Kilkenny, Carton and Fulop. The opinion of the court was delivered by Fulop, J.s.c. (temporarily assigned).
[98 NJSuper Page 297] Plaintiff appeals from the dismissal on pretrial motion of his action for damages for personal injuries instituted against the Director of the Division of Motor Vehicles under N.J.S.A. 39:6-79 one of the "hit and run" provisions of the Unsatisfied
Claim and Judgment Fund Law. The action was dismissed upon the grounds that it was not instituted within two years after the cause of action accrued, as required by N.J.S. 2 A:14-2, and that plaintiff failed to give notice to the Fund Board of his intention to make claim against the Fund within 90 days after the accident as required by N.J.S.A. 39:6-65. The trial court's oral opinion makes no reference to the failure to give timely notice but the order made thereon includes this ground.
The facts alleged in plaintiff's brief are as follows. On December 23, 1964, at about 12:45 A.M., plaintiff was operating his automobile in a southerly direction along Main Street in Hackensack, New Jersey. One Robert D. Castellan, age 18 and having no driver's license but a learner's permit, was operating an automobile owned by Jean Castellan northerly on Main Street. He was accompanied by Ben Fontanella, a licensed driver. Castellan crossed the center of the road and struck plaintiff's vehicle. Plaintiff suffered personal injuries.
The police report of the accident quotes a statement by Castellan that another vehicle attempted "to pass him on the right side and forced [him] into the southbound lanes." The report also contains the following: "Note: Driver of vehicle No. 1 [plaintiff] also stated that he saw an unknown vehicle attempting to pass No. 2 vehicle just before collision occurred."
Plaintiff instituted a timely action against both Castellans and Fontanella. He gave no notice to the Fund and did not join the Director as a defendant. On February 28, 1967 a jury verdict was rendered in that action in favor of defendants. On March 6, 1967 the trial judge entered judgment on the verdict, molding it to include the finding that "the accident of December 23, 1964, and the personal injuries of the plaintiff Franklin T. Condit, were caused solely by the ownership, use and maintenance, of a motor vehicle in this state, by persons unknown and whose identity remains unknown after all reasonable efforts to ascertain that identity were made."
On March 9, 1967 plaintiff filed his notice of intention with the Unsatisfied Claim and Judgment Fund Board. This was more than two years after the accident. On March 15, 1967 he instituted the present suit against the Director, more than two years after the cause of action for damages for personal injuries arose, but within three months after the entry of judgment in the prior action.
The Director moved before trial to dismiss the complaint, and the motion was granted. This appeal followed.
The record on appeal is sparse. It is not clear what was before the trial court on the motion aside from the complaint. However, the trial judge in his oral opinion decided as a matter of law that the action was barred because it was instituted more than two years after the cause of action arose, citing Lewis v. Engelhardt, 79 N.J. Super. 171 (Law Div. 1963).
N.J.S.A. 39:6-79 provides that:
"When in an action in respect to the death of, or personal injury to, any person, arising out of the ownership, maintenance or use of a motor vehicle in this State on or after April 1, 1955, judgment is rendered for the defendant on the sole ground that such death or personal injury was occasioned by a motor vehicle --
(a) The identity of which, and of the owner and operator of which, has not been established, or
(b) Which was in the possession of some person other than the owner or his agent without the consent of the owner and the identity of the operator has not been established, such cause shall be stated in the judgment and the plaintiff in such action may within 3 months from the date of the entry of such judgment bring an action upon said cause of action against the director in the manner provided in section 18. [ N.J.S.A. 39:6-78]."
In Corrigan v. Gassert, 27 N.J. 227 (1958) the Supreme Court held that a claimant under N.J.S.A. 39:6-79 is not required to file a notice of intention within the time allowed by N.J.S.A. 39:6-65 if he had probable cause for instituting an action against a known motorist and not asserting a claim against ...