Tevis v. Tevis

The opinion of the court was delivered by

Handler, J.

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. 8. 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 ear 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. 8. A. 2A:14-2, provides that:

Every action at law for an injury to the person caused by the wrongful act * * * of any perdón 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 inter-spousal 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.

I

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-ease approach. Id. at 557, 558-559. The inclusion of intentional and aggravated torts within the abolition of inter-spousal 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 in-terspousal 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. Rochfeld, decided three years before Merenoff, sounded the death knell of the interspousal immunity doctrine for intentional torts. Yet, arguably Small v. Rochfeld need not have treated the issue of interspousal immunity. Although the defendant in that action asserted the defense of both the inter-spousal 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 ease of Immer v. Risko, 56 N. J. 482, decided four years before in 1970, which effectively interred the doctrine. Small v. Rochfeld, 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 inter-spousal 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. Eor 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’Oonnor 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 parties per se would not prevent the bringing of a lawsuit for personal injuries based on tort.

We have recognized in principle that immunities serve primarily to bar or curtail recovery — to absolve from liability, W. Prosser, 'Law of Torts 970 (4th ed. 1971) — rather than to define liability or describe what constitutes wrongful conduct. Merenoff v. Merenoff, supra at 547. It was appreciated by this Court quite some time ago that “[t]he negligent infliction of injury by a husband upon his wife is a wrongful act” and that “[i]t does not lose this quality merely because the wife is prohibited by the common law doctrine from enforcing liability for her damage”. Long v. Landy, supra, 35 N. J. at 50. It may be that there are contexts in which it is plausible to conclude that an immunity is a constituent element of a cause of action; nevertheless, strong considerations, grounded in a public policy which favors the redress of wrongfully inflicted injuries, dictate that immunity, when used as a shield to defeat recovery, he established affirmatively. Cf. Ellison v. Housing Authority of South Amboy, 162 N. J. Super. 347, 351 .(App. Div. 1978) (construing provisions of the Yew Jersey Tort Claims Act, N. J. S. A. 59:1-1 et seq.).

Aside from the characterization of marital immunity as either a substantive element of a cause of action or an affirmative defense to a cause of action, the doctrine should not be viewed as a catalyst which renders wrongful acts innocuous. Cf. Merenof v. Merenof, supra; Long v. Landy, supra. Additionally, it is well to note that historically inter-spousal tort immunity was a common law tenet with the inherent mutability of the common law. As a common law principle, it has always been vulnerable to challenge and peculiarly subject to judicial modification in light of changing social conditions and ascendant notions of public policy. E. g., Merenoff v. Merenoff, supra, 76 N. J. at 548-549, citing State v. Culver, 23 N. J. 495, 505, cert. den. 354 U. S. 925, 77 S. Ct. 1387, 1 L. Ed. 2d 1441 (1957).

We are satisfied that these reasons countermand the use of marital immunity to toll the operation of the statute of limitations upon a cause of action. 51 Am. Jur. 2d Limitation of Actions § 191 at 758-759. It is our conclusion that the assumed existence of the doctrine of interspousal immunity at the time plaintiff was wrongfully injured by her husband did not, in this case, prevent her cause of action from then and there accruing.

II

The question may be raised as to whether plaintiff’s cause of action having accrued at the time she suffered injuries at the bands of her husband, the running of the statute of limitations should be tolled for other reasons. The general statute of limitations governing a tort action such as plaintiff’s, N. J. S. A. 2A:lL-2, is predicated on certain assumed objectives. These policies would appear to be met by the application of the statute as a bar to plaintiff’s suit in this case.

