On motion for dismissal by defendant.
Masucci, J.c.c. (temporarily assigned).
Plaintiff Ester Serkes seeks the entry of a judgment against defendant Director of the Division of Motor Vehicles and recovery from the Unsatisfied Claim and Judgment Fund pursuant to N.J.S.A. 39:6-78 for injuries sustained by her arising out of the use of a motor vehicle by a person unknown to said plaintiff. In the course of a trial without a jury, at the close of the plaintiff's case, defendant moved for a dismissal. In support of the motion defendant contends:
1. That plaintiff was a "guest occupant" in said automobile and is thereby barred from recovery by virtue of the provisions of N.J.S.A. 39:6-70(c).
2. That plaintiff failed to make all reasonable efforts to ascertain the identity of the automobile and the driver thereof, as required by N.J.S.A. 39:6-78.
The material facts are not in dispute and are as follows: On August 26, 1959 plaintiff and other women were en route to a common destination, a "cabana club," when they were offered a ride by an unidentified person, apparently a fellow member of the cabana club. After the other women entered the automobile and while plaintiff was attempting to enter, said automobile suddenly moved forward, as a result of which she was thrown to the ground
and suffered the injuries complained of. Plaintiff then entered the automobile and continued on to the cabana club where she was treated by a Red Cross nurse. The driver of the automobile could not be located at the club. Plaintiff's attorney testified that he was retained on November 14, 1959 and had contacted the owners of the club and subpoenaed its records; that the membership of the club was over 700 in number; and the membership list and a partial identity of the automobile (i.e. , dark color, 1958 or 1959 model) were submitted to the Motor Vehicle Department to determine the owner of the automobile. Recourse was also had to the General Adjustment Bureau, which indicated by letter an "inability to check the same because of lack of personnel." He also testified that advertisements were printed in the local Anglo-Jewish paper and in the club newspaper requesting the owner of the automobile to come forward. None of these efforts disclosed the identity of the automobile or owner thereof.
The issues presented for determination are: (1) whether plaintiff has made "all reasonable efforts * * * to ascertain the identity of the motor vehicle and of the owner and operator thereof," as provided by N.J.S.A. 39:6-78; (2) whether N.J.S.A. 39:6-70(c) is applicable, insofar as it bars recovery by a person who is riding as a "guest occupant" in an automobile (This statute has since been amended and paragraph (c) omitted. However it has been stipulated by the parties that their respective rights are to be determined by the statute, if applicable, as it read prior to the amendment); (3) if N.J.S.A. 39:6-70(c) is applicable, was plaintiff a "guest occupant" at the time of the alleged accident, within the intendment of said statute?
There is no exact criterion of what "all reasonable efforts" consist of. Each case depends upon its own circumstances. In the instant case it appears that plaintiff made all reasonable efforts, considering the circumstances in which she found herself. The only possible effort not made was
a personal home inquiry of each member, 700 in number. Practicality is an element to be considered in determining reasonableness, and the court finds that such an additional impractical effort on the part of plaintiff would have extended beyond the bounds of reasonableness.
Is the guest exclusion clause of N.J.S.A. 39:6-70 applicable in the instant case? Plaintiff contends it is not on the ground that the "hit-and-run" section of the statute, N.J.S.A. 39:6-78, does not incorporate any clause of N.J.S.A. 39:6-70, except the clause dealing with ...