¶1dissenting:
¶2I respectfully dissent from the majority opinion on two grounds: first, this is obviously a tort action and not a contract action; and, second, the plaintiffs did not plead or raise a contract cause of action below and, therefore, the issue is foreclosed in this Court.
¶3The terms used throughout the complaint denote tort and not contract violations. The complaint alleges that Buffalo “knew or should have known” that the wage assignments were unlawful and “wrongfully withheld” *548amounts owing to plaintiffs. The complaint is totally devoid of any language sounding in contract. Nowhere is the term “contract” used. Nowhere is there a reference to any “promise,” “agreement,” or “understanding.” The closest the complaint comes to an allegation of a contract violation is the statement in paragraph eight that plaintiffs were “employed” by Buffalo. In the proceedings below no contract was alleged and no contract was proved. There is simply nothing in the record about a contract.
¶4Even where a contract is alleged and proved, the contract statute of limitations is not applicable unless breach of contract is the real gravamen of a plaintiff’s claim. In this case that is obviously not the situation. Suppose, for example, that A contracts with B to drive him to a given destination and B driving at an excessive rate of speed in violation of a statute, collides with another vehicle causing A to sustain serious personal injuries. In an action by A to recover damages for those injuries, can it be seriously argued that the contract statute and not the personal injury statute controls as to the period of limitations? We spoke to that exact problem in Homes v. Monongahela Power Co., 136 W. Va. 877 at 884, 69 S.E.2d 131 at 136 (1952) where we said:
“Where the transaction complained of had its origin in a contract which places the parties in such a relation that in attempting to perform the promised service the tort was committed, the breach of contract is not the gravamen of the action. The contract in such case is mere inducement, creating the state of things which furnishes the occasion of the tort, and in all such cases the remedy is an action ex delicto, and not an action ex contractu.”
¶5In the instant case, it is clear that the gravamen of plaintiff’s claim is the tortious withholding of property and not breach of contract.
¶6I should raise one further issue which sheds some light on why the case was pled in tort. If this cause of action is predicated on contract, then are not the plain*549tiffs’ damages limited to a contract measure? What is their damage? Did they owe the Lorado Super Market? If they did, then notwithstanding a tortious withholding of their wages, they have not, in contemplation of law, been damaged in contract as they were obliged to pay Lorado anyway. Surely they do not allege that they intended to defraud Lorado and are, therefore, damaged to the extent of the withheld wages. Unless Lorado’s claims against them were fraudulent and the plaintiffs did not in fact buy the merchandise, then their damages are zero.
¶7 When an action sounds in contract, the complainant can recover only those damages which could reasonably and fairly be considered as arising from the breach of contract itself, Kentucky Fried Chicken of Morgantown, Inc. v. Sellaro, _ W. Va. _, 214 S.E.2d 823 (1975); or in other words, only the actual damages suffered flowing from the breach, Hurxthal v. St. Lawrence Boom & Lumber Co., 53 W. Va. 87, 44 S.E. 520 (1903). The only reasonably foreseeable loss of plaintiffs in the present case is the amount of wages actually withheld, and if Lorado Super Market proves that the money withheld was due it to satisfy plaintiffs’ debts, then plaintiffs have suffered no actual loss. Plaintiffs would be hard pressed to show that they were, in actuality, in any worse position after the breach than they were before the breach. On the other hand, if an action sounds in intentional tort, the complainant is entitled to have the jury consider not only the actual loss suffered but also mental anguish, insult, indignity, and humiliation, Sprouse v. Clay Communications, Inc., _ W. Va. _, 211 S.E.2d 674 (1975). Therefore, if this is a case sounding in tort, complete erasure of plaintiffs’ recovery by the debt owed Lorado would be much less likely.