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Moore v. Truesdale

Decided: January 3, 1958.

CARL M. MOORE, AN INFANT, BY CARL W. MOORE, HIS FATHER, AS GUARDIAN AD LITEM, AND MARGARET MOORE AND CARL W. MOORE, PLAINTIFFS-RESPONDENTS,
v.
FRANK TRUESDALE AND THOMAS TRUESDALE, DEFENDANTS. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD OF THE STATE OF NEW JERSEY, APPELLANT



Clapp, Jayne and Schettino. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

The Unsatisfied Claim and Judgment Fund Board legislatively created by N.J.S.A. 39:6-64 requests us by the present appeal to review the legal and factual validity of an order made by the Law Division of this court on April 3, 1957 in a summary proceeding. The order directed the payment from the fund of an alleged uncollectible default judgment recovered by the infant plaintiff, Carl M. Moore, against the defendants, Frank Truesdale and Thomas Truesdale, on September 14, 1956, awarding the infant compensatory damages in the sum of $2,400 for his bodily injuries sustained in a motor vehicle mishap which occurred in this State on November 23, 1955.

Concisely stated, the Board's insistence is that neither the infant plaintiff nor any representative on his behalf complied with the mandatory requirements of the statute in that:

(a) There was a failure to give to the Fund Board timely notice of an intention to make a claim upon the Fund for the damages awarded to the infant plaintiff, if otherwise uncollectible;

(b) No notice was given to the Fund Board of the plaintiff's intention to enter the default judgment against the defendants and file a claim upon the Fund;

(c) Inadequate efforts were exerted on behalf of the plaintiff to collect the judgment, or part thereof, from one or both of the defendants.

Other information of present relevancy may be likewise summarized. The infant plaintiff whose claim is in dispute was a passenger in the automobile owned by his father and operated by his mother which came into collision with the vehicle owned by Frank and driven by Thomas Truesdale. At the time of the accident the plaintiff, Carl M. Moore, was an infant of 14 years of age whose cause of action against the defendants was prosecuted for him by his father in the representative capacity of guardian ad litem.

Incidentally, it may be appropriately explained that judgments were also recovered against the defendants by the plaintiff's parents, but they make no claim upon the Fund.

With this background of general information, the grounds of appeal should be discussed more specifically. As a basic premise in the consideration of the appellant's first point, the pertinent portion of N.J.S.A. 39:6-65 is quoted:

"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 this State on or after April 1, 1955, 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."

Inapplicable here is the recent amendment enlarging the time limitation. L. 1956, c. 200, p. 737.

The delinquency initially emphasized by the Board is that no notice was given to it, on the prescribed form or, indeed, otherwise, within 30 days after the accident, of the intention of the infant to apply for the payment of his awarded damages from the Fund. The appellant points to the legislative declaration that this stated requirement constitutes ...


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