Conford, Freund and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.
We are here confronted with another troublesome mixed question of law and fact involving the notice provision of the Unsatisfied Claim and Judgment Fund Law, N.J.S.A. 39:6-61 et seq. , 65 (L. 1952, c. 174). See Giles v. Gassert , 23 N.J. 22 (1956); Russo v. Forrest , 52 N.J. Super. 233 (App. Div. 1958); Giacobbe v. Gassert , 29 N.J. 421 (1958). The specific problem is whether the plaintiff was "physically incapable" of giving the statutory notice, prerequisite to a claim against the Fund, during such period of time as the law, as interpreted by the cases, specifies for that purpose.
Plaintiff, while a pedestrian crossing a Garden State Parkway entrance at Perth Amboy, was struck and injured by a "hit-and-run" car on September 12, 1958, sustaining serious injuries to his left leg. Through a lawyer, plaintiff filed the requisite notice of intention with the Fund on March 4, 1959. On motion, the Law Division dismissed the claim for lateness of notice after hearing testimony relating to that single issue, all other conditions for liability being conceded by the Fund to have been satisfied.
N.J.S.A. 39:6-65 requires that a qualified claimant
"shall, within 90 days after the accident, as a condition precedent to the right thereafter to apply for payment from the fund, give
notice to the board, the form and contents of which shall be prescribed by the board, of his intention to make a claim thereon for such damages if otherwise uncollectible; 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 (a) that he was physically incapable of giving said notice within said period and that he gave said notice within 90 days after he became physically capable to do so or in the event he did not become so capable, that a notice was given on his behalf within a reasonable period, * * *." (Emphasis supplied)
Applying the view that "the act is to be liberally construed to advance the remedy, due regard being had for the protection of the fund and the realization of the essential legislative design," the Supreme Court has held that a showing of the requisite physical incapacity to give notice is made out where, "because of the physical injuries and their treatment and preoccupation with his affliction and fear of evil consequences, the victim of the mishap was not mentally and emotionally adjusted to his responsibility of giving notice * * *." Giacobbe v. Gassert, supra (29 N.J. , at p. 425); and see Giles v. Gassert, supra (23 N.J. , at pp. 28, 29).
Here, the testimony adduced showed that plaintiff had sustained a markedly comminuted fracture of the left tibia and fibula, middle third; fracture of the neck of the left fibula, with numerous other contusions, lacerations, and abrasions of his arms, abdomen and pelvic region and a laceration of the head requiring approximately eleven sutures. He was under medical care for one year following the accident, during which time he was confined to Perth Amboy General Hospital six times.
Plaintiff's first confinement to the hospital was from September 12, 1958 to September 27, 1958. The treatment of the leg injury was described by the attending physician as follows:
"Q. Now, Doctor, will you tell us what type of operation was performed at the hospital on September 12 for the correction of the comminuted fracture? A. In Mr. Greene's case, his was a markedly comminuted fracture, as you can see from the X-ray. And Mr. Greene was not unconscious following the accident, but
quite confused. And he states that he tried to walk on the bone ends. An operation was performed to, No. 1, correct the bony defects, that is, to put the bones in apposition. No. 2, to clean the devitalized muscles, for we know that infection occurs if that is not performed. Parts of ...