Szczesny v. Vasquez

• Decision Date: 02 January 1962
• Docket Number: No. A--349,A--349
• Parties: Joseph SZCZESNY and Stella Szczesny, Plaintiffs-Appellants. v. Anna VASQUEZ, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 347

71 N.J.Super. 347

177 A.2d 47

Joseph SZCZESNY and Stella Szczesny, Plaintiffs-Appellants. v. Anna VASQUEZ, Defendant-Respondent.

No. A--349.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 23, 1961.

Decided Jan. 2, 1962.

David I. Stepacoff, Perth Amboy, for appellants (Patten & Pryga, Rahway, attorneys; David I. Stepacoff, Perth Amboy, of counsel).

Morgan R. Seiffert, New Brunswick, for defendant-respondent (Seiffert & Frisch, New Brunswick, attorneys; Morgan R. Seiffert and Arthur S. A. Pataky, New Brunswick, on the brief).

Before Judges GOLDMANN, FOLEY and LEWIS.

The opinion of the court was delivered by

LEWIS, J.A.D.

Plaintiffs' single contention on appeal is that their proof of mailing notices of intention to the Unsatisfied Claim and Judgment Fund Board raised a presumption of receipt which was not rebutted by the Board and, for that reason, the decision of the trial court denying their application for payment of judgments out of the statutory Fund should be reversed. The essential facts developed at the hearing must be assayed from the record preliminary to a consideration of the legal issues.

On July 31, 1957 plaintiffs were involved in an automobile accident with the defendant. Their separate tort actions were consolidated for trial by jury, which resulted in verdicts and judgments, $3,500 in favor of plaintiff Joseph Szczesny and $5,000 in favor of plaintiff Stella Szczesny, each against defendant Anna Vasquez. The judgments were entered on January 27, 1960. The debtor was not insured at the time of the accident. Plaintiffs' writ of execution was returned unsatisfied, and supplemental discovery proceedings did not disclose any available assets. In February 1960 plaintiffs received notice of defendant's bankruptcy proceedings. The judgments were uncollectible.

It is alleged that on August 20, 1957 plaintiffs, through their attorney, mailed to the Unsatisfied Claim and Judgment Fund Board notices of their intention to make claim against the Fund pursuant to N.J.S.A. 39:6--65. Trial counsel stipulated that the contents of the filed affidavits of W. Lewis Bambrick, manager of the Board's office, and Kay Urkin, senior clerk in the Security Responsibility Section of the Division of Motor Vehicles, should be considered the same as testimony on their behalf in the proceedings.

The sworn statement of Bambrick recites his responsibility relative to the office procedure for the processing of the statutory notices of intention to claim. He averred that notices on behalf of Stella Szczesny and Joseph Szczesny were received in his office on March 25, 1958 and were classified, at that time, as ineligible claims because they were received more than 90 days after the accident. He concluded: 'A careful inspection of the records of this office shows no notices of intention filed by, or on behalf of, Stella Szczesny and Joseph Szczesny prior to March 25, 1958, and particularly for an accident, of July 31, 1957.'

Urkin asserted in her affidavit that she was employed exclusively to handle the Fund claim notices which are given to her as they are received. They are immediately dated, stamped and recorded in a log book under the date of the accident, the names of the owners, and the vehicle operators involved in the accident. The forms are then hand-delivered by her to the office of the Unsatisfied Claim and Judgment Fund Board where they are distributed to investigators for further handling. Her affidavit further alleged that she received and processed claim notices of Stella Szczesny and Joseph Szczesny on March 25, 1958, which had the word 'copy' typed at the top. She further said: 'I checked the log book when I processed these notices and found that these were the first notices received from Stella Szczesny and Joseph Szczesny for the accident of July 31, 1957.'

