Higgins v. Schneider

• Citation: 61 N.J.Super. 36,160 A.2d 165
• Decision Date: 12 April 1960
• Docket Number: No. A--110,A--110
• Parties: Timothy HIGGINS, an infant, etc., Plaintiff, and Charles A. Higgins, Plaintiff-Appellant, v. William A. SCHNEIDER, Defendant-Respondent.
• Court: New Jersey Superior Court – Appellate Division

Page 36

61 N.J.Super. 36

160 A.2d 165

Timothy HIGGINS, an infant, etc., Plaintiff, and Charles A. Higgins, Plaintiff-Appellant, v. William A. SCHNEIDER, Defendant-Respondent.

No. A--110.

Superior Court of New Jersey

Appellate Division.

Argued Feb. 29, 1960.

Decided April 12, 1960.

Stanley W. Greenfield, Elizabeth, argued the cause for appellant.

Edward C. Hillis, Newark, argued the cause for respondent (Marley, Winkelried & Hillis, Newark, attorneys; Joseph A. Horowitz, Newark, of counsel).

Before Judges CONFORD, FREUND and HANEMAN.

The opinion of the court was delivered by

HANEMAN, J.A.D.

Plaintiff Charles A. Higgins appeals from a judgment of the Law Division, striking the second count of a two-count complaint filed by him both as guardian Ad litem for his minor son, Timothy Higgins, and in his own right as father of the infant plaintiff.

In the first count of the complaint, filed on July 9, 1958, the infant plaintiff sought damages for personal injuries sustained on July 8, 1956 when he was struck by the automobile of defendant, William A. Schneider. Charles A. Higgins, in the second count of the complaint, sued for medical expenses and loss of his son's services as a result of injuries sustained by the latter. In his answer, defendant asserted that the father's cause of action, as alleged in the second count of the complaint, was barred by virtue of the limitations imposed by N.J.S. 2A:14--2, N.J.S.A. since the complaint was filed more than two years after the date of the accident.

A motion by defendant for summary judgment on the second count of the complaint was granted by Judge Barger, sitting in the Law Division, on the ground that the parent's cause of action was barred by the statute of limitations. Plaintiff Charles A. Higgins appeals to this court from said determination.

N.J.S. 2A:14--2 reads as follows:

'Every action at law for an injury to the person caused 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 have accrued.'

The cause of action of the infant plaintiff arising out of the accident of July 8, 1956 unquestionably is not barred by the statute of limitations. The running of the statute is stayed as against the infant during his minority and for two years thereafter. N.J.S. 2A:14--21, N.J.S.A. Prior to the decision of our Supreme Court in Rex v. Hutner, 26 N.J. 489, 140 A.2d 753 (1958), it had been held that the two-year statute of limitations, dealing with personal injuries, did not apply to a parent's suit to recover damages for loss of services and medical expenses resulting from an injury to his minor child. Fryer v. Mount Holly Water Co., 87 N.J.L. 57, 93 A. 679 (Sup.Ct.1915); Wagner v. Machetto, 7 N.J.Super. 547, 72 A.2d 425 (Cty.Ct.1950); Whalen v. Young, 28 N.J.Super. 543, 101 A.2d 64 (Law Div.1953). The courts held that the two-year statute of limitations, as now set forth in N.J.S. 2A:14--2, N.J.S.A., supra, applied only to an action by the Person injured, or on his behalf, for damages resulting to him from the wrongful act of the defendant. The action of the parents, according to those cases, was based upon a violation of their Property rights, and was thus governed by the six-year statute of limitations set forth in N.J.S. 2A:14--1, N.J.S.A.

In the Rex case, supra, plaintiff husband sought to recover consequential damages for the medical expenses incurred by him and for the loss of services of his wife occasioned by the alleged failure of defendant properly to perform and render medical services to the wife. The action therein was instituted more than two years from the date when the wife's personal injuries were sustained, and her cause of action concededly was barred by reason of the limitations of N.J.S. 2A:14--2, N.J.S.A. By virtue of the authority of the Fryer line of cases cited, supra, the husband in Rex contended that his Per quod action was based upon an injury to his property rights and that it therefore was controlled by N.J.S. 2A:14--1, N.J.S.A. which permits an action to be brought within six years after the cause of action has accrued. In rejecting his position, the Supreme Court held that the phrase 'for an injury to the person,' as used in N.J.S. 2A:14--2, N.J.S.A., must be construed to mean 'an action for damages by reason of an injury to the person,' and at page 492 (26 N.J. at page 754 of 140 A.2d) declared:

'The language of the statute is not restricted to actions for damages by reason of an injury to the person who sustains the physical injury. Viewed in this light, the statute not only applies to the action for damages by the wife by reason of an injury to her person but also encompasses the action for consequential damages by the husband, whose action is only maintainable by reason of an injury to the person--the person of his wife.'

