Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
[65 NJSuper Page 218] Plaintiff's personal injury, automobile negligence suit against the Acting Director of the Division of Motor Vehicles, under the Unsatisfied Claim and Judgment Fund Law, N.J.S.A. 39:6-61 et seq. , was dismissed on defendant's motion before trial. The Law Division ruled that, under the stipulated facts, the conditions precedent to a suit against the Director under N.J.S.A. 39:6-78 had not been satisfied "because the identity of the
motor vehicle [which allegedly caused plaintiff's injuries] is known." Plaintiff appeals.
The stipulated facts are as follows:
"On April 23, 1958, at the intersection of Route No. 1 and Louisa Street in Elizabeth, New Jersey, a 1951 Pontiac automobile bearing Reg. NJ EN 8476 registered in the name of Benjamin Myerson of 132 South 8th Street, Newark, New Jersey, was in collision with the automobile of the plaintiff herein. That after the accident this automobile did leave the scene without the exchange of credentials and without disclosing the identity of the operator.
Subsequently a complaint of violation of R.S. 39:4-97 was made by the plaintiff against the defendant Myerson, but the defendant's whereabouts became unknown. Later, the automobile of the defendant Myerson was recovered as abandoned and was towed to the Highway Garage in Elizabeth, New Jersey, by the Elizabeth Police.
The whereabouts of the owner of NJ Reg. EN 8476, one Benjamin Myerson are still unknown."
N.J.S.A. 39:6-78, the pertinent statutory section, provides:
"When the death of, or personal injury to, any person arises out of the ownership, maintenance or use of a motor vehicle in this State on or after April 1, 1955, but the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained or it is established that the motor vehicle was at the time said accident occurred, in the possession of some person other than the owner without the owner's consent and that the identity of such person 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 or personal injury may bring an action therefor against the director in any court of competent jurisdiction * * *." (Emphasis added)
The trial court decided that the italicized words above should read "conjunctively" and, if so read, the plaintiff could not come within this section because the identity of the motor vehicle is known. It might have also added that the identity of the owner, as distinguished from his "whereabouts," was also known. Lancellotti v. Umbach , 60 N.J. Super. 226 (Law Div. 1960), was cited by the trial judge as dispositive of the issue.
We agree with the judgment of the trial court. The Lancellotti case presented an analogous situation. There, as here, the plaintiffs knew the identity of the automobile which caused their injuries and the identity of the owner thereof. After they failed to effect service of summons on the defendant owner of the automobile, whose whereabouts after the accident were unknown, as here, they amended their complaint to join the Acting Director of Motor Vehicles under provisions of the act which created the Unsatisfied Claim and Judgment Fund. The Director's motion for summary judgment was granted, the court holding that the "hit-and-run" provisions of the act were not applicable unless the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained. We concur in the reasoning of the Lancellotti case and the conclusion that all three identities, (1) motor vehicle; (2) operator; and (3) owner must be unascertainable, before there is a right to sue the Director under the first alternative provision of N.J.S.A. 39:6-78.
The other alternative of N.J.S.A. 39:6-78 is not applicable here, because the stipulated facts do not establish "that the motor vehicle was at the time said accident occurred, in the possession of some person other than the owner without the owner's ...