Conford, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D. Freund, J.A.D. (dissenting).
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. 2 A:14-2 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. 2 A: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. 2 A:14-21. Prior to the decision of our Supreme Court in Rex v. Hutner , 26 N.J. 489 (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 (Sup. Ct. 1915); Wagner v. Machetto , 7 N.J. Super. 547 (Cty. Ct. 1950); Whalen v. Young , 28 N.J. Super. 543 (Law Div. 1953). The courts held that the two-year statute of limitations, as now set forth in N.J.S. 2 A:14-2, 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. 2 A:14-1.
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. 2 A:14-2. 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. 2 A:14-1 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. 2 A:14-2, must be construed to mean "an action for damages by reason of an injury to the person," and at page 492 (26 N.J.) declared:
"The language of the statute is not restricted to actions for damages by reason of any 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. 2 A:14-2, 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, at page 492:
"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. 2 A:14-2 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. 2 A:14-2 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), 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. 2 A:14-2 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 ...