Primarily, statutes of limitations are statutes of repose. See, e. g., Fox v. Passaic General Hospital, 71 N. J. 122 (1976); Lopez v. Swyer, 62 N. J. 267 (1973); Fernandi v. Strully, 35 N. J. 434 (1961). They reflect a public policy and underlying legislative judgment that claims for redress resulting from the injurious acts of others shall be settled relatively soon, within a legislatively-specified period of time, notwithstanding the vagaries of human conduct and the uncertainties of human affairs. See Rothman v. Silber, 90 N. J. Super. 22 .(App. Div.), certif. den. 46 N. J. 538 (1966). Limitations statutes are designed to induce the assertion of claims within a reasonable time so that the charged party has a fair opportunity to defend. These statutes spur dil-igenee in the vindication of legal claims in order to avoid the unfairness and injustice which stem from litigation based on distant circumstances and faded memories. Kaczmarek v. New Jersey Turnpike Authority, 77 N. J. 329 (1978); Rosenau v. City of New Brunswick and Gamon Meter Co., 51 N. J. 130 (1968).

With respect to tort actions, the Legislature has not defined in the statute of limitations when a cause of action “shall have accrued” (N. J. 8. A. 2A:14-2). The accrual of a cause of action in the tort field has been a matter for judicial determination. Rosenau v. City of New Brunswick and Gamon Meter Co., supra; Fernandi v. Strully, supra; compare Lawrence v. Bauer Publishing & Printing, Ltd., 78 N. J. 371 (1979) (an action for libel arises upon “publication”, N. J. 8. A. 2A:14-3). We have long held that a cause of action in tort accrues at the time when a right first arises to institute and maintain an action against a wrongdoer. F. g., Tortorello v. Reinfeld, 6 N. J. 58 (1950); Fredericks v. Dover, 125 N. J. L. 288 (E. & A. 1940). The right to maintain an action is not a prediction of success; it does not import the notion that the claimant will prevail on the merits or overcome all legal disabilities or affirmative defenses. It means simply the right to commence the action and to remain in court for purposes of having the claim adjudicated, as well as the opportunity to counter any legal or factual defenses which are raised. When this right attaches, the cause of action accrues. This is usually at the time of the commission of the wrong and the suffering of injury. Rosenau v. City of New Brunswick and Gamon Meter Co., supra; Diamond v. N. J. Bell Telephone Co., 51 N. J. 594 (1968); Tortorello v. Reinfeld, supra, 6 N. J. at 65.

In certain circumstances, the court has attempted to mitigate the sometimes harsh results arising from the inflexible application of this standard by invoking the “discovery” rule. Under this rule, the statute of limitations is deemed not to begin to run until the injured party knows, or by the exercise of reasonable diligence should have learned, that he may have a basis for an actionable claim. E. g., Burd v. New Jersey Telephone Company, 76 N. J. 284 (1978); Lopez v. Swyer, supra; Alfone v. Sarno, 139 N. J. Super. 518 (App. Div. 1976). Thus, when a party is either unaware that he has sustained an injury or, although aware that an injury has occurred, he does not know that it is, or may be, attributable to the fault of another, the cause of action does not accrue until the discovery of the injury or facts suggesting the fault of another person. See Lopez v. Swyer, supra. It is a rule most frequently summoned in medical malpractice cases, see e. g., Fox v. Passaic General Hospital, supra; Moran v. Napolitano, 71 N. J. 133 (1976); Fernandi v. Strully, supra; Alfone v. Sarno, supra, although it has found some other applications in the tort field, e. g., Diamond v. N. J. Bell Telephone Co., supra (improper installation of an underground conduit); New Market Poultry Farms, Inc. v. Fellows, 51 N. J. 419 (1968) (error in land survey).

This rule is of no aid to plaintiff in the present case. She knew of her injuries and was simultaneously aware of their cause in the person of her husband at the moment of the assault and battery. That she might not then have prevailed in a lawsuit if the interspousal immunity bar were raised and asserted, even if true, does not mean that her cause of action did not then arise. The discovery rule has been, and is, pertinent only in those circumstances in which a plaintiff was not, and reasonably could not be, aware of the underlying factual basis for a cause of action. Burd v. New Jersey Telephone Company, supra, 76 N. J. at 291-292; Rankin v. Sowinski, 119 N. J. Super. 393 (App. Div. 1972); Holmes v. Russ, supra. That is not this case. Plaintiff’s cause of action accrued when she was battered and the running of the statute of limitations from that point in time was not postponed by the undiscoverability of any latent facts crucial to the existence of the cause of action.

