Matthews, J.c.c. (temporarily assigned).
This matter comes before me on the application of plaintiffs, pursuant to N.J.S.A. 39:6-69, for payment by the Unsatisfied Judgment Fund of a judgment heretofore obtained by plaintiffs before this court and a jury. Counsel for the Fund opposes the application contending that the conduct of the defendant which caused the injury to plaintiffs amounted to an intentional harm (assault and battery with an automobile) and, therefore, the Fund is not liable for the payment of the resulting judgment.
To dispose properly of the application presently before the court, it is necessary to refer to the pretrial proceedings and the conduct of the trial of this action.
Plaintiff Alexandria Proskurnja, on September 1, 1958, was injured as the result of being struck by a motor vehicle operated by defendant Arthur Elder. On June 1, 1959 plaintiff and her husband, who sued per quod , instituted a civil action against Elder by filing a complaint with the clerk of this court. The complaint as filed alleged the happening of the accident, and further, that the injuries resulting therefrom to plaintiffs were caused proximately by the negligence of defendant. Defendant, being uninsured at the time of the happening of the accident (notice having been given to the Unsatisfied Judgment Fund by plaintiff) was represented in the action by counsel representing the Fund. Defendant filed an answer generally denying negligence and asserting the affirmative defenses of contributory negligence, assumption of risk, negligence of third parties, and failure of the plaintiffs to comply fully with the provisions of the Unsatisfied Claim and Judgment Fund Act. With regard to the last mentioned defense, it is not disputed that the only defense to payment of the judgment subsequently obtained by plaintiffs is that arising out of the alleged intentional nature of the harm inflicted on plaintiffs. There is no evidence that plaintiffs have failed in any other manner to comply with the provisions of the Unsatisfied Claim and Judgment Fund Act.
Subsequent to issue being joined in the action, pretrial discovery was conducted by defendant in the form of oral depositions. During the taking of the depositions, statements were made by plaintiffs and a witness, produced on their behalf, to the effect that the actions of defendant in operating his motor vehicle constituted an intentional assault and battery by defendant upon plaintiff Alexandria.
The matter came on for pretrial before a judge of the Superior Court on October 10, 1960. Paragraph 1 of the pretrial order entered in this action reads as follows:
"Essentially this is an alleged assault and battery by use of an automobile although the complaint sounds in negligence only. The husband sues per quod."
Although no amendment had been made to the complaint, plaintiffs' contentions were set forth in the pretrial order in the following language:
"Plaintiff contends on Sept. 1, 1958 the defendant had his car parked on Littleton Ave., Newark, N.J., facing north on the easterly side of the street, and that the plaintiff wife was removing personal articles from the trunk of a parked automobile which automobile was parked directly in front of the defendant's vehicle. She contends that the automobile from which she was removing the articles was parked near 386 Littleton Av. While she was removing the articles the defendant asked her to step aside so that his vehicle could proceed forward. She asked the defendant to wait a moment, the defendant blew his horn, plaintiff wife told defendant to shut up, defendant then deliberately moved his car forward, squeezing plaintiff between the bumpers of the two vehicles and remained in that position until the driver of the forward vehicle moved his vehicle forward, thus releasing plaintiff wife who fell to the ground. Plaintiff husband sues per quod."
The contentions of defendant alleged that there was no contact between defendant and plaintiffs' vehicle and then reiterated the affirmative defenses which he had set forth in his answer.
Paragraph 6 of the pretrial order contains the following:
"Plaintiff applied it [ sic ] pretrial to be permitted to amend complaint to allege willful, intentional injury which amendment the Court
denied because of defendant's objection. Plaintiff has leave to make a notice of motion within 20 days of this date for leave to amend. This Court expresses ...