Conford, Collester and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.
The trial court granted defendant's motion to dismiss this action, brought under the Unsatisfied Claim and Judgment Fund Act, for failure of compliance with the conditions precedent contained in N.J.S.A. 39:6-78. Neither the notice of motion nor the order of dismissal indicates what provisions of the cited section were not met. Nor is the order accompanied by any findings or statement of reasons other than the oral conclusion at the hearing of the motion that there had not been "sufficient compliance with the act."
While the complaint is couched in somewhat general terms, it is clear that plaintiffs' action was based upon the theory that the motor vehicle which collided with theirs "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," thus bringing it within the enabling language of N.J.S.A. 39:6-78.
We gather from defendant's brief that her position below was that it was made to appear on the motion papers that plaintiffs knew from a police report concerning the accident that the owner of the other car was one Charles Saxton of 53 Wallace Street, Newark, and that under all the circumstances and the intent of the statute plaintiffs should have first sued Saxton and exhausted their legal remedies for satisfying their claim against him before bringing their action against the Director.
The defendant's motion was supported only by a copy of a routine accident report made by Patrolman Rizzo of the Orange Police concerning the accident, which occurred May 8, 1965. The space in the form for indication of the name of the driver of the other car is left blank, but Saxton's name
and address are furnished as those of the owner, as is also the identification of the vehicle, which was left at the scene and abandoned by its driver. The report also sets forth the names and addresses of two sixteen-year-old witnesses of the accident.
Plaintiffs countered the motion with an affidavit of Patrolman Rizzo. Therein, after saying he was summoned to the scene of the accident, he identifies Saxton as the owner of the other vehicle, but he does not state the source of his information. He recites that the operator of that vehicle "had run away from the scene of the accident on foot immediately following such accident." He says he interviewed the two above-mentioned eyewitnesses and the plaintiffs but these discussions "failed to reveal the identification of the driver" -- only that the driver ran away on foot before he could be identified. The last paragraph of the Rizzo affidavit summarizes an investigation report of Lt. Leo Hull of the Orange Police which purportedly stated that Saxton had "indicated" that his car was stolen and the car keys taken from his premises without his knowledge. The operator could not be identified. The affidavit goes on to say that "the report [of Lt. Hull] further discloses the fact that there is no evidence revealed which in any way places the owner of such vehicle at the scene of the accident or as the operator of his vehicle at the time and place in question."
We were told at oral argument that neither side has recently been able to locate Saxton; also that plaintiffs' damages are substantial.
N.J.S.A. 39:6-78, applying to so-called "hit-and-run" cases, allows an action to be brought against the Director of the Division of Motor Vehicles for satisfaction out of the Fund where "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." (Emphasis added.) The
section directs, however, that "no judgment against the director shall be entered in such an action unless the court is satisfied, upon the hearing of the action, that -- * * *
(e) All reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator thereof and either that the identity of the motor vehicle and the owner and operator thereof cannot be established, or that the identity of the operator, who was operating the motor ...