Ill

The question remains as to whether other equitable considerations may relieve plaintiff of the onus of the statute of limitations. “* * * [I]n each case [involving the application of the statute of limitations] the equitable claims of opposing parties must be identified, evaluated and weighed.” Lopez v. Swyer, supra, 62 N. J. at 274. We have noted that, in appropriate situations, it would be remiss of the court to apply strictly and uncritically a statutory period of limitations without conscientious consideration of the circumstances of the individual case. Kaczmarek v. New Jersey Turnpike Authority, supra.

We must in the final analysis be governed by an objective assessment of the equities, not by an understandable sympathy for plaintiff’s plight and a pardonable repugnance toward defendant’s conduct. Plaintiff apparently suffered substantial injuries but she was not incapacitated or prevented by her physical or mental trauma from pursuing her legal rights. Kyle v. Green Acres at Verona, Inc., 44 N. J. 100 (1965); accord, White v. Violent Crimes Compensation Board, 76 N. J. 368 (1978). Indeed, she was fit enough to confer with an attorney and to bring a criminal proceeding against defendant following the incident. Even though defendant’s conduct was grotesque and inexcusable, there is no claim that he defrauded plaintiff or that she relied upon any misleading or deceitful misrepresentation of his in forstalling civil redress. Cf. Bowler v. Fidelity & Casualty Co. of N. Y., 53 N. J. 313, 327-329 (1969); State v. United States Steel Corp., 22 N. J. 341 (1956); Rothman v. Silber, supra, 90 N. J. Super, at 33-34.

In actuality, plaintiff initiated a divorce action against defendant. Although wrongful marital conduct would obviously be germane in those proceedings for any number of reasons, it has not been shown that plaintiff ever brought forth her damage claims for the tortious injuries she suffered. A wife’s civil claims for monetary compensation against her husband, and his contingent liability therefor, would seem a relevant circumstance affecting the parties’ financial status in the context of a matrimonial controversy. Cf. Martindell v. Martindell, 21 N. J. 341 (1956); Schiff v. Schiff, 116 N. J. Super. 546 (App. Div. 1971), eertif. den. 60 N. J. 139 (1972); also, Mey v. Mey, 79 N. J. 121 (1979); Painter v. Painter, 65 N. J. 196 (1974); Rothman v. Rothman, 65 N. J. 219 (1974). Hence, in assessing the equities in this present case from the perspective of the statute of limitations, it is not unfair to conclude that, during the pendency of the matrimonial litigation, plaintiff had given some thought to the possibility of asserting a claim against her husband as evidenced by the fact that such a claim was brought within weeks after the grant of the divorce. Since the circumstances of the marital tort and its potential for money damages were relevant in the matrimonial proceedings, the claim should not have been held in abeyance; it should, under the “single controversy” doctrine, have been presented in conjunction with that action as part of the overall dispute between the parties in order to lay at rest all their legal differences in one proceeding and avoid the prolongation and fractionalization of litigation. Cf. Falcone v. Middlesex County Med. Soc., 47 N. J. 92 (1966); Applestein v. United Board & Carton Corp., 35 N. J. 343, 356 (1961); Ajamian v. Schlanger, 14 N. J. 483, cert. den. 348 U. S. 835, 75 S. Ct. 58, 99 L. Ed. 659 (1954); also, McFadden v. Turner, 159 N. J. Super. 360, 368-372 (App. Div. 1978); Wm. Blanchard Co. v. Beach Concrete Co., Inc., 150 N. J. Super. 277, 292-294 (App. Div.), certif. den. 75 N. J. 528 (1977); Leisure Technology v. Klingbeil, 137 N. J. Super. 353, 357 (App. Div. 1975).

In the instant case, plaintiff neither filed a timely lawsuit nor was she prevented from so doing. She was mindful of her rights, as well as her wrongs, but neglected to pursue them when there was an opportunity to do so within the time allowed by law. Eor these reasons, we conclude that plaintiff’s action was barred by the statute of limitations. This obviates consideration of the issue of provocation in connection with the claim for punitive damages.

The decision of the Appellate Division is reversed and the ease remanded for entry of judgment in favor of defendant.