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Heimbach v. Mueller

Decided: November 22, 1988.


On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Havey and Brochin. The opinion of the court was delivered by Brochin, J.s.c. (temporarily assigned).


This is an appeal from a judgment of no cause for action which was entered against plaintiffs following an ex parte proof hearing after defendant's default. The issue before us is whether the standard by which the trial judge tested the sufficiency of plaintiffs' proofs was appropriate. We hold that it was not.

Plaintiffs Sydney and Louise Heimbach were the owners of a carriage house, the second story of which was rented to defendant Reginald Mueller as a dwelling. The carriage house was destroyed by fire. The Heimbachs sued Mr. Mueller for their loss, alleging that the fire was caused by his negligence. Mr. Mueller filed no answer and a default was entered against him. Following an ex parte hearing, at which plaintiffs presented evidence bearing on both liability and damages, the court ruled that they had not sustained their burden of proving that the fire had resulted from the defendant's negligence, and it entered judgment for the defendant.*fn1 The plaintiffs now appeal from that judgment.

Plaintiffs' proofs that defendant negligently caused the fire were presented through the testimony of Mrs. Heimbach and Lieutenant Morgan, an officer of the local fire department who had investigated the origin of the blaze. Mrs. Heimbach testified that, following the fire, Mr. Mueller told her husband in

her presence, "I guess it [the fire] was all my fault" because he "had been standing on the deck smoking and flipping down cigarettes." Lieutenant Morgan expressed the opinion that, on the basis of the investigation which he and his department had conducted, the fire had probably been caused by cigarettes thrown out of the building onto a pile of high grass, leaves, cigarette butts and cigarette filter material which had accumulated in a rear yard beneath a window.

About Mr. Mueller's admission of responsibility to which Mrs. Heinbach had testified, the trial judge said ". . . I simply don't believe that it was said, or if it was said, it was said in such vague terms, and we don't know what condition Mr. Mueller was in, being it was New Year's Eve at the time, or what he meant by what he said, if he did say it." The court rejected Lieutenant Morgan's testimony because it was based in part on Mr. Mueller's admission that he had been throwing out cigarettes. The court said, "It's not clear out of what or off of what . . . [and] he doesn't say that he knew they were lighted or that they were lighted." Accordingly, the court entered judgment for defendant, holding that plaintiffs had not sustained their burden of proving "by a preponderance of the evidence" that the fire which destroyed their building had been caused by defendant's negligence.

The trial court's entry of a judgment of no cause for action on the ground that plaintiffs did not adequately prove defendant's negligence requires this court to consider the standard which a plaintiff should be called upon to meet in order to win a judgment after default. Although trial courts have been directed to view a plaintiff's proofs "indulgently" in the context of a proof hearing, see Morales v. Santiago, 217 N.J. Super. 496, 505 (App.Div.1987), and the general practice of our courts has been to require only a prima facie case, our reported opinions have not provided any more specific guidance.

The reported decisions of most other jurisdictions are not helpful for formulating a rule for our State. New Jersey's

salutary practice has been to allow the trial judge the discretion to require proof of liability at a default hearing.*fn2 R. 4:43-2(b); Douglas v. Harris, 35 N.J. 270, 276 (1961); Reilly v. Perehinys, 33 N.J. Super. 69, 72-74 (App.Div.1954). Our practice, however, represents a minority view. As this court has recognized, "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 complaint will not be entertained." Reilly v. Perehinys, 33 N.J. Super. 69, 73 (App.Div.1954). See also Annotation, "Neccessity of Taking Proof as to Liability against Defaulting Defendant," 8 A.L.R. 3d 1070 (1966).

In jurisdictions which follow the majority rule, if the plaintiff's complaint alleges facts which, if true, establish the defendant's liability, the court may not refuse to enter a default judgment upon proof of damages alone. For example in State ex rel. Nilsen v. Cushing, 253 Or. 262, 453 P. 2d 945 (Or.Sup.Ct.1969), the court mandamused a trial judge to enter a default judgment without oral proofs. In Southern Ariz. Sch. For Boys v. Chery, 119 Ariz. 277, 580 P. 2d 738 (Ariz.Ct. of App.1978), where plaintiffs defaulted by failing to answer a counterclaim which alleged that certain losses had resulted from their breach of contract, the trial court was held to have acted improperly by demanding proof that those losses were a direct and foreseeable consequence of the breach and by ruling

against the counterclaimant for lack of such proof. In Anderson v. Gallman, 99 A.2d 560 (D.C.Mun.Ct. of App.1953), at a proof hearing in an automobile negligence case, the plaintiff was offered as a witness to testify only about the amount of damages sustained by his automobile. During the course of testimony, however, he testified to facts which the trial judge concluded established his contributory negligence. The court therefore entered judgment for the absent defendant. On appeal, the reviewing court reversed, ...

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