Giacobbe v. Gassert

• Decision Date: 01 July 1958
• Docket Number: No. A--122,A--122
• Citation: 51 N.J.Super. 111,143 A.2d 581
• Parties: Salvatore GIACOBBE, Plaintiff-Respondent, v. Frederick J. GASSERT, Jr., Director of Division of Motor Vehicles, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 111

51 N.J.Super. 111

143 A.2d 581

Salvatore GIACOBBE, Plaintiff-Respondent, v. Frederick J. GASSERT, Jr., Director of Division of Motor Vehicles, Defendant-Appellant.

No. A--122.

Superior Court of New Jersey Appellate Division.

Argued May 5, 1958.

Decided July 1, 1958.

William G. Bischoff, Camden, argued the cause for defendant-appellant (Carroll, Taylor & Bischoff, Camden, attorneys).

Frank M. Lario, Camden, argued the cause for plaintiff-respondent.

Before Judges PRICE, HANEMAN and SCHETTINO.

The opinion of the court was delivered by

PRICE, S.J.A.D.

By this appeal defendant challenges a judgment entered in favor of plaintiff against defendant in the Superior Court, Law Division, pursuant to the Unsatisfied Claim and Judgment Fund Law, L.1952, c. 174, p. 570, as amended N.J.S.A. 39:6--61 et seq. The contention is made that plaintiff was not a resident of New Jersey at the time of the accident and therefore not a qualified person within the meaning of the act and that he failed to file a 'Notice Of Intention To Make Claim' within the statutory period.

On June 11, 1955 plaintiff was the victim of a 'hit-and-run' driver. The accident occurred at night while plaintiff was walking on United States Avenue in Lindenwold, sometimes referred to in the record as Watsontown, New Jersey. The driver was not apprehended.

As a result of this accident plaintiff suffered comminuted and compound fractures of the tibia and fibula of both legs, as well as shock and a laceration of the scalp.

Plaintiff alleged that he had boarded at the home of Mr. and Mrs. Nicholas Roselli in Lindenwold, N.J. since June 1951. He asserted that prior to that time he had resided in Philadelphia, Pennsylvania, with his parents. He was employed as a laborer by a Philadelphia corporation.

Immediately after the accident plaintiff was accompanied to Our Lady of Lourdes Hospital in Camden by Mrs. Roselli. She declined to accept financial responsibility for him. The hospital records indicate his address as 1644 S. Chadwick Street, Philadelphia.

Plaintiff was discharged from the hospital July 21, 1955. He then had casts on both legs and was confined to a wheelchair. Upon leaving the hospital he returned to the Roselli residence where he was dependent on the Rosellis for his complete care. Sometime in the fall of 1955 Mrs. Roselli learned of the existence of the Unsatisfied Claim and Judgment Fund.

She wrote a letter which was received by the Fund Board November 16, 1955 in which she stated that the plaintiff was a resident of Philadelphia. Her letter was as follows 'Can you please help me on this problem.

'I am taking care of a man who was hit in front of my home June 11, 1955. He was in the hospital for 6 weeks and now with me, since thens.

'He was a victim of a hit and run driver. Has both legs broken and still in a cask up to his hips. His resident is Phila, but was at our home more than in Phila. The Lindenwold Police has his case. They take him 3 or 4 times a month to the hospital with the Aublance. He is helpless. From bed to a wheel chair.

'Can you please tell me if he can collect any funds for this. He has a big hospital bill and I am taking care of him. His Mom & Dad are 76 and 76 and are unable to care for him.

'The hospital

Our Lady of Lourdes Camden

Salvatore Giacobbe Age 35

1644 S. Chadwick St. Phila.

'Staying at

Mrs. Nicholas Roselli 315 U.S. Ave.

Watsontown, N.J.

P. O. Berlin, N.J.

'Any information will be appreciated. Thank You.

'Mrs. Roselli

'Police Officer

Chief Frank O'Keefe

Lindenwold, N.J.

'P.S. Just found out about this.'

Mrs. Roselli later obtained an attorney for plaintiff. Based on the information given to him the attorney wrote a letter to the Fund Board on December 6, 1955, which it received December 7, 1955. This letter also stated that plaintiff was a Philadelphia resident at the time of the accident. The letter was as follows:

'There has been handed over to me by Nicholas Roselli of Watsontown, N.J. a letter addressed by the Manager of Unsatisfied Claim and Judgment Fund Board, Mr. W. Lewis Bambrick, to him, concerning an accident which occurred to Salvatore Giacobbe on June 11th, 1955. By reason of a short illness, I have been unable to attend to the matter until today.

