This matter is submitted to the court on companion motions for summary judgment in favor of defendants Richard J. Dull and James W. Marsh.
The factual situation is quite simple. It involves a typical three-car chain collision on Route 40 in Salem County on December 27, 1964. Plaintiff Edith Marsh, a resident of North Carolina, was a passenger in the number two car, operated by her brother James W. Marsh, a resident of Maryland. Initially, she instituted her suit on December 22, 1966 against Augustus Davis, a resident of New Jersey, the operator of the number three car. On April 26, 1967 Davis filed a third-party complaint against James W. Marsh and Richard J. Dull, a resident of Pennsylvania, the operator of the number one car. Service was obtained on defendants through the Director of Motor Vehicles pursuant to N.J.S.A. 39:7-2.
On July 3, 1967 plaintiff filed an amended complaint naming Davis, Dull and Marsh as defendants. Marsh answered denying negligence but made no mention of the statute of limitations as a defense. Dull in his answer pleaded the statute as a separate defense. Both of these defendants now move for summary judgment in their favor, bottomed on the contention that the action is barred by the two-year statute of limitations, N.J.S. 2A:14-2.
Plaintiff's amended complaint is not saved from the statute of limitations by Davis' third-party complaint against Dull and Marsh filed more than two years after the accident. Taylor v. Loyal Order of the Moose, 90 N.J. Super. 1 (Law Div. 1965).
The failure of Marsh to raise the defense of the statute of limitations in his answer is no bar to raising
the matter by the method of this motion since the bar of the statute, if it applies, appears on the face of the complaint. Rappaport v. Flitcroft, 90 N.J. Super. 578 (App. Div. 1966); Feil v. Sensi, 7 N.J. Super. 517 (Law Div. 1950).
Plaintiff meets defendants' motion by contending her cause of action is saved by the statute N.J.S. 2A:14-22, which tolls the statute of limitations during the time that defendants are nonresidents of this State. Defendants counter by arguing that the tolling statute, N.J.S. 2A:14-22, benefits only resident plaintiffs. The nonresident plaintiff responds that she is entitled to the benefit of the tolling statute since her cause of action accrued in this State.
Since the accident occurred in New Jersey, which state is also the forum, there can be no doubt but that the New Jersey statute of limitations and tolling statute apply. Cf. Marshall v. Geo. M. Brewster & Son, Inc., 37 N.J. 176 (1962); Department of Mental Health of Com. of Kentucky v. Mullins, 56 N.J. Super. 449, 458 (App. Div. 1959), affirmed 31 N.J. 598 (1960).
At the outset it should be noted that at least one aspect of this case has been settled by our Supreme Court. Lemke v. Bailey, 41 N.J. 295 (1963), puts to rest the question whether the statute of limitations may be tolled in actions involving a motor vehicle collision where defendant is a nonresident, notwithstanding the fact that such defendants may be served through the Director of Motor Vehicles pursuant to the provisions of N.J.S.A. 39:7-2. In other words, the susceptibility to service through the Director does not make a nonresident defendant a resident within the meaning of N.J.S. 2A:14-22. The fact that New Jersey finds itself with the minority view and should change its position was put to the court (see dissenting opinion of Schettino, J. 41 N.J. at 303). A compilation of the various state positions may be found in the appendix to the opinion in Daigle v. Leavitt, 54 Misc. 2 d 651, 283 N.Y.S. 2 d 328 (Sup. Ct. 1967).
Here, for the first time in this State so far as we can learn, we have the problem of an individual nonresident plaintiff and defendant involving a cause of action which accrued in this State. Therefore, the present case is not necessarily fully determined by Lemke, for there plaintiffs were New Jersey residents. I am satisfied, however, ...