For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Proctor, J.
Plaintiff, the administrator ad prosequendum of the estate of Robert Ottman Betz, instituted an action against the Director of the Division of Motor Vehicles pursuant to N.J.S.A. 39:6-78 of the Unsatisfied Claim and Judgment Fund Law. L. 1952, c. 174, p. 570, as amended, N.J.S.A. 39:6-61 to 91. The complaint alleged that on July 16, 1956 Betz was killed while driving an automobile on Route No. 15 in Sparta Township, Sussex County, New Jersey, when he was negligently forced off the road by a motor vehicle, the identity of which and that of its owner and operator were unknown. The complaint further stated that at the time of the accident the decedent was a resident of the State of New York, and that his personal representative, the plaintiff, is also a resident of that state. There was no allegation that decedent was an owner of a motor vehicle registered in New Jersey.
The Director moved to dismiss the complaint for failure to state a cause of action on the ground that the decedent was not a "qualified person" within the purview of N.J.S.A. 39:6-62. The trial court granted the motion, holding that since the state of decedent's residence, New York, did not afford New Jersey residents recourse of a substantially similar character to that provided by the New Jersey Fund law, plaintiff's decedent was not a "qualified person"; therefore, plaintiff could not maintain an action against the Director.
Plaintiff's appeal has been certified for review by this court on its own motion.
At the oral argument the court called to counsels' attention that New York had, on April 15, 1958, enacted an amendment to the New York Motor Vehicle Financial Security Act, L. 1956, c. 655, Vehicle and Traffic Law, McKinney's Consol. Laws, c. 71, § 93 et seq. Subsequent to the oral argument counsel for both parties submitted supplemental briefs dealing with the effect of this amendment.
The plaintiff contends that the victim of a "hit-and-run" accident need not be a "qualified person," as defined in N.J.S.A. 39:6-62, in order to maintain an action against the Director pursuant to N.J.S.A. 39:6-78; that the language of this section "When the death of * * * any person arises out of [a hit and run accident]" should be construed to mean "that any victim, regardless of the qualifications set forth in the definition of terms in the statute (R.S. 39:6-62), should have the right to the cause of action created by the statute." Plaintiff further contends that the decedent was a "qualified person" within the definition of N.J.S.A. 39:6-62 since the State of New York affords a remedy substantially similar to that provided in New Jersey.
The language of the relevant provisions of the statute effectively refutes the plaintiff's contention that "any person" who is the victim of a "hit-and-run" accident may maintain an action against the Director. N.J.S.A. 39:6-78 provides inter alia:
"When the death of * * * any person arises out of the ownership, maintenance or use of a motor vehicle in this State * * * but the identity of the motor vehicle and the operator * * * thereof 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, * * * may bring an action therefor against the director * * * but no judgment against the director shall be entered * * * unless the court is satisfied, upon * * * hearing the action, that --
(a) The claimant has complied with * * * requirements of section 5. [ N.J.S.A. 39:6-65] * * *." (Italics supplied.)
Section 5 (N.J.S.A. 39:6-65) requires that a notice of intention to make a claim against the Fund be filed within 90 days after the accident. The section provides " Any qualified person, or the personal representative of such person " shall file such notice. (Italics supplied.) The term qualified person is defined by N.J.S.A. 39:6-62 as "a resident of this State or the owner of a motor vehicle registered in this State or a resident of another state, territory, or Federal district of the United States or Province of the Dominion of Canada, or foreign country, in which recourse is afforded, to residents of this State, of substantially similar character to that provided for by this act."
While N.J.S.A. 39:6-78 employs the phrase "any person" in describing the circumstances which would give rise to a cause of action against the Director, that phrase cannot be construed without reference to the remainder of the section. The section when read in its entirety leaves no doubt that the phrase "any person" is restricted in its meaning by the subsequent use of the phrase "any qualified person." The Legislature did not provide that "any person" shall have recourse to the Fund. The pertinent provisions of the statute clearly indicate that only a "qualified person" may seek recovery from the Fund. We cannot assume that the Legislature attached no significance to the word "qualified" when it specifically provided that relief under N.J.S.A. 39:6-78 should be available to any "qualified person who would have a cause of action." The construction urged by the plaintiff would contravene the express intent of the Legislature that only a "qualified person" ...