Giles v. Gassert, s. A--42

• Decision Date: 03 December 1956
• Docket Number: Nos. A--42,A--43,s. A--42
• Parties: Floyd R. GILES, Plaintiff-Respondent, v. Frederick J. GASSERT, Jr., Director of the Division of Motor Vehicles in the Department of Law and Public Safety of the State of New Jersey and the Unsatisfied Claim and Judgment Fund Board, Defendants-Appellants. Viola MURRAY, Administratrix ad prosequendum of the Estate of John Francis Murray, deceased, Plaintiff-Respondent, v. Frederick J. GASSERT, Jr., Director of the Division of Motor Vehicles in the Department of Law and Public Safety of the State of New Jersey, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 22

23 N.J. 22

127 A.2d 161

Floyd R. GILES, Plaintiff-Respondent, v. Frederick J. GASSERT, Jr., Director of the Division of Motor

Vehicles in the Department of Law and Public Safety of the

State of New Jersey and the Unsatisfied Claim and Judgment

Fund Board, Defendants-Appellants.

Viola MURRAY, Administratrix ad prosequendum of the Estate

of John Francis Murray, deceased, Plaintiff-Respondent, v. Frederick J. GASSERT, Jr., Director of the Division of Motor

Vehicles in the Department of Law and Public

Safety of the State of New Jersey,

Defendant-Appellant.

Nos. A--42, A--43.

Supreme Court of New Jersey.

Argued Oct. 29 and Nov. 5, 1956.

Decided Dec. 3, 1956.

Robert G. Howell, Newark, argued the cause for appellants in A--42.

Edward S. Miller, Millville, argued the cause for respondent (Gant & Miller, Millville, attorneys).

John J. Gaffey, Newark, argued the cause for appellant in A--43 (Minard, Cooper, Gaffey & Webb, Newark, attorney).

James T. Owens, Newark, argued the cause for respondent.

The opinion of the court was delivered by

HEHER, J.

The issues raised in these proceedings concern the meaning of section 18 of the 'Unsatisfied Claim and Judgment Fund Law,' approved May 10, 1952, effective April 1, 1955, L.1952, c. 174, N.J.S.A. 39:6--61, 78, as amended by L.1955, c. 1, approved March 30, 1955, related to section 5 of the act, as amended by L.1955, c. 1, N.J.S.A. 39:6--65, regulating the procedure in the so-called 'hit-and-run' cases within the coverage of the law.

The act provides for the establishment of 'an unsatisfied claim and judgment fund for the payment of damages for injury to or death of certain persons and for damages to property arising out of the ownership, maintenance or use of motor vehicles in this State in certain cases'; and it is ordained by section 18 that 'When the death of, or personal injury to, and person' arises out of the ownership, maintenance or use of a motor vehicle in this State on or after April 1, 1955, 'but the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained or it is established that the motor vehicle was at the time' the accident occurred 'in the possession of some person other than the owner without the owner's consent and that the identity of such person cannot be ascertained, any qualified person who would have a cause of action against the operator or owner or both in respect to such death or personal injury for a sum in excess of $200 exclusive of interest and costs, may, upon notice' to the Director of the Division of Motor Vehicles and the Unsatisfied Claim and Judgment Fund Board created by the act, apply to the Superior Court for an order 'permitting him to bring an action therefor against the director in such court, and the court may proceed upon such application, in a summary manner, and may make an order permitting the applicant to bring such an action against the director when the court is satisfied * * *,' Interalia, that--

(1) 'The applicant has complied with the requirements of section 5' of the act, and is otherwise qualified as therein provided, in matters not now pertinent;

(2) 'The applicant has a cause of action against the operator or owner of such motor vehicle or against the operator who was operating the motor vehicle without the consent of the owner * * *'; and (3) 'All reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator thereof and either that the identity of the motor vehicle and the owner and operator thereof cannot be established, or that the identity of the operator, who was operating the motor vehicle without the owner's consent, cannot be established.'

