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Russo v. Forrest

Decided: October 17, 1958.

FRANK RUSSO AND MARY RUSSO, PLAINTIFFS-RESPONDENTS,
v.
EDMOND FORREST, DEFENDANT, AND THE UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, APPELLANT



Price, Schettino and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

Frank Russo recovered a judgment of $1,050 and Mary Russo a judgment of $2,000 against Edmond Forrest, an uninsured motorist. The Superior Court entered an order that the Unsatisfied Claim and Judgment Fund Board (hereafter called the Fund) pay to Mrs. Russo her judgment of $2,000. The Fund appeals, contending that the trial judge erred in his determination (a) that Mrs. Russo was physically incapable of giving notice of intention to make claim against the Fund within 30 days from the date of the accident, and (b) that notice was given on her behalf within a reasonable period thereafter.

Mrs. Russo was a passenger in her husband's automobile on April 1, 1956 when it collided with Forrest's car. At that time L. 1952, c. 174, sec. 5, as amended by L. 1955, c. 1, sec. 4 required notice of intention to claim from the Fund "within 30 days after the accident." The first notice that Mrs. Russo intended to claim from the Fund was filed August 8, 1956 by an attorney retained by her husband. She was therefore obliged to bring herself within the exceptions of the act by proving "to the court on the hearing of the application for the payment of [the] judgment that [s]he was physically incapable of giving said notice within said period and that [s]he gave said notice within 30 days after [s]he became physically capable to do so or in the event that [s]he did not become so capable that a notice was given on [her] behalf within a reasonable period."

To do that there appeared on behalf of Mrs. Russo (she did not testify) two physicians -- Dr. Randazzo who

treated her from the day of the accident to June 25, 1956, and Dr. Kastler who treated her after July 7, 1956. As was said in Giacobbe v. Gassert , 51 N.J. Super. 111, 122 (App. Div. 1958) the testimony of Dr. Randazzo "coming as it does from plaintiff's own physician who was best able to judge [her] condition expertly, it affords the most reliable source for determining plaintiff's capability."

Dr. Randazzo testified that Mrs. Russo's injuries were "a severe sprain of the right chest * * * contusion of the right breast, contusion of the right arm * * *." She was 65 years old; she had "nervous hysteria, tachycardia and marked tremors," and hypertension. However, though she spent most of her time in bed, she was "able to be up and around with the aid of * * * her husband or her daughter" and in that fashion came to Dr. Randazzo's office for treatment. Dr. Randazzo said "Physically she could do very little. Mentally she appeared to be a fairly intelligent woman, but emotionally unstable. She was emotionally unstable. She would cry and go into spells of feeling sorry for herself and why did this thing happen to me. It would be difficult to ascertain when her moments of lucidness were there. At the time she was in my office she was emotionally upset, but there must have been times when she was capable of reasoning fairly logically and think fairly logically because, as I say, she was a fairly intelligent woman."

He defined what he meant by her emotional instability:

"From the times that I observed her, Mrs. Russo was never emotionally stable. She was always crying with pain and bemoaning the fact that this accident should have happened, and she was not logical with me in telling me what her complaints were. She had me X-ray her more than once because of the fact she thought sure there was something broken, even though I X-rayed the first time and I told her there wasn't. I had to convince her by re-X-raying her and showing her the pictures. Those present an illogical way of thinking. However, in her mind that she did have something broken there because she had so much pain. However, it is difficult for any doctor to say whether a patient who presents a picture of pain and disturbance, what she will do when she is at home or when she is at rest or when she is in the company of people to whom she doesn't complain as much as she does to the doctor. I don't

know whether I make myself clear in this explanation, but to me she was always emotionally upset."

But in answer to a question by the court Dr. Randazzo testified:

"Q. Doctor, in your opinion, was she physically capable of filling out ...


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