Holmes v. RussHolmes v. Russ
This case involves the availability of the statute of limitations as a defense to an interspousal suit for personal injuries.
Prior to Immer v. Risko, supra, which abolished the interspousal immunity doctrine as it applied to automobile negligence actions, a wifе could not sue her husband in tort for his wrongful acts toward her and a joint tortfeasor was precluded from seeking contribution from the erring spouse. Kennedy v. Camp, 14 N.J. 390 (1954). The recent opinion by Judge Waugh in Darrow v. Hanover Township and the County of Morris, 112 N.J. Super. 396 (Law Div. 1970), holding that Immer v. Risko, supra, should be aрplied retrospectively, eradicates the interspousal incapacity to sue only as it applies to actions accrued after July 10, 1968. A tortfeasor acting prior to July 10, 1968 would still possess the defense of the two-year statute of limitations.
Every action at law for an injury to the person causеd by the wrongful act, neglect or default of any person within this state
shall be commenced within 2 years next after the cause of any such action shall havе accrued.
A statute of limitation is one of repose. Miller v. Board of Chosen Freeholders, Hudson County, 10 N.J. 398, 403 (1952). It has always been held that when a right of action has become barred under existing laws, the right to rely upon the statutory defense is a vested right. Thorpe v. Corwin, 20 N.J.L. 311, 316 (Sup. Ct. 1844); Ryder v. Wilson‘s Ex‘rs, 41 N.J.L. 9 (Sup. Ct. 1879); Moore v. State, 43 N.J.L. 203 (E. & A. 1881); State by Parsons v. Standard Oil Co., 5 N.J. 281 (1950), affirmed 341 U.S. 428, 71 S.Ct. 822, 95 L.Ed. 1078 (1951); Miller v. Board of Chosen Freeholders, Hudson County, supra; Burns v. Bethlehem Steel Co., 20 N.J. 37 (1955); Rex. v. Hunter, 26 N.J. 489 (1958).
Onсe the right to rely upon the statutory defense becomes vested it cannot be rescinded or disturbed by subsequent legislation. Ryder v. Wilson‘s Ex‘rs, supra, 41 N.J.L. at p. 11; Moore v. State, supra, 43 N.J.L. at p. 206-208; State v. Standard Oil Co., supra, 5 N.J. at p. 293-294; Burns v. Bethlehem Steel Co., supra, 20 N.J. at p. 42. If the vested right may not be rescinded, аbrogated or impaired by subsequent legislation it may not be done by judicial decision. Markey v. Robert Hall Clothes of Paterson, 27 N.J. Super. 417, 421 (Cty. Ct. 1953).
Plaintiff argues that Immer v. Risko, supra, created a cause of action and therefore the statutе of limitations commenced to run from July 10, 1970, the date of that decision. This argument is specious. Immer v. Risko, supra, made no attempt to deal with, let alone destroy, the defеnse of the statute of limitations. It did not revive any stale causes of action. It merely struck down a previously admitted defense of interspousal immunity. The cаuse of action was always there from its date of accrual, which of course, was December 22, 1967, the date of the collision.
Plaintiff does not argue that her husband was made a defendant to her action before the expiration of the two-year
In answer and in support of his motion, defendant Holmes argues that the County district court suit was a subrogation action brought by his collision insurance carrier; that he was merely a nominal party to that action and at no time controlled the litigаtion therein; that the first true notice of the personal injury claim against him was that of September 23, 1970; and that the fact that he was a nominal party to the consolidated action should not bar his right to dismissal in the prime action, citing Reardon v. Allen, 88 N.J. Super. 560 (Law Div. 1965), and the cases therein cited.
The court agrees. If the property damage subrogation action cannot be used to defeat a plaintiff‘s more serious claim for personal injuries, then the mere institution of such suit should not be used to defeat the subrogee‘s right to assert a vested defense to a serious claim for personal injuries.
The question remaining is whether the order for consolidation of January 17, 1969, wherein the сases of plaintiff and her husband against Russ were joined for trial, afforded defendant Holmes sufficient notice of plaintiff‘s claim against him so as to avoid thе statutory bar.
A review of the history, operation and instruction of
In Lawlor, Greco and DeSisto, supra, the third-party defendants, whom the plaintiffs were seeking to make direct defendants, had been served with the third-party complaint and were at least third-party defendants within the two-year statutory period. They had actual, formal notice within that pеriod of the nature and existence of the litigation and that they were parties defendant thereto. A timely original pleading, i.e., the third-party complaint, hаd been filed to which the amended complaint, though filed beyond the statutory period, could relate back. No third-party complaint ever issued against Robert Holmes in the case before this court. And while it is not meant to be asserted that Holmes was unaware of the nature and existence of his wife‘s suit agаinst Russ, the fact that his only formal notice of the action being brought against him was that filed on September 23, 1970, long after the statutory period had run, cannot be аvoided.
When the third-party complaint was filed, the Hospital and the Doctor were made formally aware that they were being charged with negligencе in the care of Mrs. Lawlor and that they were being sought to be held liable for the damages suffered by Mrs. Lawlor as the result of their negligence. From that point on they could not lie in repose but were called upon to prepare and defend. [56 N.J. at p. 343]
The notice requirement was of prime concern to the court in Ioannou v. Ivy Hill Pk. Section Four, Inc., supra, and it went to great lengths to find that the requirement of notice was satisfied holding (at 112 N.J. Super. p. 33) that “neither actual service nor such [actual] filing within the statutory period are necessary and * * * the making of the motion to serve the third-рarty complaint within the two year period renders the Lawlor doctrine applicable and avoids the bar of the statute of limitations, even though the third-party defendants may have actually been unaware of the plaintiffs’ action during the statutory period.” But, the court, (112 N.J. Super. at p. 36) was mindful of the fact that “(t)he important thing was that the third-party action had been commenced, as far as the third-party defendant was concerned, prior to the expiration of the statutory period, in accordance with our rules, and that there was an original pleading, i.e., the third-party complaint, which antedated the running of the statute, to which there was relation back.” In the case at hand the motion for an order permitting plaintiff to file and serve an amended complaint including her husband as a defendant was filed on July 14, 1970, again far beyond the statutory period.
The motion to dismiss the complaint as to the defendant Holmes is granted.