'Mr. Bambrick's letter of November 16th refers to Mr. Giacobbe's accident which was evidently a hit and run accident and to date the Police Authorities have been unable to locate the culprit. The accident occurred on June 11th, 1955 in the evening and Mr. Salvatore Giacobbe who presently resides at 315 U.S. Avenue, Watsontown P. O. Berlin, N.J. was injured in Lindenwold and taken by the Police of that Municipality to Our Lady of Lourdes Hospital where he was bedridden for a period of over five months. Both legs are still in a cast and every four or five weeks he is taken to the Hospital for change of cast.

'At the time of the accident, Mr. Giacobbe was a resident of Philadelphia where he was the sole support, other than a small pension, of his aged parents, who are approximately 76 years old.

'A set of forms have been sent to Mr. Giacobbe and he was also advised to seek Legal advice. Will you please inform me whether or not he has filed the forms with the Board? If not, will you kindly furnish me with a set and I shall personally call at his home and assist him in the filing of same. I feel that there is a possibility that he may be entitled to benefits and should like the opportunity of processing his claim.

'Awaiting the courtesy of an early reply, I remain.'

Prior to the writing of this letter the attorney had no personal contact with plaintiff. Under date of December 15, 1955 the attorney again addressed a letter to the Fund Board stating that his assertion of the residence of plaintiff as Philadelphia, Pennsylvania was a gross error. The letter was received by the fund board December 27, 1955. A copy of this letter follows:

'My letter of December 6th concerning the above matter was grossly in error, particularly in reference to residence of Salvatore Giacobbe, who, to this writing, I have never seen. I have only been discussing this case with him through an intermediary who is assisting in taking care of him. He is still incapacitated, being bedridden and in a wheel chair.

'My impression was brought about by reason of the difficulty in transmitting messages to and from Mr. Giacobbe, as heretofore indicated.

'I have ascertained that Mr. Giacobbe is a resident of Lindenwold, N.J. and has been for some considerable time preceding the accident.

'I enclose a report which I have completed for him with the information transmitted as above described and I trust that this will assist you in processing this claim. I further advise that I am in the process of obtaining the names of the medical authorities who are attending him so that the physician's certificate can be completed and filed. In the meantime, I enclose, in duplicate, Physician's and Dentist's Certificate with the backer completed by Salvatore Giacobbe.

'I trust that this meets with your approval.'

Plaintiff was required to re-enter the hospital February 2, 1956 for a possible bone graft operation on his left leg. Upon examination it was found that union had occurred at the site of the fracture so that surgery was not necessary. Plaintiff was discharged from the hospital February 14, 1956.

Plaintiff's claim was assigned to the General Adjustment Bureau and, under date of February 8, 1956, plaintiff's attorney mailed the required forms and the 'Notice of Intention to Make Claim' to that bureau with an enclosing letter. The notice of intention to make claim was addressed to 'Unsatisfied Claim and Judgment Fund Board 222 West State Street Trenton 7, New Jersey,' and was received February 9, 1956. The letter of plaintiff's attorney enclosing same stated that the notice of intention form which he was enclosing was the 'second Form 201 which I have filed.'

The record before the trial court was barren of proof of the actual prior filing of the required statutory notice of intention save for (a) the reference to the same in the aforesaid December 15, 1955 letter, and (b) the reference in the February 8, 1956 letter to the effect that the form enclosed was the second one the attorney had filed. However, on this appeal counsel have stipulated that a properly executed notice of intention had been received by the fund board December 27, 1955. The stipulation is dated March 17, 1958 and is as follows:

Stipulation.

'It is stipulated between the attorneys for the respective parties that after the completion of the trial in the above matter and after brief for the appellant was prepared and a copy furnished the Unsatisfied Claim and Judgment Fund Board that said Board informed William G. Bischoff that they had received a properly executed notice of intention on December 27, 1955.

'It is agreed that the appellant by said stipulation does not admit that said notice was timely.

'Carroll, Taylor & Bischoff,

Attorneys for and of Counsel with Defendant-Appellant.

'By William G. Bischoff,

'A member of the Firm.

'Frank M. Lario,

'Attorney for and of Counsel with Plaintiff-Respondent.

'Dated: March 1m, 1958.'

'Dated: March 17, 1958.'

On November 30, 1956, the return day of plaintiff's notice of application for permission to institute suit, the trial court signed an order permitting plaintiff to institute suit sgainst the Director of Motor Vehicles and the Unsatisfied Claim and Judgment Fund Board. The order stated that the notice of intention to file claim was given on September 2, 1956. On argument before us plaintiff's attorney asserts that due to a stenographic error the date of '2/9/56' had been transcribed as '9/2/56' and that the proper date should be February 9, 1956, apparently the date notice was received by the Fund Board.

At the trial defendant moved for a dismissal of the action for failure of plaintiff to comply with the statutory requirements of residence and notice. The...