Kilkenny and Leonard. (At oral argument Judge Labrecque disqualified himself in this matter and counsel stipulated that it could be heard and determined by the remaining two judges.) The opinion of the court was delivered by Leonard, J.A.D.
The Unsatisfied Claim and Judgment Fund (Fund) appeals from the trial court's order directing it to pay a $7500 judgment recovered by plaintiff against defendant McCaskill, an uninsured motorist.
On January 22, 1965 McCaskill was operating his tractor in a southerly direction on Route 35 when he was involved in a collision with three other vehicles, respectively operated by plaintiff, Michael Murphy and Edward A. Cox. Defendant was driving from the Bond Transportation, Inc. (Bond) terminal in Woodbridge to his home in Long Beach.
Plaintiff instituted suit against McCaskill alone and filed a notice of intention with the Fund. Murphy by his guardian ad litem , and Cox sued McCaskill and Bond but they did not file a notice of intention. The suits were consolidated for trial and resulted in verdicts in favor of plaintiff,
Murphy and Cox. Plaintiff's verdict was solely against defendant while Murphy and Cox recovered against both defendant and Bond.
Bond was certified by the Interstate Commerce Commission (I.C.C.) as an interstate carrier. The relationship between McCaskill and Bond and the pertinent facts of that relationship are well set forth in Cox v. Bond Transportation, Inc. , 53 N.J. 186, 190-195 (1969). The theory of Murphy and Cox's action against Bond was two-fold: (1) Bond was liable for McCaskill's negligence under the common law respondeat superior doctrine, and (2) by reason of the I.C.C. regulations Bond was vicariously liable for McCaskill's negligence since at the time of the accident the latter was operating his tractor, as a lease-operator, under Bond's I.C.C. franchise. The trial judge held that McCaskill was an independent contractor and consequently the first theory of liability was not applicable. (No appeal was taken from this determination.) The second issue was submitted to the jury by means of a special interrogatory which, in returning its verdicts, the jury answered in the affirmative.
Upon appeal we reversed the judgments against Bond, holding that as a matter of law vicarious liability should not have been imposed on it because of McCaskill's negligence. Cox v. Bond Transportation , 99 N.J. Super. 335 (App. Div. 1968). Our conclusion was predicated upon the finding that on the day of the accident and at all other times McCaskill was operating his tractor for Bond in intrastate commerce and thus he was not operating under Bond's I.C.C. franchise. Id. at 338-339.
The Supreme Court granted certification, 51 N.J. 571 (1968), reversed our determination, and reinstated the judgments entered in the trial court in favor of Murphy and Cox. Cox v. Bond Transportation, Inc., supra , 53 N.J. 186 (1969). The court held that under the existing circumstances the question of Bond's vicarious liability was one requiring determination by the triers of the facts, and
that their affirmative answer was amply supported by the evidence in the case. Id. at 206-207.
Thereafter, upon plaintiff's motion the order now under attack was entered directing the Fund to pay the $7500 judgment recovered by plaintiff against defendant McCaskill.
The Fund presently urges, as it urged below, that plaintiff is precluded from recovery because he did not commence an action as to all parties against whom he might reasonably have been considered to have had a cause of action. It asserts that plaintiff should have reasonably anticipated a recovery against Bond and should have included Bond as a party defendant to its action. Since plaintiff did not commence an action against Bond, the Fund argues that N.J.S.A. 39:6-71(b)(1) precludes the entry of an order directing it to make payment to plaintiff. The Fund concedes that the case law prior to the Supreme Court determination in Cox v. Bond Transportation, Inc., supra , was "somewhat limited and ...