The plaintiff obtained judgment by consent of the defendant as a result of a claim based on negligence and arising out of an automobile accident that occurred on June 5, 1955. On the day the action was to go to trial, the defendant consented to judgment in the amount of $5,500, without costs. The plaintiff's decedent was killed in the accident and the defendant Rodriquez was uninsured and has no assets with which to pay the judgment. The motor vehicle operated by the decedent was not insured at the time of the accident.
Necessary proofs covering the above facts have been established and filed with the court.
The plaintiff now seeks to have his judgment satisfied out of the New Jersey Unsatisfied Claim and Judgment Fund, N.J.S.A. 39:6-69 et seq.
The Fund opposes payment of the judgment because of the provision of N.J.S.A. 39:6-70 which provides in part as follows:
"The court shall proceed upon such application, in a summary manner, and, upon the hearing thereof, the applicant shall be required to show
(a) He is not a person covered with respect to such injury or death by any workmen's compensation law, or the personal representative of such a person,
(b) He is not a spouse, parent or child of the judgment debtor, or the personal representative of such spouse, parent or child,
(c) He was not at the time of the accident, a guest occupant riding in a motor vehicle owned or operated by the judgment debtor and is not the personal representative of such a guest occupant,
(d) He was not at the time of the accident, operating or riding in an uninsured motor vehicle owned by him or his spouse, parent or child, and was not operating a motor vehicle in violation of an order of suspension or revocation,
(e) He has complied with all of the requirements of section five,
(f) The judgment debtor at the time of the accident was not insured under a policy of automobile liability insurance under the terms of which the insurer is liable to pay in whole or in part the amount of the judgment,"
The plaintiff contends first, that subsection (f), supra , does not preclude recovery because the statute does not specifically exclude personal representatives under the subsection in question. Secondly, the plaintiff contends that the statute in part is invalid because it "prohibits recovery by the operator of, or rider in, an uninsured motor vehicle owned by him, his spouse, parent or child, or operated by him or by a person operating a motor vehicle by virtue of an order of suspension or revocation * * *." It is the plaintiff's contention that N.J.S.A. 39:6-70(d) (and possibly 39:6-70(a), (b) and (c)) violates the following constitutional provisions:
The Constitution of the State of New Jersey:
Article I, paragraph 5 -- "No person shall * * * be discriminated against in the exercise of any civil or military right. * * *"
Article IV, Section VII, paragraph 7 -- "No general law shall embrace any provision of a private, ...