Conklin, J.c.c. (temporarily assigned).
Charles Sims, deceased, by his administratrix ad prosequendum pursuant to N.J.S.A. 39:6-69 through 71, makes application for an order requiring the Unsatisfied Claim and Judgment Fund to pay $5,000 in accordance with the Security Responsibility Law. The Fund denies its liability to the plaintiff on the ground that N.J.S.A. 39:6-70(c) proscribes liability in this case.
The plaintiff, on application for an order requiring the Fund to make payment, has proffered the following facts. On the day of the accident the defendant Frank Govan, also now deceased, came to the home of the plaintiff decedent Charles Sims and asked him to help in making a delivery of tires. Sims agreed to help in making this delivery if Govan in return would help Sims in certain work he wished done around the house.
The facts above set forth are contained in an affidavit signed by Dolores Sims, who was the administratrix ad prosequendum of the estate of Charles Sims, deceased. This affidavit is filed in accordance with the provisions of N.J.S.A. 39:6-67 through 71, and is a primary requisite before the court could give any consideration to an order for payment from the Fund. At the time of argument the question of the propriety of the affidavit under N.J.S.A. 2 A:81-2 (the so-called "Dead Man's Act"), was raised by counsel for the Fund, and the court at the time of the original hearing requested that briefs be filed. The brief on behalf of the applicant does not mention the competency of the affidavit under N.J.S.A. 2 A:81-2, and no brief has been furnished by the Fund.
In any event, the court feels that the "Dead Man's Act," N.J.S.A. 2 A:81-2, is no inhibition to the receipt of the affidavit in evidence, inasmuch as the affidavit is not filed by Dolores Sims as administratrix ad prosequendum , for her authority under her certificate is only to proceed with the action under the Death Act, and after judgment, her duties cease. There is no proof before the court that she has qualified as general administratrix and therefore should,
under the "Dead Man's Act," be disqualified from giving evidence as to any "transaction with or statement by the * * * decedent * * *." In passing, however, I do note that the "Dead Man's Act" has been severely criticized by all writers, and the case of the First National Bank of Toms River v. Levy , 125 N.J.L. 458, at page 460 (Sup. Ct. 1940), seems to qualify a beneficiary under a will to testify, as she was not a party to the suit. The same would be true of the next of kin.
The Fund maintains that the above agreement does not take the plaintiff out of the status of guest, and therefore, plaintiff's application should be denied.
N.J.S.A. 39:6-70 reads 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
"(c) He was not at the time of the accident, a guest occupant * * *."
In the statute the word "passenger" is not used in section 39:6-70(c), but the Legislature used the term "guest occupant." Evidently, it was their intention to deny payment to a "guest occupant" but not to deny it to all "passengers."
The issue is thus resolved to, "what did the Legislature intend by the word 'guest' within the meaning of this statute?" Although the word "guest" has been the subject of judicial construction in a majority of the states, usually in relation to a "guest statute," New Jersey has but one case construing the word guest, Casey v. Cuff , 46 N.J. Super. 33 (App. Div. 1957). The Casey case, supra , although tangentially discussing what elements constitute a guest, has as ...