Halpern, A.j.s.c. (orally).
This is plaintiffs' motion to amend the complaint, to add two counts charging the defendant, Chrysler Corporation, with breach of an implied warranty of merchantability. The original claims against the defendant Chrysler are grounded in negligence, alleging negligence in the manufacture and assembly of the automobile.
The alleged accident and injury occurred on August 4, 1958. The female plaintiff alleges that while driving a newly purchased automobile, the left front wheel fell off, causing the car to come to an abrupt stop and resulting in personal injuries to her. Her husband sues per quod.
The issues to be decided on this motion are:
1. What is the limitation time period within which to bring the actions sought to be added by the amendment?
2. Do the proposed amendments to the complaint set forth new causes of action which cannot now be introduced?
It is clear that where an action is brought for personal injuries, whether the physical injury arises out of tort or contract, the applicable statute of limitations would be two years. N.J.S. 2A:14-2. Burns v. Bethlehem Steel Co. , 20 N.J. 37 (1955). The six-year statute of limitations (N.J.S. 2A:14-1) which is applicable to breach of warranty actions is applied only where the relief sought is for contractual damages. See John S. Sills & Sons v. Bridgeton Condensed Milk Co. , 43 F.2d 72 (3 Cir. 1930); Berg v. Remington Arms Co. , 207 F. Supp. 65 (D. Pa. 1962).
In the instant case the physical injury was sustained by the plaintiff on August 4, 1958, and this would be the date the cause of action for personal injuries based on the alleged breach of implied warranty of merchantability came into being; and, therefore, would normally be barred by the statute of limitations on August 4, 1960. The per quod claim of the husband which arises out of and flows from the wife's
claim, would likewise be barred by the statute of limitations. It is interesting to note that in the Berg case, supra , the court held that in a personal injury suit arising out of an implied warranty, and where the statute of limitations was two and six years as in New Jersey, the cause of action which accrued first was the one that started the applicable limitations period to run. See also Courtois v. General Motors Corp. , 37 N.J. 525 (1962), where this same issue existed but was not raised or passed upon by the court.
In determining whether the proposed amendments are barred by the statute of limitations I must decide whether they state or bring into the case a new cause of action. If the answer is in the affirmative then, as I decided under the first issue, the statute of limitations would bar the amendments. If the answer is in the negative, then the statute of limitations would not bar ...