For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.
Plaintiff appealed to the Appellate Division from a judgment for defendant Charles Harris entered in the Law Division. The Appellate Division affirmed the Law Division, Douglas v. Harris, 63 N.J. Super. 313 (App. Div. 1960). Certification was granted by this court, 34 N.J. 64 (1961).
On March 24, 1957 plaintiff, a pedestrian, was struck by an automobile operated by Mary Johnson. Charles Harris, a passenger at that time, was the owner thereof. Both owner and driver were uninsured. Although it does not specifically appear in the appendix, it is apparently conceded that plaintiff gave notice to the Unsatisfied Claim and Judgment Board Fund (Fund) within 90 days of the accident of her intention to make a claim against said Fund. N.J.S.A. 39:6-65.
On September 8, 1958 plaintiff filed a complaint in the Law Division asking recovery for the damages sustained by her as a result of said accident. Johnson was never served. Harris (hereafter referred to as defendant), although served, failed to file an answer or defend within 20 days after service upon him. It is also impliedly conceded that plaintiff gave notice to the clerk of the court for the entry of default pursuant to R.R. 4:56-1 and thereafter applied to the court for entry of judgment by default, having given notice of her intention to the Board to so enter judgment and file a claim thereon as required by N.J.S.A. 39:6-74. Pursuant to N.J.S.A. 39:6-66
the Board assigned an insurer for investigation and defense who in turn retained counsel for the defense of the action. The default was set aside and leave was granted to file an answer out of time. The answer admitted ownership of the vehicle which injured plaintiff but denied that it was being operated negligently or on defendant's business. By way of affirmative defense the answer asserted assumption of risk, contributory negligence and unavoidable accident. Plaintiff served interrogatories on defendant on May 8, 1959 which he failed to answer. On July 14, 1959 defendant was ordered to answer said interrogatories within 20 days of July 16, 1959. At pretrial conference on July 27, 1959 the trial judge was advised that the interrogatories remained unanswered because of the disappearance of defendant. On August 25, 1959 plaintiff moved to strike defendant's answer because of his failure to comply with the order to answer said interrogatories. The court granted the motion but allowed counsel a five-day period of grace to locate him. On October 13, 1959 defendant having failed to answer as directed, the court ordered his answer struck and rendered a "Judgment by Default" in favor of plaintiff. On December 17, 1959 plaintiff, having waived a trial by jury, proceeded to bring the matter on for proof of her damages before the trial judge. The trial judge ruled that since the case involved the Fund, which partook of the nature of a public trust, plaintiff was obliged to establish both defendant's liability and her damages, and proceeded to cross-examine plaintiff and her witnesses. After trial the court entered a judgment for defendant on the ground of plaintiff's contributory negligence.
Plaintiff argues (1) proof of liability should not be required after a judgment by default has been rendered as a sanction under R.R. 4:27-2(b)(3); (2) the court erred in finding plaintiff guilty of contributory negligence as the pleading raising that issue was stricken and the evidence in any event did not sustain that conclusion.
Although admitting some power in the trial court to require proof of liability where a final judgment by default is sought under R.R. 4:56, plaintiff contends that power does not exist where such a judgment is sought under R.R. 4:27-2(b)(3).
R.R. 4:56-1 provides that when a party has failed to "plead or otherwise defend" the clerk shall enter a default on the docket as to such party on the formal written request by the moving party. Thereafter, under R.R. 4:56-2(a), the clerk is directed to sign and enter judgment where the defendant is neither an infant nor incompetent and suit is for a sum certain or for a sum which can be computed and made certain by the clerk, upon the request of the plaintiff and upon an affidavit setting forth the details of the amount claimed.
R.R. 4:56-2(b), which is pertinent to the matter sub judice, provides:
"In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless he is represented in the action by a guardian or guardian ad litem who has appeared therein. * * * 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)
As noted in Reilly v. Perehinys, 33 N.J. Super. 69 (App. Div. 1954), the practice of requiring proof of plaintiff's right to the relief demanded in the complaint, where he seeks the entry of a final judgment under R.R. 4:56-2(b), has not been the uniform judicial course in this State. We agree, for the reasons set forth in Reilly, however, that ordinarily the decision of whether to require such proof
where there appears to be some question of that right, should be left to the ...