Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.
The question here is whether the Unsatisfied Claim and Judgment Fund Law, N.J.S.A. 39:6-61 et seq. , and particularly section 39:6-78, permits one injured while a passenger in a car involved in an accident to join the Director of Motor Vehicles as a defendant, along with the operator of the car he was riding in, when he asserts that the accident was caused by the negligence both of the latter and of an unidentifiable operator of another motor vehicle. (The complaint does not expressly state that the identity of the other motor vehicle and owner thereof is unascertainable, as required by the cited section, but no point is made of this by the Director, and leave to amend should be granted if, as we assume, it was plaintiff's intention so to assert. If the identity of the other car or its owner was known, the action is subject to dismissal as to the Director. See Tinsman v. Parsekian , 65 N.J. Super. 217 (App. Div. 1961).) The Director moved for a dismissal as to himself as defendant on the ground that the statute contemplates exhaustion of plaintiff's remedies against other tortfeasors implicated before suing the Director as statutory respondent for the liability of the unknown driver. The motion was granted by the Law Division, primarily on the authority of McGainey v. Cable , 65 N.J. Super. 202 (App. Div. 1961). Plaintiff appeals.
The Unsatisfied Claim and Judgment Fund Law was adopted in 1952 for the primary purpose of affording some measure of relief to the victims of negligently operated automobiles where compensation was otherwise thwarted either by reason of lack of knowledge of identity of the tortfeasor (the typical "hit and run" case) or by his financial irresponsibility. Dixon v. Gassert , 26 N.J. 1 (1958). Running through the
scheme and structure of the statute, however, are measures to prevent actual payment out of the State Fund of any such claim unless a genuine cause of action has been established within the scope of the act and all other possible means for satisfying the claim are exhausted.
Ordinarily, as pointed out in Corrigan v. Gassert , 27 N.J. 227, 233, 234 (1958), "the statute embodies two distinct procedures to be pursued by a claimant who seeks to recover from the Fund. The procedure to be followed by a particular claimant depends upon whether or not the identity of the tortfeasor who inflicted the injury can be ascertained." If it can be, the negligence action itself is brought against the tortfeasor only, not the state official representing the Fund (the Director of Motor Vehicles). And if the judgment recovered therein is satisfactorily established to be uncollectible, application may be made to the court wherein judgment was entered for an order for payment out of the Fund up to the statutory maximum specified. Where, however, the victim has been injured by a "hit and run" driver and thus does not know whom to sue, other provisions of the statute, including section 39:6-78, apply, permitting the claimant to bring his action against the Director in the first instance. Even in such case, however, the judgment entered must be reduced by any amount received or recovered from any other person legally responsible for the damages arising from the same accident. N.J.S.A. 39:6-84. In other words, the general philosophy of the act is that whether the Director is sued in the first instance, as in a "hit and run" situation, or the Fund is proceeded against after an uncollectible judgment is recovered against a known operator, the Fund is only a secondary resource for relief of the claimant, and preliminary exhaustion of other means of satisfaction of the claimant's cause of action is contemplated.
The statute envisages that in an action against a known defendant it may eventuate that recovery will be denied on the sole ground that the injury was occasioned by an unknown operator. If so, the claimant may within three months after
a judgment incorporating that finding apply for leave to sue the Director as though under section 39:6-78. N.J.S.A. 39:6-79. Moreover, even after commencing an action against a known operator, if it thereafter appears that an unknown operator was also implicated, the Director may be impleaded as defendant. See N.J.S.A. 39:6-80.
The crucial question posed by the instant case, one not heretofore passed upon in any reported opinion by our courts, is whether the Director may be joined as a defendant under section 39:6-78 when plaintiff seeks to assert his claim against the operators of both of the two cars jointly involved in an accident, he being a passenger in one of the cars, one operator and car being unknown, the other (the car in which plaintiff was a passenger) known. The pertinent language of N.J.S.A. 39:6-78 is as follows:
"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, but no judgment against the director shall be entered in such an action unless the court is satisfied, upon the hearing of the action, that --"
So far as the face of the section is concerned, it does not purport to restrict the right to join the Director to such "hit and run" situations as do not involve the contributory participation in the accident of a known car and operator. Yet the Director argues here that it should be so construed in the light of the general scheme of the statute as calling for resort to all other remedies before seeking payment from the Fund. The flaw in the argument, however, is that it assumes ...