a rebate; and that said rebate was not expressed or proxdded for in the policy contract of insurance.

This petition was filed in the Mason Circuit Court on the 20th day of May, 1895, about fifteen months after the alleged cause of action accrued. A demurrer was filed by defendant to the petition of plaintiff, and same was sustained, and a judgment entered dismissing said petition, and from this order of dismissal this appeal is taken.

The only question presented by the demurrer aforesaid is whether said action, at the date of its institution, was barred by the statute of limitation in such actions made and provided.

It is contended by appellant’s counsel that the limitation provided by section 2515 of the Kentucky Stat utes, which is fixed at five years, applies to actions brought under section 656 of the Kentucky Statutes, and in support of his contention he makes a very ingenious argument. On the other hand it is contended by appellee that the limitation upon actions under this section is fixed by the provisions of section 1138, and expires in one year from the date of their violation.

In our opinion these sections of the Kentucky Statutes are intended to relate to two entirely different classes of actions, and are in no sense repugnant to each other, although they both apply to actions to recover penalties.

Section 2515 is found in chapter 80, the chapter which is entirely devoted to fixing limitations upon all - classes of civil actions, whilst section 1138 is found in chapter 36, which is entirely devoted to the subject of crimes and their punishment.

This is certainly a penal action, brought to recover the penalty for the violation of a penal statute, which is imposed, as a punishment for a public offense; and, in our opinion, the limitation upon same is one year from the date when said cause of action accrued.

Section 2515 was intended to apply to civil actions where damages in the nature of a penalty are annexed.

The distinction between these two sections was pointed out by this court in the case of Boyd v. Commonwealth, 91 Ky., 480.

The judgment of the lower court is affirmed.  