For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Schettino, J.
Appeal was taken from an order directing defendant Unsatisfied Claim and Judgment Fund Board to pay plaintiffs the sum of $8,000 plus costs being the total amount of judgments recovered by plaintiffs against defendant, William J. Howard. We certified the cause on our own motion while the appeal was pending in the Appellate Division.
In January 1959 plaintiffs were in a vehicular accident in Pennsauken, New Jersey with a tractor-trailer owned by and operated on behalf of defendant William J. Howard, trading as Howard Transfer Co. of North Carolina. At the time of the accident the tractor-trailer was driven by Edward E. James of Greenville, North Carolina. Action was promptly instituted by plaintiffs in our Superior Court, Law Division, against Howard. After defendant failed to file an answer, a default was entered on plaintiffs' request,
and judgments were entered on May 29, 1959 for both plaintiffs. Although the driver's name and address were known to plaintiffs, he was not made a party to the action.
On July 21, 1959 plaintiffs obtained an order to show cause for payment from the Unsatisfied Judgment Fund pursuant to N.J.S.A. 39:6-61 et seq., and on October 23, 1959 the trial court ordered payment of the judgments by the Fund.
Before us the Fund resists the order to pay the judgments on the grounds that defendant Howard was covered by insurance at the time of the accident and therefore plaintiffs are barred from recovering under N.J.S.A. 39:6-70(f) and that plaintiffs are also barred for failure fully to pursue and exhaust all available remedies for recovering their judgment against the other party involved in the accident, and for failure to comply with other provisions of N.J.S.A. 39:6-70 and 71. Although not listed in the statement of questions involved, the Fund also seeks the opportunity to question the amount of the judgment the plaintiffs obtained. N.J.S.A. 39:6-74.
Plaintiffs contend that the Fund is estopped from raising all but the first of these issues as they were not raised at trial.
The Legislature has specified certain requirements which must be complied with by an applicant (N.J.S.A. 39:6-70 and 71) and sets forth two situations where relaxation is permitted. Subsections 70(h) and 70(i). There, however, the applicant must prove to the satisfaction of the court that it was impossible to comply with those provisions.
In Giles v. Gassert, 23 N.J. 22, 34 (1956), we noted that "The statute is to be liberally construed to advance the remedy, due regard being had to the protection of the Fund against fraud and abuse and to the fulfillment of the essential legislative policy." But while liberality of construction of remedial legislation is desirable, we cannot ignore the plain meaning of the language employed by the Legislature for as was said in Dixon v. Gassert, 26 N.J. 1, 9
(1958) "It is not our function to legislate; it is our duty to interpret. And in doing so we must give effect to the language employed by the legislative body in order to properly effectuate the legislative design." And, at page 8: "There is no absolute indemnity provided for. * * * the statute does not reflect an intention to make every claimant completely whole * * *." Rather it provides some measure of relief to those persons who come within the class intended to be protected. Corrigan v. Gassert, 27 N.J. 227, 233 (1958). But before coverage can be extended to any applicant, he must clearly demonstrate that he is a member of the class for whose benefit the Fund was established. The following observation from Re Sinclair v. Woodward,  1 D.L.R. 398, 400 (Ont. Ct. App. 1951) is here pertinent:
"But that Fund is not available to every judgment creditor. It is available only in cases falling within the provisions of the Act. The Fund is made up of contributions from members of the public, and the Court is, in a sense, the guardian of the Fund. Therefore, much care and vigilance are required before the Court can be satisfied that the conditions of the statute have been fulfilled, or before it may dispense with the necessity for complying with any of the statutory requirements in a particular case. Every provision of the Act designed for protection of the Fund should be given full consideration and effect. The burden is on a judgment creditor making application for an order directing payment out of the Fund to show ...