Clapp, Stanton and Francis. The opinion of the court was delivered by Stanton, J.s.c. (temporarily assigned).
This is an appeal by the Unsatisfied Claim and Judgment Fund Board from an order of the Law Division, entered in a summary proceeding pursuant to N.J.S.A. 39:6-69 to 71, directing it to pay the plaintiff James Casey the sum of $4,800 upon his unsatisfied judgment against the defendant.
The board challenges the order on the sole ground that the plaintiff failed to show, as required by N.J.S.A. 39:6-70(c), that "he was not at the time of the accident, a guest occupant riding in a motor vehicle owned or operated by the judgment debtor."
At the trial of the undefended negligence action the plaintiff, according to the transcript of his testimony received in evidence below, said he was riding in the defendant's automobile
at his express invitation. However, at the hearing in the proceeding against the board he testified in effect that he was in the car as a licensee; and the defendant, called as a witness by the plaintiff, testified that he extended no express invitation to the plaintiff and other friends to go for a ride in his car -- that they were in it at the suggestion of one of them, other than the plaintiff, but that he acquiesced in it; thereafter they started on a pleasure ride and at the time of the accident the defendant was taking them, upon his own suggestion, to see the place where he had formerly resided. No consideration passed from the plaintiff to the defendant for the ride.
The Unsatisfied Claim and Judgment Fund Law, N.J.S.A. 39:6-61 et seq. , was enacted in 1952, but it applies only to damages sustained after April 1, 1955. There is no reported case in this State which considered the phrase "guest occupant" as used in the statute, or as far as we are aware in any other connection.
The only question here is whether the plaintiff proved that he was not a guest occupant in the defendant's car; and the meaning of that phrase is the crux of it.
It would appear to have been the plaintiff's contention below that he was merely a licensee in the car and as such was not a guest occupant under the statute. The board's position is that the proofs warranted the conclusion that the plaintiff was an express invitee; and even conceding full credit to his and the defendant's testimony at the hearing against the board, he was an invitee by implication; it contends that at the least he was a licensee; and in any event that the phrase guest occupant is broad enough to include him, irrespective of which of the above classifications he falls into.
In this State, as is well known, the operator of an automobile owes to an invitee occupant the duty of reasonable care, while to a licensee occupant he is required only to refrain from the perpetration of acts wantonly or willfully injurious. Cf. Lippman v. Ostrum , 22 N.J. 14, 21 (1956), and cases therein cited. The general rule outside New Jersey
is that an invitee and a guest at sufferance, who is an occupant of an automobile with the acquiescence or permission of the owner or operator, or as we say a licensee, are both owed the duty of reasonable care, except in 27 states which have adopted guest statutes, which generally limit the liability to such an occupant to gross negligence or willful and wanton misconduct. As Professor Prosser said in his Law of Torts (2 d ed. 1955), at page 451:
"A few jurisdictions, at common law, have proceeded upon a supposed analogy to the cases of gratuitous bailment of chattels, and have held that the driver is liable to the guest only for 'gross' or aggravated negligence. In more than half of the states the matter is now governed by automobile guest statutes, which have been enacted under the impetus of a feeling that the gratuitous guest is entitled to no claim against his host for the ordinary mishaps of modern traffic, and under the impetus of the claim of liability insurance companies that frequent collusion between host and guest has increased insurance rates. These statutes, which have been held constitutional, vary greatly in their language, and provide in general that there shall be no liability to an automobile guest who ...