Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Kolovsky, J.A.D.
On January 25, 1959 plaintiff Rita Knutsen (Rita), then seven months pregnant, was sitting in the front seat of an automobile being driven by her husband Harold when it was involved in a collision with automobiles driven by one Salamon and one Weindorf. Rita was thrown forward, injured her shin and was struck in the abdomen by her three-year old son who had been sitting on her lap.
On February 7, 1959 Rita gave premature birth to a child, plaintiff Jeffrey Knutsen.
Separate personal injury negligence actions instituted on behalf of the infant Jeffrey and the parents against Salamon and Weindorf were consolidated for trial. The consolidated cases, tried in February 1963, resulted in jury verdicts of $17,000 for the infant Jeffrey, $1,700 for Rita and a verdict of no cause for action as to the father and husband Harold.
A motion to set aside the verdicts as inadequate was denied. No appeal was taken. On June 14, 1963 Rita was appointed guardian of the person and property of Jeffrey. On June 18, 1963, having received payment of the amounts due on the judgment entered on the jury verdicts, Rita, both individually and as Jeffrey's general guardian, executed and delivered a warrant to satisfy the judgment.
Some 13 months later, on July 10, 1964, the present action was instituted to recover for injuries allegedly sustained by Jeffrey as the result of defendants' alleged negligence and medical malpractice, Jeffrey's parents suing per quod. Joined as parties defendants were the hospital in
which Jeffrey was born, Dr. Brown, the attending obstetrician, and three pediatricians who at various times up to August 1959 had treated Jeffrey.
Following the pretrial conference defendants moved for summary judgment, contending that the parents' per quod claim was barred by the statute of limitations and that the infant's claim had been fully satisfied by reason of the payment and satisfaction of the judgment entered in the automobile accident case.
The trial court denied summary judgment as to the infant's claim; it granted summary judgment dismissing the parents' derivative claim. Upon leave granted, defendants appeal from the denial of the motion as to the infant's claim; plaintiffs-parents appeal from the dismissal of their action.
We affirm, for the reasons expressed in the trial court's opinion, its determination that at the time this action was instituted on July 10, 1964 the parents' derivative claim was barred by the statute of limitations, N.J.S. 2A:14-2. That cause of action was not and could not be revived by the subsequent enactment of N.J.S. 2A:14-2.1, which became effective on October 28, 1964.
The issue presented with respect to the infant's claim is whether the satisfaction of the judgment entered in the automobile accident case establishes, as defendants contend, that the infant has already received satisfaction for the injuries alleged to have resulted from the malpractice charged against defendants, so that prosecution of the malpractice action is barred.
The rationale controlling this case is to be found in Daily v. Somberg, 28 N.J. 372, 69 A.L.R. 2 d 1024 (1958), where, as here, plaintiff instituted successive actions against the driver and owner (Dealer's) of the automobile which injured him and against the treating physicians ...