Plaintiffs' case is predicated upon the testimony of the lawyer then entrusted with their litigation, and that of his secretary. In substance, the attorney maintained that within three weeks after the clients' accident his office sent, by United States mail, notices of intention to make claim against the Fund. The clients were in his office on August 20, 1957, at which time they signed in blank the appropriate forms of claim, a retainer agreement, and authorizations to obtain the hospital and police records. These papers were turned over to his secretary, who was familiar with preparing such forms, together with his memorandum of necessary data for their completion. That same afternoon, the finished notices were placed on his desk along with a number of letters she had typed. He signed the letters and gave them, with the notices, back to his secretary for mailing. He testified that the notices were not accompanied by a transmittal letter from his office. On or about March 14, 1958, on reviewing the files, he observed the absence of any acknowledgment of the claims. He forthwith telephoned to Mr. Bambrick at the board's headquarters, confirmed his inquiry by letter and, when in Trenton shortly thereafter, checked with Mr. Bambrick and a staff assistant the records of the agency to ascertain the status of the claims alleged to have been mailed to the Board on August 20. A search of the files revealed no evidence of receipt, nor the existence of such claims. At the request of Mr. Bambrick, copies of the notices were sent to him on March 24, and receipt thereof acknowledged April 10 stating that 'inasmuch as the notice was not filed within 90 days after the accident, no further action by the fund was indicated.' The attorney further stated that he kept the Board advised as to the status of the litigation with respect to the court calendar. He admitted that the doctor's report had not accompanied the notices when mailed and, in fact, had not been forwarded to the Board until April 7, 1960--some considerable time after trial and the entry of judgments.

The secretary verified the testimony of her employer with respect to instructions, the preparation of the notices and the routine office-mailing procedure on August 20. In her words, after he 'signed all his mail, he gave me everything, and I folded the mail, put it in the envelope, weighed it, put the stamps on it, and on my way home from work I go past the Post Office and I dropped it in the box.' She refreshed her memory by reference to a daily 'calendar pad' on which she made notations. The pad contained sheets, 3 3 , with writing surface on two sides for each day, and was admitted in evidence without objection. On the August 20 pages, there were brief shorthand notes relating to 'Szczesny' which she transcribed to mean 'Sent Szczesny notice to Trenton.' When interrogated, under cross-examination, as to whether it was possible that this notation was a reminder for her in the future, her answer was: 'It could have been, but from the way I read my notes it says 'sent. " When asked if her testimony was really based entirely on said notation, she replied: 'That notation, as well as the copy in the file.'

The provision of the Unsatisfied Claim and Judgment Fund Act that notice shall be given within a stated time after the accident, as a condition precedent to the right thereafter to apply for payment from the Fund, is mandatory. Schlenger v. Conti, 47 N.J.Super. 566, 570, 136 A.2d 440 (App.Div.1957). The original act, known as the 'Unsatisfied Claim and Judgment Fund Law,' was adopted in 1952, and section 5 thereof (N.J.S.A. 39:6--65) has been engrafted with several amendments. L.1952, c. 174, p. 574, § 5, as amended L.1955, c. 1, p. 15, § 4; L.1956, c. 200, p. 737, § 1; L.1958, c. 99, p. 556, § 2. We are presently concerned with N.J.S.A. 39:6--65, as amended in 1956, which was in effect at the time of the accident. It provides that a qualified claimant:

'* * * Shall, within 90 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; * * * 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. Said notice shall 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) itemized estimates of an automobile repairman or itemized bill, of the cost of repairs if the damage it to an automobile, (c) such information as is known to him with regard to liability insurance in effect with respect to the motor vehicles involved in the accident and (d) a copy of the complaint if an action has theretofore been brought for the enforcement of such claim. Such person shall * * * notify the board of any action thereafter instituted for the enforcement of such claim within 15 days after the institution thereof and such notice shall be accompanied by a copy of the complaint.' (Emphasis supplied.)

The mandate is to Give notice to the Board and to otherwise comply with the particular section of the act. Thus, the present case is distinguishable from Delaware ware Township v. Neeld, 52 N.J.Super. 63, 144 A.2d 801 (App.Div.1958), which dealt with a statute authorizing a review of complaints 'made within' ten days after the Director of the Division of Taxation had promulgated tables of equalization values. The intendment of the legislation, there under review, was to fix a time for the completion of an appeal. The word 'made' was held to mean 'filed,' the rationale of the decision being in harmony with the statutory objective.

By force of statute or by agreement, a required notice may be effectively given if properly mailed, regardless of its...