Conford, Foley and Mintz. The opinion of the court was delivered by Mintz, J.s.c. (temporarily assigned).
[63 NJSuper Page 315] Plaintiff appeals from a judgment of the Superior Court, Law Division, in favor of defendant Harris.
Plaintiff, a pedestrian, was injured when struck by the automobile owned by Charles Harris and operated by Mary Johnson. She filed her complaint against owner and operator, but Mary Johnson was not served with the summons and the case proceeded solely against Harris on an agency theory. The Unsatisfied Claim and Judgment Fund Board (hereinafter referred to as "Board") became implicated in the case and undertook his defense. L. 1952, c. 174; N.J.S.A. 39:6-61 et seq. Plaintiff served interrogatories which were not answered because the defendant Harris disappeared. After a series of motions involving the interrogatories, it was ordered that Harris' answer be stricken and "that a judgment by default be entered * * *." R.R. 4:27-2(b)(3).
Subsequently the matter came on for trial before another judge sitting without a jury, plaintiff having waived a jury trial. Upon application by counsel for the Board, he required proof of liability as well as damages but refused to allow the Board's counsel the right of cross-examination because of the order striking the answer. Instead he cross-questioned plaintiff's witnesses on his own initiative.
Plaintiff was injured in the early morning of March 24, 1957 while she was crossing Belmont Avenue in Newark in the middle of the block. She testified she looked both ways but saw no car approaching, heard no horn, and received no other warning of the impending accident. She could not testify whether the car had its lights on at the time of impact. A bystander, who did not see the accident, testified on behalf of plaintiff that after the accident the car's lights were on, that the occupants were laughing and not "quite themselves," that the police searched vainly for skid marks, that he had heard no horn before the mishap, and that when he crossed the street shortly before Mrs. Douglas, he had not seen the lights of an approaching car. The court reserved decision and thereafter filed written findings to the effect that the proof as to Harris' negligence was "very weak,"
that plaintiff was "guilty of contributory negligence," and that judgment would be entered for defendant.
Plaintiff now urges that the trial judge lacked the power to take proof on liability after the entry of a default judgment, or, assuming such power, that it was an abuse of discretion to exercise it here. She never objected below to the procedure she now complains of. Thus the plain error rule applies. Matthews v. Nelson , 57 N.J. Super. 515 (App. Div. 1959).
Plaintiff argues that the trial judge did not have the right to take proofs on liability because the issue had already been settled by the order striking defendant's answer and entering judgment by default in plaintiff's favor. She contends that since the Board did not appeal this ruling, it became the law of the case and the function of the trial judge was limited to fixing the amount of damages. We disagree. The order for judgment by default precludes a defendant from offering testimony in defense. It does not necessarily obviate the obligation of plaintiff to furnish proof on the issue of liability as well as damages. Such is the import of R.R. 4:56-2(b) which, in part, specifically provides:
"* * * If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings with or without a jury or take such proceedings as are necessary or proper. * * *" (Emphasis supplied)
This provision vests the trial judge with discretion in determining whether or not testimony should be taken as to liability, and the trial court proceeded on this theory.
We think the statement in Reilly v. Perehinys , 33 N.J. Super. 69, 73 (App. Div. 1954), is applicable to the case at bar.
"It is true that under the general rule obtaining in most jurisdictions upon a default in pleading, whether in equity or at law, proof of the allegations of the ...