Goldmann, Leonard and Mountain. The opinion of the court was delivered by Goldmann, P.J.A.D.
Plaintiffs appeal from the denial of their application for an order directing payment by the Unsatisfied Claim and Judgment Fund of judgments recovered against defendant Frances Wallace, the trial judge finding that they were obtained by fraud and collusion between the parties.
Dennis Bears, an infant, and Vincent Gugliotta were passengers in an automobile owned by Paul Wallace and allegedly operated by Frances Wallace when, on February 25, 1964, it ran into a steel light pole on Central Avenue, Orange. The infant, by his guardian ad litem Jane Ruff, and Jane Ruff individually, sued to recover for his injuries and medical expenses. Gugliotta also sued for his personal injuries. Both actions named Paul Wallace as the owner and Frances Wallace as the operator of the automobile, and charged negligence in its operation. Defendant Paul Wallace was let out of the case when he successfully moved for summary judgment against plaintiffs.
The consolidated actions came to trial before Judge Allcorn sitting with a jury. Counsel for the Unsatisfied Claim and Judgment Fund appeared and attempted to participate in the trial, but was not allowed to do so when plaintiffs' attorneys objected. Frances Wallace, the uninsured defendant, was represented by retained personal counsel. After four days of trial the jury returned the following verdicts against her: $10,000 for the infant Dennis, $4,671.30 for Jane Ruff, and $4,000 for Gugliotta.
Plaintiffs then respectively moved under N.J.S.A. 39:6-70 for payment of their judgments from the Fund. The matter was heard by Judge Allcorn and the motions denied.
At the hearing counsel for the Fund contended that there was ample evidence at the trial of collusion between the
parties; it was Gugliotta who had been driving the Wallace car and not Frances Wallace, so that the condition of N.J.S.A. 39:6-70 for payment out of the Fund was not satisfied. The statute requires that the applicant for payment show that he was not, at the time of the accident, operating an uninsured car.
Counsel for plaintiffs, on the other hand, argued that there was no showing by the Fund of any fraud or collusion, and that the court could not go behind the unanimous jury verdicts in plaintiffs' favor.
Judge Allcorn observed that the Fund had not had an opportunity to participate in the trial, and so could presently question whether plaintiffs were entitled to payment out of the Fund. It had the right to rely upon the proofs adduced at the trial, particularly those with respect to who had been operating the automobile at the time of the accident.
The judge stated that he had taken extensive notes during the course of the trial, had carefully reviewed them and had concluded that the claims were founded upon fraud and collusion. He said that having observed plaintiffs' demeanor throughout the trial, he was satisfied beyond any doubt that all of them had knowingly testified falsely when they said that Frances Wallace was driving the automobile at the time of the accident. And he was satisfied, beyond any doubt, that Gugliotta was in fact the driver. The judge pointed out that the police officer who arrived at the scene shortly after the accident had questioned the infant Bears, Gugliotta and Mrs. Wallace and each had told him Gugliotta had been driving. The officer had testified that upon arriving at the scene, he found Gugliotta behind the steering wheel. The hospital records of these three parties were introduced in evidence and the histories recorded therein stated that Gugliotta was the driver. The judge also observed that Gugliotta had suffered fractured ribs, a broken collarbone and damage to his mouth and teeth -- injuries such as would be received by the driver of an automobile which struck a light
pole head-on rather than by someone in the front passenger's seat. By contrast, Mrs. Wallace had suffered nothing more than a fractured nose, cuts on her face and a sprained ankle, and she had suffered no injury to any area of her chest. These were not the ...