Section 5, as thus amended, N.J.S.A. 39:6--65, provides that 'Any qualified person, or the personal representative of such person, who suffers damages resulting from bodily injury or death or damage to property arising out of' the ownership, maintenance or use of a motor vehicle in the particular circumstances, 'and whose damages may be satisfied in whole or in part from the fund, shall, within 30 days after the accident, as a condition precedent to the right thereafter to apply for payment from the fund, give notice to the board, on a form prescribed by it, of his intention to make a claim thereon for such damages if otherwise uncollectible and otherwise comply with the provisions of this section; provided, any such qualified person 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 that he was physically incapable of giving said notice within said period and that he gave said notice within 30 days after he became physically capable to do so or in the event that he did not become so capable, that a notice was given on his behalf within a reasonable period'; and 'In said notice he shall specify the time and place of the accident, identify the operators and vehicles involved therein and such witnesses to said accident, as are then known to him and describe the injuries then known to him and the damage to property sustained.'

It is directed that the notice be accompanied by (a) a certification by a physician of the injuries sustained 'so far as they can then be anticipated and of the treatment afforded by him'; (b) an itemization of the cost of repairs, if the damage is to an automobile; (c) the known liability insurance coverage of the motor vehicles involved in the accident; and (d) a copy of the complaint if an action has been brought to enforce the claim. And there is further provision for notice to the board, within 15 days, of any action 'thereafter instituted for the enforcement' of the claim, accompanied by a copy of the complaint.

I.

In A-42, the plaintiff Giles suffered personal injuries on May 29, 1955, when the automobile of his landlady, which he was operating while pleasure bent, 'went out of control' on Main Road in Vineland, New Jersey, near the intersection of Russell Avenue, and collided with a pole, as a result, he testified, of the erratic movement in the opposite direction of an automobile which continued on, leaving Giles unaware of the identity of the operator of the vehicle and the Indicia that would lead to its identification, information that was not forthcoming by later inquiry. Alone at the time, he explained that he 'remember(ed) the accident' only 'in a slight way up until the thing happened,' and after that he 'was more or less, well, unconscious and only at times knew things'; he found it 'hard' to say 'exactly how it happened'; he 'saw this car coming at me and the thing went past and he cleared me and I spun around and hit a pole.' But later on he said there was 'an actual collision,' an 'impact, slightly between' the vehicles, and he 'spun around'; 'That's when I hit the pole; in fact, I hit two; I don't know if it was one or four; that I don't know; I know I hit one of them'. His car skidded 66 feet, hit a telephone pole on the west side of the highway, and then skidded 52 feet across the road and struck a telephone pole and a mail box on the east side. Although it was still light, he could not identify the other car as to make, color or by other description or circumstance, whether occupied by one or more or driven by man or woman. He said the unidentified car veered into his 'lane of traffic,' but this was purely deductive and not a thing observed, he agreed, and at a later hearing he reiterated that the other car was two feet over the center line of the road, while his own was four feet from center, a condition that does not explain the claimed collision.

Yet there was evidence of damage to the left front fender and side of plaintiff's car, a dent in the left front fender two inches deep, affirmed as significant in that it is fairly deducible from the evidence that the damage ensuing from the car's contact with the polies was all to the rear and right front of the vehicle. Also, there was testimony from another motorist and his wife, the witnesses Delancey, that not far away, at what is said to have been a fairly related time and place, he was forced to 'swerve off the road' to avoid collision with a 1941 black Plymouth car 'coming right head on to me,' although it is urged that there is a discrepancy in time fatal to the relevance of this piece of evidence. And it is said that Giles did not make known to the police officer who came to the scene that another automobile had 'collided with his,' or request the police department, then or later, 'to locate this car.' But the officer, Rudemann, admitted that Giles did tell him, immediately on his arrival, that 'a car came over on his side of the road'; and he, the officer, added that 'There was no evidence of another car being in the accident,' and he 'didn't look for that other car,' nor did he investigate to determine whether Giles' 'story was true or false.' He was at a loss to explain the accident. He continued: 'The telephone pole was damaged some. I don't know how the car got there in that position to make the imprint on the car and then cross the road. I don't know. I can't figure it out to this day. I don't know how the impresion came on the car. I can't figure that one out.'

Notice of an intention to make claim upon the statutorily-created Claim and Judgment Fund for the damages thus sustained was not given to the Board until 76 days after the mishap; and the delay is attributed to Giles' hospitalization and sedation attending the treatment of a 'fracture, dislocation of the fifth cervical spine,' the lower part of the neck, and a 'fracture of the eleventh thoractic,' the lower part of the back, requiring the use of a traction collar and weights until his hospital discharge on the ensuing July 20, and a collar to hold his head erect and rigid for three or four months thereafter. The X-rays taken upon his admission to the hospital did not reveal these injuries; and he was...