For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Schettino. For affirmance -- Justices Hall and Haneman. The opinion of the court was delivered by Schettino, J. Proctor, J. (concurring).
[44 NJ Page 101] Plaintiff instituted suit on May 28, 1962, in the Superior Court, Law Division, for personal injuries sustained when she fell on the sidewalk of defendant's premises on January 21, 1957. Her complaint alleged that her mental disability tolled the statute of limitations, N.J.S. 2A:14-21. Defendant asserted the statute of limitations as an affirmative defense (i.e., the complaint had not been filed within two years from the date of the alleged accident). It took plaintiff's depositions, and thereafter moved for summary judgment basing its argument on the statute and depositions. The trial court, finding that no genuine issue as to any material fact existed (R.R. 4:58-3), and that the complaint had not been filed within the prescribed period of limitation, granted defendant's motion. Plaintiff appealed and we certified the matter before argument in the Appellate Division.
When plaintiff fell on defendant's icy sidewalk, she sustained a fractured hip. She was taken to Mountainside Hospital, given medication and had her hip pinned on January 23, 1957. She was released from the hospital on February 14, 1957, stayed in a nursing home for approximately one month, lived at home with nursing care for several days and then on March 14, 1957 procured her own admission to New York Hospital for an operation for the treatment of the hip and for the treatment of a nervous disorder. In this hospital the psychiatric treatment included medication and shock therapy. She was released on July 31, 1957, returned home where she stayed until August 27, 1957, when she was voluntarily admitted to the Essex County Overbrook Hospital, a hospital for mental patients.
On October 13, 1957, she was officially committed as "insane." She was released to a nursing home in April 1961 and was officially discharged from Overbrook in March 1962. As noted above, her complaint was filed May 28, 1962.
In her depositions she stated that right after the accident she realized that her nervous system was affected, i.e.:
"A. Well, after the operation I realized, and now, I cannot tell you whether it was the day after or two days after or how many days after, but I knew that in addition to having the broken hip that my nervous system was affected because I couldn't read.
Q. Now, how soon after the accident did you begin to feel that your nerves were affected? A. That's what I say. I can't tell you whether it was the next day or two days but it was very very soon, very soon."
Besides the inability to read, she stated that she lost her sense of hunger, that her tear glands, her salivary glands, and the glands which provide moisture for the nose and wax for the ears were inoperative, and that there were other effects. She also referred to a prior "nervous" ailment in about 1942 which required hydrotherapy and medication treatments at a New York hospital for approximately one year. However, she stated that she was, at the time of the accident, and had been for seven years in "radiant health."
Historically, the laws limiting actions were the creation of statute. In the case of torts at common law, the maxim, actio personalis moritur cum persona, applied, and the action was there limited by the duration of the life of either party. The fiction of presumption of payment after a period of time operated as a check on stale demands. Although the Parliament did not at first fix any certain period within which actions should be started, when the abuses from stale demands became unendurable, it passed from time to time and at certain notable times various statutes barring suits and actions, the causes of which arose previous to their respective dates, i.e., the beginning of the reign of King Henry the First, the return of King John from Ireland, the journey of Henry the Third into Normandy, and the coronation of King Richard the First. The early statutes applied to realty alone, and, though productive of immediate relief, the advantage was only temporary.
In the reign of Henry the Eighth a comprehensive course was taken by the statute of 32 Henry VIII, c. 2, (1540) so that, in the language of Lord Coke, 2 Inst. 95, "by one constant law certain limitations might serve both for the time present and for all times to come." The limitation of time, in every case, was reduced to a fixed interval between the accrual of the right and the commencement of the action. It contained a saving clause for disabilities but the statute as a whole did not deal with personal actions and made no reference to insanity. I Wood, Limitations of Actions (4 th ed. 1916), sec. 2, pp. 5-7; 34 Am. Jur. Limitations of Actions, sec. 2, p. 14.
The statute here particularly relevant is 21 James 1, c. 16 (1623) which dealt with specific limitations of actions and made the first reference to insanity i.e., non compos mentis, as a disability which would toll the running of the statute. Section 7 provided:
"Provided nevertheless, and it be further enacted, That if any person or persons that is or shall be entitled to such action of trespass, detinue, action sur trover, replevin, actions of accounts, actions of
debts, actions of trespass for assault, menace, battery, wounding or imprisonment, actions upon the case for words, be or shall be at the time of any such cause of action given or accrued, fallen or come, within the age of twenty-one years, femme covert, non compos mentis, imprisoned or beyond the seas, that then such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as are before limited, after their coming to or being of full age, discovert, or sane memory, at large, and returned from beyond the seas, as other persons having no such impediment should have done."
This statute was in effect in New Jersey until 1799.*fn1 From that point the New Jersey statutes were controlling. An act for the limitation of actions was passed by the council and general assembly of New Jersey in 1799, providing for limitation of actions in several fields. Paterson's Laws, 352.*fn2 The one here relevant (personal actions) had a saving clause almost
identical to that of 21 James 1, c. 16, Section 4, which stated [21 James 1, c. 16 is within brackets]:
"Provided always, and be it further enacted, That if any person or persons, who [that] is, are, or shall be entitled to any of the actions specified in the three preceding sections of this act, [such action of * * *] is, [be] are, or shall be, at the time of any such cause of action accruing, [given or accrued, fallen or come] within the age of twenty-one years, feme covert, or insane, [ non compos mentis, imprisoned or beyond the seas,] that then such person or persons shall be at liberty to bring the said action [same actions] so as he, she or they institute or take the same within such time [times] as is [are] before limited, after his, her or their coming to or being of full age, discovert, or of sane memory, [at large, and returned from beyond the seas,] as by other person or persons, having no such impediment, might [should] be done."
The act was supplemented on February 21, 1820 with a provision tolling the statute if the defendant was a nonresident. Laws of New Jersey (1820), p. 46. In 1841 it was again supplemented, tolling the statute for six months when the defendant died. Laws of New Jersey (1841), p. 48; Harrison, Public Laws of New Jersey (1843), p. 428. There was a revision of 1845, Statutes of New Jersey (1847), p. 92, which did not essentially change the 1799 act but consolidated the original and all the supplements. By Rev. 1877, p. 594, 3 Compiled Statutes of New Jersey (1709-1910), pp. 3164-5 the Legislature revised the disability section by deleting any reference to feme covert as a disability which would toll the statute.
The statute was again revised in 1937, R.S. 2:24-4. In its present form it (N.J.S. 2A:14-21), states [the 1877 statute is in brackets]:
"If any person entitled to any of the actions or proceedings specified in Sections 2A:14-1 to 2A:14-8 or Sections 2A:14-16 to 2A:14-20 of this title or to a right or title of entry under Section 2A:14-6 of this title [That if any person or persons who is, are or shall be entitled to any * * *] is or shall be, at the time of any such cause of action or right or title accruing, under [within] the age of 21 years, or insane, such person [that then] may commence such action [shall be at liberty to bring said] or make such entry, within such time as limited by said sections, after his coming to or being of full age or of
sane mind*fn3 [so as he, she or they institute or take the same within such time as is before limited after his, her or their coming to or being of full age, or of sane memory, as by other person ...