Giacobbe v. Gassert

• Decision Date: 17 March 1959
• Docket Number: No. A--81,A--81
• Citation: 149 A.2d 214,29 N.J. 421
• Parties: Salvatore GIACOBBE, Plaintiff-Appellant, v. Frederick J. GASSERT, Jr., Director of Division of Motor Vehicles, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 421

29 N.J. 421

149 A.2d 214

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

No. A--81.

Supreme Court of New Jersey.

Argued Feb. 17, 1959.

Decided March 17, 1959.

Frank M. Lario, Camden, argued the cause for appellant (Joseph Pierce Lodge, Camden, on the brief).

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

The opinion of the court was delivered by

HEHER, J.

The case is here by our certification of a judgment of the Appellate Division of the Superior Court, 51 N.J.Super. 111, 143 A.2d 581 (App.Div.1958), which reversed a judgment of the Law Division of the court for the plaintiff in an action for the satisfaction of damages for bodily injuries arising out of another's use of a motor vehicle, according to L.1952, c. 174, as amended N.J.S.A. 39:6--61 et seq., providing an 'unsatisfied claim and judgment' fund for the purpose. Plaintiff suffered severe injuries on June 11, 1955 at the hands of a 'hit-and-run' driver of a motor vehicle while walking on a highway in Lindenwold, New Jersey. The driver has not been identified.

The jury returned a verdict of $7,500. The judge resolved in plaintiff's favor an issue as to residence in New Jersey qualifying him for recourse to the fund, N.J.S.A. 39:6--62; and he also found as a fact the giving of timely notice of the accident and of plaintiff's intention to make a claim on the fund for such damages if otherwise uncollectible, made a condition precedent to a demand for payment from the fund by N.J.S.A. 39:6--65.

The Appellate Division affirmed the finding of residence, as properly determinable by the judge on conflicting evidence; but on the issue of timely notice the holding was that on July 21, 1955, 'the date plaintiff was discharged from the hospital following his initial hospitalization, he was not physically incapable within the meaning of the act,' and '(a)s the statutory period began to run from that date the notice which it is now agreed was received December 27, 1955 was out of time whether the applicable period be considered to be 30 days or 90 days,' as provided by the amendment effected by L.1956, c. 200, § 1, N.J.S.A. 39:6--65.

No question is made here as to plaintiff's qualification by residence to invoke the statutory relief. The insistence is that the remedy has been lost by noncompliance with the precondition of notice of the accident and the intention to resort to the fund for damages otherwise uncollectible given within 90 days after the accident, L.1956, c. 200; L.1958, c. 99, N.J.S.A. 39:6--65, provided that the person so entitled 'may, in lieu of giving said notice within said time, make proof to the court on the hearing of the application for the payment of a judgment (a) that he was physically incapable of giving said notice within said period and that he gave said notice within 90 days after he became physically capable to do so or in the event he did not become so capable, that a notice was given on his behalf within a reasonable period'; and then comes a provision, (b), for a 15-day notice to the board of the insurer's 'disclaimer' on a policy of liability insurance held by the alleged tortfeasor. Subdivision (b) was introduced by L.1958, c. 99; subdivision (a) is in the same terms as the earlier act, L.1955, c. 1, save that the period for the giving of the notice was extended from 30 to 90 days. In 'hit-and-run' cases, L.1952, c. 174, § 18; L.1955, c. 1; L.1956, c. 150; L.1958, c. 99, N.J.S.A. 39:6--78, compliance with the foregoing provision for notice is also made a condition prerequisite.

The plaintiff suffered comminuted and compound fractures of both legs: the right leg had three breaks and the left leg two--'fractures of both his tibia and fibula, large and small bones of the lower leg'; and there were head injuries and concussion and shock; hospitalization continued until July 21, 1955, and he was thereafter confined to his boarding house, his legs in cast and restricted to the use of a wheel chair, until February 2, 1956, when he was returned to the hospital for a proposed bone-grafting operation to bring about a union that had not fully materialized according to X-rays; when the cast was removed, the operation was found to be unnecessary; the cast was restored, and he was discharged, after confinement lasting 13 days; thereafter he had outside treatments, and 'then he was ambulated, gotten up on crutches,' the while...