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Continos v. Parsekian

Decided: May 24, 1961.


Price, Gaulkin and Sullivan. The opinion of the court was delivered by Price, S.j.a.d.


[68 NJSuper Page 56] Plaintiff seeks the reversal of a judgment entered in the District Court in favor of defendant in an action in which, pursuant to the provisions of N.J.S.A. 39:6-61 et seq. , plaintiff sought recovery of damages from the Unsatisfied Claim and Judgment Fund for personal injuries sustained on June 14, 1958, as a result of being struck by a motor vehicle while he was walking across a public highway in Newark. The case was tried before the court without a jury. The trial judge found as a fact that plaintiff was "a victim of a hit-and-run driver." Counsel join in presenting, as the sole question to be resolved on this appeal, the propriety of the trial court's holding that

plaintiff was not a resident of this State and therefore not a "qualified person" within the meaning of N.J.S.A. 39:6-62.

Plaintiff's proofs were that he is a citizen of Greece and had been in this country since the summer of 1956, under the authority of a student's visa (8 U.S.C.A. ยง 1101(a) (15)(F)). On his arrival in this country he stayed for a brief period with a friend in New Jersey and spent the remainder of the summer with his sister at Watertown, New York. From there he went to Oklahoma State University where he remained as a student for the school year 1956-1957. During part of the summer of 1957 he worked for the Corning Glass Company in Corning, New York. On the termination of that employment, and following a short visit with friends in New Jersey, he returned to the University for the school year of 1957-1958. From June 1, 1958 to June 14, 1958, when as above noted the accident occurred, plaintiff worked at a restaurant in New York City and had lodging in a rented room at 21 Osborne Terrace, Newark.

Following a period of confinement due to his injuries, plaintiff secured a job on or about July 15, 1958 at a summer resort hotel in Hensonville, New York, where he stayed for the remainder of the summer of 1958. He returned to the university for the school year 1958-1959, at the termination of which he worked at Elizabeth, N.J. and stayed with friends in this State for about a month. He spent the remainder of the summer of 1959 in "upstate" New York.

Contending that he had satisfied the residential requirement to constitute him a "qualified person" under the aforesaid statute (N.J.S.A. 39:6-62), plaintiff in his brief emphasizes that he had "obtained the room [at Osborne Terrace] on June 1, 1958 and lived at that address" from then to the date of the accident; that he had been in New Jersey "on several occasions prior to renting" the aforesaid room; that, although it "is conceded" that he "retained his domicile" in Greece, "he was able to establish a residence

elsewhere"; and that he "resided in New Jersey for the purpose of obtaining employment." As above stated, the trial court rejected his claim.

Plaintiff, leaning heavily on the decision of the court in Collins v. Yancey , 55 N.J. Super. 514 (Law Div. 1959), initially directs our attention to the following language from that opinion (at p. 519):

"* * * The statute is social legislation and is to be liberally construed in order to advance the remedy, with due regard for the proper protection of the Fund against fraud or imposition, so that all who are within the defined classification may receive relief as a matter of the social policy which is the underlying motivation for the passage of the statute. Giles v. Gassert , 23 N.J. 22 (1956)."

There is no doubt that the aforesaid statute is to be so construed and applied. We have recently noted that "the act should be liberally construed to advance the remedy and carry out its beneficial purposes," but that it is equally important that we recognize that "regard must always be given to protection of the Fund against * * * abuse." Tinsman v. Parsekian , 65 N.J. Super. 217, 220 (App. Div. 1961). Each of these factors must be honored in determining whether plaintiff was, at the time of the accident, a "resident" of this State within the meaning of the aforesaid act.

Preliminarily it should be observed that: (a) in resolving the issue here presented our courts have repeatedly, and in a variety of factual situations, recognized the difference between the meaning of the words "domicile" and "residence," Cromwell v. Neeld , 15 N.J. Super. 296, 300 (App. Div. 1951); In re Michelsohn's Will , 136 N.J. Eq. 387 (Prerog. 1944); Kurilla v. Roth , 132 N.J.L. 213 (Sup. Ct. 1944); (b) that a person "may have several residences or places of abode but he can have only one domicile at a time." Cromwell, supra , 15 N.J. Super. , at p. 300; (c) that the word ...

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