Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
[60 NJSuper Page 273] This is an appeal from a county district court judgment granting defendant's motion
for involuntary dismissal at the close of plaintiff's case on the ground that $50 paid by defendant to plaintiff was full settlement of the latter's claim.
The case was tried without a jury. No stenographic record was made. The parties have filed statements of the evidence and proceedings, approved by the trial judge, pursuant to R.R. 1:6-3, from which the essential facts may be gleaned.
Plaintiff sued to recover for property damage to his automobile resulting from defendant's negligence in making a left-hand turn directly into his path. Plaintiff was proceeding north, and when he was almost through the intersection defendant, driving south, cut sharply in front of him. Plaintiff tried to avoid the accident by turning to the right. The accident occurred in plaintiff's lane of traffic and on the north side of the intersection. Damages were stipulated at $163.10.
On cross-examination plaintiff admitted he had received $50 from defendant and given him a receipt for that sum "in payment of damage to my car." On redirect plaintiff explained that following a hearing in municipal court, he and defendant met outside and discussed the damages arising out of the accident. Plaintiff told him his damage was $163.10 and his out-of-pocket loss $50, and that he wanted this $50. Plaintiff further testified that the $50 he received was not payment in full for his damages. Asked what it was for, he said it represented $50 of his total damage. At this point the trial judge questioned plaintiff and again inquired what the $50 was for. Plaintiff said he had told defendant he had $50 deductible and the payment was for this deductible.
In granting defendant's motion for involuntary dismissal the trial judge stated that, without reference to plaintiff's proof of defendant's negligence, he was granting the motion because he considered the $50 as payment in full for plaintiff's property damage.
Plaintiff claims that the trial judge erred in granting the motion where plaintiff had established negligence which was
the proximate cause of his damage, and had denied defendant's sole defense of payment. The contention is that on a defendant's motion for involuntary dismissal at the close of a plaintiff's case, the trial court must accept as true all evidence which supports plaintiff's position and give him the benefit of all legitimate inferences which may possibly be drawn therefrom. It is asserted that the trial judge may not weigh the evidence at that stage of the proceedings; and that where fair-minded men might honestly differ as to the conclusion to be drawn from plaintiff's proofs, final determination of the issue should be suspended until defendant has presented his case.
Plaintiff overlooks R.R. 4:42-2(b), which reads:
"After the plaintiff has completed the presentation of his evidence on all matters other than, if that be in issue, the matter of damages, he shall so announce to the court, and thereupon the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action or any claim against him on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried by the court without a jury, the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 4:53-1. Unless the court in its order for dismissal otherwise specifies, a dismissal under Rule 4:42-2(b) and any dismissal not provided for in Rule 4:42, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits. Nonsuits are superseded." (Italics ours)
The rule, except for the wording of the first sentence, and the concluding sentence, is essentially Federal Rule 41(b). The latter was amended in 1946 by inserting the sentence we ...