On certification to the Superior Court, Appellate Division, whose opinion is reported at 155 N.J. Super. 273 (1978).
For reversal and remandment -- Justices Mountain, Sullivan, Clifford and Handler. For affirmance -- Chief Justice Hughes and Justice Pashman. The opinion of the court was delivered by Handler, J. Sullivan, J. (concurring in result). Pashman, J., dissenting. Hughes, C.J., dissenting.
Plaintiff Janina Tevis instituted a suit for damages for injuries received as a result of a physical beating administered by her husband, Michael Tevis. This occurred in the early morning of May 14, 1973. The suit was commenced on July 7, 1975. Defendant brought a motion for summary judgment to dismiss the complaint, claiming that the action was barred by the two-year statute of limitations, N.J.S.A. 2A:14-2. That motion was denied. The trial court also ruled that the action was not barred by the doctrine of interspousal immunity since the parties were divorced at the time of the action. The matter proceeded to trial and a jury returned a verdict awarding plaintiff $25,000 in compensatory and $10,000 in punitive damages.
In a reported decision, Tevis v. Tevis, 155 N.J. Super. 273 (1978), the Appellate Division affirmed as to compensatory damages, holding that neither the bar of the statute of limitations nor that of interspousal immunity applied in this case. The court, however, reversed the judgment as to punitive damages on the ground that the trial court improperly prevented defendant from submitting proof of provocation in mitigation of those damages. The defendant petitioned this Court for certification on the statute of limitations and interspousal immunity issues and the plaintiff cross-petitioned on the issue of mitigation of punitive damages. This Court certified both petitions. 77 N.J. 483 (1978). We reverse the judgment below on the ground that the action is time-barred and remand the matter to the trial court for the entry of summary judgment in favor of defendant.
According to the trial testimony of Mrs. Tevis and two of her children, she had returned home in the early morning on May 14, 1973 after having spent the evening out. Shortly after entering the house her husband began to beat her. Plaintiff suffered substantial injuries which were corroborated by the testimony of her treating physician and by photographs of her face and body taken shortly after the event. Defendant denied having struck his wife and claimed she had injured herself when she slipped and fell while trying to kick him during the course of an argument. He also asserted by way of a proffer of proof that the argument erupted when he returned home that night and he became provoked upon seeing his wife with another man in a car parked in front of the house.
Following this incident, plaintiff sought the advice of an attorney. She instituted a criminal complaint against her husband in the local municipal court which was later dismissed. On May 22, 1975 the parties were divorced. On July 7, 1975, some six weeks after the divorce and over two years after the assault and battery, plaintiff brought this tort action against the defendant for personal injuries.
The statute of limitations relevant to this kind of action, N.J.S.A. 2A:14-2, provides that:
Every action at law for an injury to the person caused by the wrongful act * * * of any person within this state shall be commenced within 2 years after the cause of any such action shall have accrued.
The trial court held that, because the bar of interspousal immunity prevented the successful maintenance of a suit by a wife against her husband during marriage for injuries arising from an intentional tort, plaintiff's cause of action did not accrue until that bar was lifted by the parties' divorce. Since the lawsuit was instituted well within two years of the divorce, the statute of limitations was deemed not to bar the action. The Appellate Division, while agreeing with the result reached by the trial court, disagreed with its reasoning.
The appellate court stated that, while the interspousal immunity doctrine would have actually barred the instant suit if it had been brought earlier in time, that disability was removed by this Court's decision in Small v. Rockfeld, 66 N.J. 231 (1974). The court characterized that case as effectively extending the abolition of the doctrine to interspousal torts based on gross negligence and intentional injury. 155 N.J. Super. at 277. The Appellate Division concluded that the present action thus became maintainable, and therefore accrued, on the date Small v. Rockfeld was decided, namely, December 17, 1974, and, since the statute of limitations began to run from that time, the lawsuit was timely filed within two years of that date.
The thinking of the Appellate Division with respect to the application of the doctrine of interspousal immunity to intentional or egregious torts raises its own conceptual difficulties. Since we have determined that this action is barred by the statute of limitations, there would be no need to dwell on the Appellate Division's analysis of the interspousal immunity doctrine in this case except that its perception of the doctrine has contributed to a result which is incorrect.