The Supreme Court did not arrive at its conclusion by holding that the husband's cause of action was simply a derivative right and thus necessarily governed by the same statute of limitations applying to the wife's cause of action. The holding in Rex was based solely on the court's interpretation of the language 'injury to the person' contained in N.J.S. 2A:14--2, N.J.S.A., and its conclusion that that phrase comprehends an action for consequential damages by a husband arising out of injury to the person of the wife. This is clearly indicated by the following language of the opinion, 26 N.J. at page 492, 140 A.2d at pages 754--755:

'Accordingly, we hold that a husband's action for consequential damages resulting from an injury to his wife is an action 'for an injury to the person' within the meaning of N.J.S. 2A:14--2, N.J.S.A. and, since the plaintiff's action was not commenced within the two year period specified therein, it is barred.'

To the extent that the prior New Jersey cases held that the two-year limitation in N.J.S. 2A:14--2, N.J.S.A. applied only to an action By the person injured, and that a suit for consequential damages resulting from personal injuries sustained by another was based on a property right and not one for 'an injury to the person,' they were expressly overruled in Rex, and the above reasoning therefore applies to a consequential cause of action of a parent as well as to that of a husband. The court so expressly indicated (26 N.J., at page 494, 140 A.2d at page 755), referring to the Fryer, Wagner and Whalen cases:

'However, to the extent that these cases hold that the two-year limitation in N.J.S. 2A:14--2, N.J.S.A. applies only to an action by the person injured, and that suits for consequential damages resulting from personal injuries sustained by another is one based on a property right and not one for 'an injury to the person,' they are inconsistent with our construction of the statute and are overruled.'

It is true that the court in Rex distinguished the Fryer line of cases on the ground that at the time the parents' suits therein were instituted, the two-year statute of limitations had not run against the infants' claim, the operation of the statute being suspended because the infants were under a statutory disability (26 N.J., at page 494, 140 A.2d at page 755). We read this expression, however, merely as a notation of a factual distinction between the case then before the court and the prior cases, as is evidenced by the succeeding sentence at page 494 of 26 N.J., at page 755 of 140 A.2d quoted above, which represents the sole actual holding of the case.

It is obvious that the court in Rex did not intend by its point of distinction of the Fryer line of cases, just noted, a deliberate or considered determination that a parent's, as well as an infant's, cause of action was entitled to the benefit of the provision of N.J.S. 2A:14--21, N.J.S.A. which tolls the statute of limitations Only in the case of a minor or an insane person. In short, the Rex case stands for nothing more, in the parent-infant context, than that an action for consequential damages by a parent is an action for 'an injury to the person' and must be commenced within two years after the cause of action has accrued.

The question posed by the instant case is whether or not the extension of the limitation period provided by N.J.S. 2A:14--21, N.J.S.A. because of infancy or insanity can be applied to the parent's cause of action as well as to the infant's. This precise question has not yet been directly passed upon by any decision of this State.

In a somewhat analogous case the Law Division has stated that:

'The father's right of action is not for the injury to the infant plaintiff, but for the injury to the parent as a consequence of the injury to the child.' Trevorrow v. Boyer, 52 N.J.Super. 215, 218, 145 A.2d 154, 156 (1958).

There the court, citing Maccia v. Tynes, 39 N.J.Super. 1, 120 A.2d 263 (App.Div.1956) and Kimpel v. Moon, 113 N.J.L. 220, 174 A. 209 (Sup.Ct.1934), further declared that the right of a parent to the service of an infant injured in an accident and to reimbursement for medical expenses incurred by him on behalf of the child is not derivative, but independent and separate from that of the child. Also see Blanken v. Braslow, 130 N.J.L. 475, 33 A.2d 742 (Sup.Ct. 1943); Prosser on Torts, 702, 703 (2d ed. 1955); Cf. Danek v. Hommer, 9 N.J. 56, 60, 87 A.2d 5 (1952). Trevorrow, supra, involved a personal injury action by a minor through her father as guardian Ad litem and by her father individually for consequential damages. The father failed to file a required notice within 90 days of the accident with the Unsatisfied Claim and Judgment Board, and the court therefore denied his application for an order directing the Treasurer of the State of New Jersey to pay his judgment. On the other hand, the court held that since an infant was involved, her notice was timely so long as it was filed within 90 days of the commencement of the suit on her behalf by her guardian Ad litem. The court...