Conford, Handler and Meanor. The opinion of the court was delivered by Meanor, J.A.D.
[125 NJSuper Page 241] Plaintiff here is defendant in a pending wrongful death action and is an insured under a homeowner's policy issued by defendant Hartford which declined to defend the death action on his behalf under its personal liability coverage. Plaintiff seeks by this declaratory judgment action judicial compulsion upon Hartford to defend and pay if necessary, and appeals from an adverse determination.
Plaintiff Lyons for over 20 years had been a Jersey City police officer. On May 15, 1971 he decided to attend an Irish feis*fn1 being held at the Freehold Race Track. He went alone. There he consumed beer and struck up an acquaintance with one Ed Perry. At about 7 P.M. he accompanied the Perry family, first to a diner and then to the Shillelagh Club. Lyons consumed more beer. The Perrys left, but plaintiff remained, still drinking.
At approximately 3 A.M. Lyons was in front of the club's entrance when he heard a female voice refer to coffee. This was Kathleen Berger. Lyons invited himself on the coffee trip, anticipating a visit to a diner. He entered the Berger car and sat in the right rear next to the eventual decedent, Richard Berger, husband of Kathleen, the driver. "Tiger" McFadden occupied the right front.
Instead of proceeding to a restaurant or diner, Mrs. Berger drove to Old Bridge and stopped at a private home. She rang the doorbell but did not obtain a response. Lyons then banged loudly on the door, which angered Mr. Berger.
In the car, with the occupants in the same positions, Richard Berger slapped plaintiff and McFadden punched him in the mouth, drawing blood. The car stopped and Berger and McFadden attempted to force plaintiff's exit, which he resisted. Mrs. Berger suggested that Lyons be returned to the Shillelagh Club parking lot where his car was parked, and drove there.
As plaintiff left the Berger vehicle he hurled an insulting remark at Berger and McFadden. He was walking toward his vehicle when he was struck from behind and knocked down. When down, he was again assaulted. He scrambled
away, turned and drew his service revolver. He was facing the glare of the headlights of the Berger car. He saw two figures approaching him. Lyons fired, killing Berger. He insisted his intention was to fire a warning shot over the heads of his assailants but inadvertently the gun went off prematurely.
Plaintiff was the only witness at the trial in the Chancery Division. After his testimony, plaintiff rested and Hartford's motion to dismiss was granted.
Under our present practice, R. 4:37-2(b), the judicial function in assessing the sufficiency of proofs at the end of the plaintiff's case on a motion to dismiss is the same in nonjury as in jury cases. The test to be applied is well known. Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969), and cases there cited. Prior to the 1969 rules revision, a trial judge sitting nonjury was permitted to make findings adverse to the plaintiff at the close of his proofs and dismiss even though a prima facie case had been established. This is now no longer possible.
The trial judge did not apply the correct standard on the motion to dismiss. Instead of viewing the proofs from the point of accepting the plaintiff's testimony as true, giving him the benefit of all legitimate inferences therefrom and rejecting all unfavorable evidence and permissible conclusions, the trial judge proceeded to make findings of fact on the motion. He concluded that Lyons was drunk, a fact not admitted beyond plaintiff's statement that he was "feeling the beer." The judge also said: "I do not attach credibility to his testimony that the discharge of the gun itself was an accident or premature." Credibility should have played no part in the determination the court was then called upon to make.
It is obvious, however, that we should affirm if the judgment was correct though the reasoning in error. On the other hand, if there is any legitimate view of the proofs that would sustain a judgment for plaintiff, we must reverse. Assessing ...