The subject of interspousal tort immunity has been treated comprehensively and exhaustively in the recent decision of Merenoff v. Merenoff, 76 N.J. 535 (1978). We there traced with some care the evolution of the doctrine. Id. 539-547. Our decision definitively abrogated the doctrine of immunity with respect to interspousal torts with certain limited exceptions. Id. at 557. It is clear from the facts of those companion cases and from the statement of our holding that the abolition of the doctrine pertained to tortious conduct generally encompassing not only conventional negligence but also intentional acts, as well as other forms of excessive behavior such as gross negligence, recklessness, wantonness, and the like. The only kind of marital conduct excepted
from the abolition was that involving marital or nuptial privileges, consensual acts and simple, common domestic negligence, to be defined and developed on a case-by-case approach. Id. at 557, 558-559. The inclusion of intentional and aggravated torts within the abolition of interspousal immunity in Merenoff is underscored by our approving reference to the decision of the Appellate Division in this very case for the proposition that it "refus[ed] to apply interspousal immunity to a claim based upon an intentional tort committed by a husband against his wife." Id. at 546.
The Appellate Division believed that the case of Small v. Rockfeld, decided three years before Merenoff, sounded the death knell of the interspousal immunity doctrine for intentional torts. Yet, arguably Small v. Rockfeld need not have treated the issue of interspousal immunity. Although the defendant in that action asserted the defense of both the interspousal and interfamilial doctrines, the action was brought under the Wrongful Death Act (N.J.S.A. 2A:31-1 et seq.) for the pecuniary loss sustained by the decedent's infant daughter. There was no claim on behalf of the deceased wife which would invoke the marital immunity bar. In any event the marital relationship between the parties had been dissolved by the death of the wife, a situation earlier recognized as not raising the interspousal bar. Long v. Landy, 35 N.J. 44 (1961). Moreover, the Court in Small v. Rockfeld expressed the view that it was not its decision so much as the important case of Immer v. Risko, 56 N.J. 482, decided four years before in 1970, which effectively interred the doctrine. Small v. Rockfeld, supra, 66 N.J. at 241. Indeed, the coup de grace of the interspousal immunity doctrine for intentional torts might be thought to have been actually dealt by the Appellate Division in this case, a possibility which occurred to us in Merenoff, supra, 76 N.J. at 546.
The only point of this schoolmen's discussion is to highlight the uncertainty of using the demise of the doctrine of interspousal immunity as a tool for applying the statute of limitations. The nebulous state of the law of marital immunity
permits it to cater to anyone's predilections so far as invoking the statute of limitations. Moreover, this approach would permit the assertion of marital tort claims long after the commission of the tort itself and would encourage the resurrection of old marital grievances, a disfavored policy consistently rejected by our courts. Cf. Merenoff v. Merenoff, supra at 560; Darrow v. Hanover Twp., 58 N.J. 410 (1971).
The immunity doctrine is also unsatisfactory if marshalled in this case as a theoretical construct, as part of the legal definition of the tort and a determinant of when the tort itself may be said to have occurred. The Appellate Division characterized the interspousal immunity doctrine as "so elemental to the maintainability of the action that its existence will defeat the action even if not properly pleaded". 155 N.J. Super. at 279. For this reason, it believed that as long as the doctrine was viable, plaintiff's cause of action could not arise.
In reaching this conclusion, the lower court focused upon the consequences of the failure to plead or otherwise assert immunity as an affirmative defense to a timely-filed tort action, citing Faul v. Dennis, 118 N.J. Super. 338, 343-344 (Law Div. 1972). But compare Holmes v. Russ, 113 N.J. Super. 445 (Law Div. 1971). Cf. O'Connor v. Abraham Altus, 67 N.J. 106, 116 (1975); Rappeport v. Flitcroft, 90 N.J. Super. 578 (App. Div. 1966). We are not dealing here, however, with that kind of problem. The present question is whether the statute of limitations should serve to bar this action, not whether marital immunity, though not pleaded, would have served as a bar had the action been brought within time. More to the point, interspousal immunity, when asserted as a bar to bringing an action, has not been treated invariably by our courts as a substantive element inhering in the cause of action. Despite certain dicta in Kennedy v. Camp, 14 N.J. 390, 396 (1954) that "* * * a wife cannot sue her husband for beating her during coverture, even after divorce", later decisions recognized the right to bring an interspousal cause of action in tort even though the tort was committed while
the parties were married. E.g., Small v. Rockfeld, supra; Long v. Landy, supra; Sanchez v. Olivarez, 94 N.J. Super. 61 (Law Div. 1967); cf. Eule v. Eule Motor Sales, 34 N.J. 537 (1961), cited and discussed in Merenoff v. Merenoff, supra, 76 N.J. at 544-545. And, following Immer v. Risko, it should have been just as obvious that the continuing marriage of the ...