Goldmann, Lewis and Matthews. The opinion of the court was delivered by Goldmann, P.J.A.D.
Defendant Director of Motor Vehicles appeals from a Law Division judgment entered upon a jury verdict awarding plaintiff $9,000 in his action to recover for injuries suffered in a "hit-and-run" automobile accident under the provisions of the Unsatisfied Claim and Judgment Fund Law, N.J.S.A. 39:6-78.
The incident occurred on Christmas afternoon 1965 as plaintiff started to cross a street in Camden, N.J. He was unable to identify the automobile that hit him or the driver. Accordingly, he instituted suit in October 1966 against defendant Director. After answer filed, the depositions of defendant Cruz and one Colon were taken in July 1967. In the course of his deposition Colon identified the vehicle which struck plaintiff as one driven by Cruz. Shortly thereafter, on November 20, 1967, plaintiff instituted suit against Cruz, alleging he was the driver of the offending vehicle.
Counsel for defendant Director then sought and obtained an order consolidating the two matters for trial. Following this, he moved for summary judgment, seeking dismissal of the case against the Director on the ground
that plaintiff first had to exhaust his remedies against the known identified defendant. The motion was denied, the trial judge voicing concern that plaintiff might possibly be exposed to inconsistent judgments if the Director were dismissed at that juncture, i.e. , Cruz might be held not to have been the hit-and-run driver in the second suit and later, in the action against the Director, another jury might decide that Cruz was in fact the driver. These possible inconsistent verdicts would leave plaintiff without a remedy. There was no attempt to seek leave to appeal from the interlocutory order denying the motion.
The consolidated cases proceeded to trial against both the Director and Cruz. At the close of all the evidence counsel for the Director, who had actively participated in the trial, again moved for a dismissal, contending that plaintiff could not proceed against the identified known defendant, Cruz, and the Director in the same action. This motion, too, was denied, the trial judge indicating that to release the Director at that point in the proceedings would be highly prejudicial to defendant Cruz. Plaintiff's counsel, in turn, submitted a written request that the jury be charged that it could not consider the issue of plaintiff's contributory negligence because defendants had presented no evidence to that effect. The trial judge denied the request and in the course of his charge instructed the jury on the issue of plaintiff's contributory negligence. Following the return of a $9,000 verdict against the Director only, the Director unsuccessfully moved for a new trial. This appeal followed.
It is first argued that the Director's liability should not have been submitted to the jury with the issue of Cruz' liability. The decision in Schaeffer v. Strelecki , 107 N.J. Super. 7 (App. Div. 1969), decided a month after the filing of the notice of appeal in this case, is clearly dispositive of that contention. In that case plaintiffs first sued defendants Balderose, alleging them to be the tortfeasors in the automobile accident in question. Defendants denied that their car was involved and, although there was some evidence
that seemed to involve them in the accident, they were successful in having the case dismissed against them on a motion for summary judgment. Plaintiffs thereupon instituted suit against the Director pursuant to the hit-and-run provisions of the Unsatisfied Claim and Judgment Fund Law. The Director defended the action in a full trial as to liability, the only real issue submitted to the jury being whether the accident involved a known driver (Mrs. Balderose) or an unknown one. The jury found in the Director's favor, thus finding, in effect, that Mrs. Balderose had been driving the offending car. Plaintiffs' motion for a new trial having been denied, they appealed. They then applied to the judge who had granted summary judgment in the Balderose case for relief pursuant to R.R. 4:62-2(f) [now R. 4:50-1(f)]. Denial of that motion resulted in a second appeal. This court reversed and remanded the case for a new consolidated trial as to all parties. After quoting from what another Part of the Appellate Division had said in Dietz v. Meyer , 79 N.J. Super. 194, 200-201 (1963), the court said:
We accordingly hold that where genuine doubt exists as to the identification of the person (owner or driver) responsible for the operation of an automobile in a "hit and run" accident resulting in personal injury or death, the plaintiff shall not be required to exhaust his remedy against the assumed driver and owner before recourse to suit against the Director, but, provided he is otherwise eligible to do so, may implead the latter as a defendant in the alternative in the suit against the assumed owner or driver, or both. Thereafter, liability shall be determined at a single trial. We are satisfied that this method of procedure best comports with the liberal construction to be given to the Unsatisfied Claim and Judgment Fund Law, Giles v. Gassert , 23 N.J. 22, 34 (1956), the spirit of our modern practice, and the requirements of substantial justice. [107 N.J. Super. at 13]
The court further said that "where there is probable cause to entertain doubt as to the identity of the tortfeasor, the overall interests of the Director will be better served by permitting her to be ...