Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
The Unsatisfied Claim and Judgment Fund brings this appeal from the judgment of the Bergen County Court which directed payment by the Fund of $5,000 to plaintiff, pursuant to N.J.S.A. 39:6-23 et seq.
Plaintiff's claim arose out of an accident on November 9, 1957, in which he was injured while riding in a motor vehicle owned and operated by defendant Anthony Nocito. In an action against Nocito and the owner and operator of the automobile which collided with Nocito's vehicle, plaintiff obtained a $35,000 judgment against Nocito, who did not appear to contest the action, although he had filed an answer. The action against the other defendants, who did appear, was dismissed. Nocito being an uninsured driver whose whereabouts were unknown, plaintiff made application for payment from the Fund in accordance with N.J.S.A. 39:6-69.
The Fund disputes plaintiff's eligibility to receive payment from the Fund, contending that (1) plaintiff was an employee of Nocito at the time of the accident; and, alternatively, (2) plaintiff was a guest occupant in Nocito's vehicle when he suffered his injuries. It relies upon the prerequisites to recovery set forth in N.J.S.A. 39:6-70, which provides, inter alia:
"The court shall proceed upon such application, in a summary manner, and, upon the hearing thereof, the applicant shall be required to show
(a) He is not a person covered with respect to such injury or death by any workmen's compensation law, or the personal representative of such a person,
(c) He was not at the time of the accident, a guest occupant riding in a motor vehicle owned or operated by the judgment debtor and is not the personal representative of such a guest occupant, * * *."
This statute clearly places upon the claimant the burden of proving that he was not covered by any workmen's compensation law and was not a guest occupant. If he were an employee, other than a casual employee, and was injured in an accident arising out of and in the course of his employment in New Jersey, he would presumptively be covered by our Workmen's Compensation Law. R.S. 34:15-7 et seq. This is so whether the employer carried workmen's compensation insurance or not.
Plaintiff, in the negligence action proper, testified that Nocito had offered to sell to him a share in his bakery business which consisted of making daily deliveries of bakery products to retail stores and a few houses along an established route. At the time of the accident plaintiff and Nocito were delivering bread along the route. The crucial inquiry is what was the plaintiff's precise status in relation to Nocito at the time of the accident.
There was annexed to the plaintiff's complaint a verified statement of claim, as required by the rules as of the time the complaint was filed. The plaintiff swore therein on March 18, 1958 that he was employed at the time of the accident by the defendant Anthony Nocito on his bread route, at approximately $80 per week, and had lost his wages from the date of the accident. In addition thereto, the plaintiff furnished to the Unsatisfied Claim and Judgment Fund Board a physician's certificate, on which he completed and signed the following statement:
"Date of accident -- November 9, 1957; Location of accident -- Ringwood, N.J.
Your full name -- Santo Minardi; Age 29; Male; Married;
Address -- 283 Fernham Avenue, Lodi, N.J.;
Occupation -- Bread Salesman; Name of employer -- ...