Joyner v. ThomasAnnotate this Case
251 S.E.2d 906 (1979)
Max R. JOYNER v. V. W. THOMAS and wife, Lula C. Thomas and H. E. Lowry and wife, Marion T. Lowry.
Court of Appeals of North Carolina.
February 20, 1979.
*907 James, Hite, Cavendish & Blount by James M. Roberts and E. Cordell Avery, Greenville, for plaintiff-appellant.
No counsel for defendants-appellees.
The court, sitting without a jury, granted defendants' motion for directed verdict at the close of plaintiff's evidence. As plaintiff points out, the correct motion would have been for an involuntary dismissal under G.S. 1A-1, Rule 41(b), since the action was being tried without a jury. Compare G.S. 1A-1, Rule 50, Comment. However, such a motion, though improperly designated, may be treated on appeal as having been made under Rule 41. Higgins v. Builders & Finance, Inc., 20 N.C.App. 1, 200 S.E.2d 397 (1973), cert. den. 284 N.C. 616, 201 S.E.2d 689 (1974). Treating this motion as made under Rule 41, we find that it was necessary for the trial court to comply with that Rule and make findings as provided in G.S. 1A-1, Rule 52(a)(1): "the court shall find the facts specially and state separately its conclusions of law thereon."
*908 A motion for involuntary dismissal under Rule 41(b) has replaced the motion for nonsuit in civil actions tried without a jury. Whitaker v. Earnhardt, 289 N.C. 260, 221 S.E.2d 316 (1976). However, the questions presented by the two motions are not the same. The motion for nonsuit asked the court to determine whether the plaintiff's evidence, taken as true, would support a judgment for plaintiff. Helms v. Rea, 282 N.C. 610, 194 S.E.2d 1 (1973). The motion to dismiss, on the other hand "permits the trial judge to weigh the evidence, find facts against plaintiff and sustain defendant's motion at the conclusion of plaintiff's evidence even though plaintiff may have made out a prima facie case which would have repelled the motion for nonsuit." Whitaker v. Earnhardt, supra 289 N.C. at 264, 221 S.E.2d at 319. Because of this distinction, the language of the rule may be somewhat misleading in stating that defendant may move for dismissal "on the ground that upon the facts and the law the plaintiff has shown no right to relief." Our Rule 41(b) is identical to the federal rule. F.R.C.P. Rule 41(b). The present federal rule evolved from an original form which made no distinction between motions to dismiss in jury and nonjury cases, through an intermediate form which added the provision that when the motion was granted in a nonjury case the court might then determine the facts, to the present form which restricts the motion to dismiss to nonjury cases. 9 Wright & Miller, Federal Practice & Procedure § 2371. By allowing the court to determine the facts after granting the motion, the drafters of the rule established a distinction between a motion to dismiss and a directed verdict, id., and "[g]rant of the defendant's motion [at the close of plaintiff's evidence] is a decision on the merits in favor of defendant." Id. at 224. This concept, though criticized, see Steffen, The Prima Facie Case in Non-Jury Trials, 27 U.Chi.L.Rev. 94 (1959), has been adopted by most state courts, including ours.
It has been said repeatedly that it is the better practice for the trial court to take the alternative presented by the Rule and "decline to render any judgment until the close of all the evidence." See, e. g. Whitaker v. Earnhardt, supra; Helms v. Rea, supra. Where the trial court does not do so, but instead chooses to grant defendant's motion at the close of plaintiff's evidence, he must then find the facts and state his conclusions of law separately as required by the Rule. Since the court here failed to make these necessary findings we must vacate and remand for a new trial. Carteret Co. General Hospital Corp. v. Manning, 18 N.C.App. 298, 196 S.E.2d 538 (1973).
Since a new trial is awarded it is unnecessary for us to address the errors assigned to the court's rulings on evidentiary questions.
PARKER and WEBB, JJ., concur.