[113 NJSuper Page 446] This case involves the availability of the statute of limitations as a defense to an interspousal suit for personal injuries.
Plaintiff, Joan Holmes, was a passenger in an automobile driven by her husband, Robert L. Holmes, which collided with an automobile operated by Everett L. Russ, Sr., on December 22, 1967. As a result of this collision, plaintiff sustained personal injuries and on January 24, 1968, instituted suit against Russ. An action for property damage was commenced on behalf of Robert L. Holmes by his collision insurance carrier against Russ on August 19, 1968, in the Camden County District Court. These actions were consolidated on January 17, 1969 for trial. Thereafter, on the basis of the decision in Immer v. Risko , 56 N.J. 482 (1970), plaintiff sought leave and was granted permission to file an amended complaint including her husband as a defendant. The amended complaint was filed on September 23, 1970. The answer filed on behalf of the husband denied negligence and raised the statute of limitations as a separate defense. At the trial on the issue of liability only the jury returned a verdict against both defendants. The husband then filed a motion to dismiss the complaint on the ground that the plaintiff's action against him was barred by the statute of limitations.
Prior to Immer v. Risko, supra , which abolished the interspousal immunity doctrine as it applied to automobile negligence actions, a wife could not sue her husband in tort for his wrongful acts toward her and a joint tortfeasor was precluded from seeking contribution from the erring spouse. Kennedy v. Camp , 14 N.J. 390 (1954). The recent opinion by Judge Waugh in Darrow v. Hanover Township and the County of Morris , 112 N.J. Super. 396 (Law Div. 1970), holding that Immer v. Risko, supra , should be applied retrospectively, eradicates the interspousal incapacity to sue only as it applies to actions accrued after July 10, 1968. A tortfeasor acting prior to July 10, 1968 would still possess the defense of the two-year statute of limitations.
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.
A statute of limitation is one of repose. Miller v. Board of Chosen Freeholders, Hudson County , 10 N.J. 398, 403 (1952). It has always been held that when a right of action has become barred under existing laws, the right to rely upon the statutory defense is a vested right. Thorpe v. Corwin , 20 N.J.L. 311, 316 (Sup. Ct. 1844); Ryder v. Wilson's Ex'rs , 41 N.J.L. 9 (Sup. Ct. 1879); Moore v. State , 43 N.J.L. 203 (E. & A. 1881); State by Parsons v. Standard Oil Co. , 5 N.J. 281 (1950), affirmed 341 U.S. 428, 71 S. Ct. 822, 95 L. Ed. 1078 (1951); Miller v. Board of Chosen Freeholders, Hudson County, supra; Burns v. Bethlehem Steel Co. , 20 N.J. 37 (1955); Rex. v. Hunter , 26 N.J. 489 (1958).
Once the right to rely upon the statutory defense becomes vested it cannot be rescinded or disturbed by subsequent legislation. Ryder v. Wilson's Ex'rs, supra , 41 N.J.L. at p. 11; Moore v. State, supra , 43 N.J.L. at p. 206-208; State v. Standard Oil Co., supra , 5 N.J. at p. 293-294; Burns v. Bethlehem Steel Co., supra , 20 N.J. at p. 42. If the vested right may not be rescinded, abrogated or impaired by subsequent legislation it may not be done by judicial decision. Markey v. Robert Hall Clothes of Paterson , 27 N.J. Super. 417, 421 (Cty. Ct. 1953).
Plaintiff argues that Immer v. Risko, supra , created a cause of action and therefore the statute of limitations commenced to run from July 10, 1970, the date of that decision. This argument is specious. Immer v. Risko, supra , made no attempt to deal with, let alone destroy, the defense of the statute of limitations. It did not revive any stale causes of action. It merely struck down a previously admitted defense of interspousal immunity. The cause of action was always there from its date of accrual, which of course, was December 22, 1967, the date of the collision.
Plaintiff does not argue that her husband was made a defendant to her action before the ...