Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
These consolidated appeals involve two inconsistent and irreconcilable verdicts.
Plaintiffs first sued defendants Mr. and Mrs. Balderose (Balderose). The latter denied that their car was involved and affirmed their denial in depositions. They were supported by the deposition of an apparently independent witness, Lynch. They thereupon moved for summary judgment. The factual basis for the motion is not stated but we assume it was plaintiffs' and defendants' depositions. The court granted the motion and entered summary judgment with prejudice.
Plaintiffs thereupon instituted suit against the Director of the Division of Motor Vehicles (Director) pursuant to the "hit and run" provisions of the Unsatisfied Claim and Judgment Fund Act, N.J.S.A. 39:6-78 and 79. They had not made the Director a defendant in the Balderose action because they believed that McGainey v. Cable , 65 N.J. Super. 202 (App. Div. 1961) forbade such joinder. The action was defended by the Director and a full trial as to liability was had at which the plaintiffs testified that they were unable to identify either the vehicle that hit them or the owner or driver thereof, and Mrs. Balderose testified that she had not been the driver of the car involved in the collision with them. The only real issue submitted to the jury was whether the accident involved a known driver (Mrs. Balderose) or an unknown one. The jury returned a verdict in favor of the Director, thus finding, in effect, that Mrs. Balderose had been driving the offending car.
Following the verdict plaintiffs moved for a new trial on the ground of errors in the exclusion of evidence, in the charge and in the denial of their motion for a directed verdict, and on the further ground that the verdict was contrary to the weight of the evidence and the result of bias, passion, mistake, partiality and prejudice. The motion was denied and plaintiffs appealed.
Plaintiffs thereupon applied to the judge who had granted summary judgment in the Balderose case for relief pursuant to R.R. 4:62-2(f). The second appeal is from denial of their motion.
At the trial of the suit against the Director plaintiff Henry Schaefer testified that on August 20, 1964, as he was driving north on the Garden State Parkway with his wife Dorothy Schaefer as a passenger, he was struck violently from the rear shortly after passing the ramp leading from the New Jersey Turnpike to the Parkway. It had been raining, traffic was light and he was in the center lane when hit. The force of the crash caused the car to sway and it travelled a short distance before he was able to pull to the side and stop. He then observed that the car had been struck in the rear and that the rear window had been knocked out. However, there was no other car in the immediate vicinity and no car had passed him from the time of the crash until he stopped. After waiting a short while, Schaefer drove about two miles to a telephone booth near the next exit and called his son-in-law for help. Upon the arrival of the latter, the police were called and Trooper Karlsen responded. Mrs. Schaefer's testimony was in substantial accord with that of her husband. Neither one saw the car that struck theirs.
Karlsen testified that upon receiving notice of an accident near the ramp leading from exit 10 of the New Jersey Turnpike he went to the scene and found the Balderose car on the shoulder of the northbound section of the parkway, facing east. There was damage to the left front of the car and shattered glass over the entire width of the roadway at the scene. Mrs. Balderose told him she had struck a car which had suddenly come from the ramp leading from the Turnpike and that the car had continued on. He noticed no other car which could have been involved in the accident. He drove Mrs. Balderose to the hospital and on his return was detailed to the Schaefer accident. Damage to that car indicated it had been struck in the right rear and its rear window was missing. When the Schaefers were unable
to describe the car that struck them he drove Schaefer back about two miles to the scene of the Balderose accident. Although the fragments of shattered glass were still present, Schaefer testified it was dark and he was unable to state "exactly" that that was the place of the accident. There was no proof of any other accident in the area on the evening in question, and Karlsen stated that he received no notice of any. The exit ramp could be reached only by traffic which had been proceeding north on the Turnpike and was turning north onto the Parkway. The Schaefers testified they had not entered the Parkway by the exit 10 ramp but at a point south of it, at Perth Amboy, after visiting there with their daughter and son-in-law.
Mrs. Balderose testified that she entered the Parkway at Matawan and was driving north in the right-hand lane. As she reached the place where traffic entered the Parkway from the Turnpike a car "came from my right directly in front of me and I hit the brakes and skidded into the car and spun around." After the impact she never saw the car that she struck, and her own car came to rest at a right angle to traffic, on the right shoulder (facing easterly). The witness Lynch stopped and helped her until the state trooper arrived. She saw no other car there. There was glass all over the road. She never noticed the lights of the car she struck but was sure that the car came from the ramp leading from the Turnpike.
It would appear clear from the foregoing that had the Director been joined as a defendant in the Balderose action the irreconcilable judgments now before us would not have been possible. Since such joinder was precluded by McGainey v. Cable, supra , we requested the parties to submit supplemental ...