Thorman v. Speedway Cab Corp.

(concurring). I concur for affirmance. This death action was tried before a court without a jury and findings were waived. The decision of the court was: “Judgment for the defendant.”

Where findings have been waived and the decision in a negligence action is in favor of the plaintiff for an amount certain nothing further is necessary because implicit in such a decision is the finding of the court that the defendant was negligent and that the plaintiff was free from contributory negligence. *741Where, however, the decision is in favor of the defendant without more as here, a reviewing court is unable to tell whether the trier of the facts found absence of negligence on the part of the defendant or contributory negligence of the plaintiff or both. The proper practice in such a case, therefore, even where findings have been waived, is for the court, sitting without a jury, to include in his decision when he decides for a defendant, his findings with respect to the negligence of the defendant and the contributory negligence of the plaintiff. This is particularly important in a death case where the burden of proof differs with respect to those two issues. However, I agree with my colleagues that in view of the record in the instant case it would serve no useful purpose to remit it to the trial court for the purpose of making the findings referred to.

Glennon, J. ¡P., Dore, Cohn and Callahan, JJ., concur in decision; Shientag, J., concurs in opinion.

Judgment unanimously affirmed, with costs. Ho opinion.