(dissenting).
While I concur in that portion of the opinion of the court relating to the inappropriateness of a “motion for directed verdict” in cases tried by the court without a jury, I do not agree with the decision nor with the effect of a motion under Rule 37(b) of the Municipal Court rules.
The applicable part of this rule provides:
“After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.”
Prior to March 19, 1948, this part of the Municipal Court rule was identical with a portion of Rule 41(b) of the Federal Rules of Civil Procedure. Effective on the date mentioned, the federal rule was amended to read as follows:
“After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that Upon the facts and the law the plaintiff has shown no right to relief. In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).”
The Municipal Court up to the present time has not adopted a similar amendment.
Prior to the amendment of the federal rule, three federal circuit courts of appeal held that, as the judge was the trier of the facts, in such a situation his function was not the same as on a motion to direct a verdict, where the jury was the trier of the facts, and that the judge in deciding such a motion in a non-jury case might pass on conflicts of evidence and credibility, and if he performed that function of evaluating the testimony and granted the motion on the merits findings were required.1 A statutory three-judge federal court sitting in this federal jurisdiction in an opinion by the present chief judge of the United States Court of Appeals for the District of Columbia Circuit, Judge Stephens, ruled similarly.2 The third circuit, however, held that on such a motion the function of the court was the same as on a motion to direct in a jury case, and that the court should decide whether there was evidence which would support a judgment for the plaintiff, and, therefore, findings were not required by Rule 52.3 This court has previously made rulings similar to those in the third circuit, and in such decisions made since I became a judge of this court I 'have joined.4 The opinion in one of such cases *485following this rule was written by me.5 All of these decisions, however, were rendered priod to the amendment of the federal rule.
According to an explanatory note made by the Advisory 'Committee on rules for civil procedure, 1947 revised edition, “The added sentence in Rule 41(b) (Federal Rules of Civil Procedure) incorporates the view of the Sixth, Seventh and Ninth Circuits.” This statement of the committee is supported by 3 Moore’s Federal Practice, 1938, Cum.Supplement § 41.03, under “Page 3045”; Commentary, The Motion to Dismiss in Non-Jury Cases, 1946, 9 Fed.Rules Serv., Comm.Pg. 41b.l4.
While it might be argued that the federal amendment not having been adopted by the Municipal Court, the previous interpretation of the rule should be adhered to, I am of the opinion that the amendment is one of interpretation rather than one of new legislation, and thus that the interpretation previously followed by the ninth, sixth and seventh federal circuits should now be followed by this court, particularly since the same rule has been approved by a three-judge federal court in our own jurisdiction. While those decisions are not binding on this court, they are highly persuasive and, by the adoption of the new amendment, they have received the sanction of the rule-making authority of the federal courts.
The following statement of the view adopted by the ninth, sixth and seventh circuits was made in the 1947 cumulative supplement to Moore’s Federal Practice Under the New Federal Rules, Vol. 3, p. 56:
“The Third Circuit holds that the defendant’s motion raises a question of law only. But this disregards the wording of Rule 41(b) that the grounds of the motion are that ‘upon the facts and the law the plaintiff has shown no right to relief.’ Since the Rules were designed to expedite the trial of cases it is certainly within their purpose that the court should have the power to dispose of the case at the first opportunity, and it is entirely appropriate that tile court have the power to weigh the evidence, consider the law, and find for the defendant at the close of plaintiff’s 'Case. This does not mean that it will always be advisable for the court to do so. The case, at that point, may be very close and in the interest of obtaining a full and complete picture for both the trial and the appellate court it may be advisable to deny the defendant’s motion, put the defendant to its proof, and then decide the case when all the evidence has been adduced.”
I note, of course, lhat it is an important feature of the now existing federal rule that in a case where the court, sitting without a jury, dismisses an action on the motion of the defendant at the close of plaintiff’s case, the court is required to make findings of fact ami conclusions of law. Since the adoption of the Federal Rules of Civil Procedure this has álways been tlie rule in United States district courts. This part of the federal rules was not followed by the Municipal Court in spite of the mandate contained in the Act creating the court providing that the rules of that court “shall conform ás nearly as may be practicable to the forms, practic’, and procedure now obtaining under the Federal Rules of Civil Procedure.”6 The judges of that court felt that, because of the very large number of cases tried, it was not practicable for them to make written findings of fact and conclusions of law in all non-jury cases. It might, however, be entirely practicable to make such findings in the comparatively small number of cases covered by the rule under discussion. Certainly it would be better practice. In view of the comparatively simple issues in the present case and in view further of the fact that the trial court made a general finding for defendants, I do not believe that the lack of a specific finding of fact should change the result herein.
Applying the foregoing principles to the present case, I think that the evidence sufficiently supports the trial court’s finding for defendants. Stripped to essentials, the evidence was as follows: Plaintiff testified *486that he was engaged to work tinder an oral agreement by which he was to receive a commission of 15% on advertising sold for defendant, that he sold approximately $75,-000 worth of advertising but had only been paid $2,330, or less than he was entitled to. He also testified that on the last day of his employment defendant Eaton told him that no further commissions were due because the company had not collected any monies in excess of what had already been paid him on his drawing account. As opposed to this testimony, defendant Eaton, called as a witness by plaintiff, admitted that the original agreement was as stated by plaintiff but that there was a verbal understanding that collection of advertising fees had to be made before the commissions became due, and that when plaintiff resigned he was given $60 in full payment of what was owing him under this arrangement.7 There was no evidence of any collections since plaintiff’s resignation. If the trial court believed defendant’s testimony, as it obv • ously did, then no balance was owing to plaintiff and the finding for defendants was justified if not compelled. I conclude, therefore, that the judgment should be affirmed.
Young v. United States, 9 Cir., 111 F.2d 823; Gary Theatre Co. v. Columbia Pictures Corporation, 7 Cir., 120 F. 2d 891; Bach v. Friden Calculating Mach. Co., 6 Cir., 148 F.2d 407.
United States v. United States Gypsum Co., D.C.D.C., 67 F.Supp. 397, reversed on other grounds 333 U.S. 364, 366, 68 S.Ct. 525.
Federal Deposit Ins. Corporation v. Mason, 3 Cir., 115 F.2d 548; Schad v. Twentieth Century-Fox Film Corporation, 3 Cir., 136 F.2d 991.
Carow v. Bishop, D.C.Mun.App., 50 A.2d 598; Garrett v. Jamison, D.C.Mun.App., 50 A.2d 602.
Rieffer v. Hollingsworth, D.C.Mun. App., 52 A.2d 632, decided April 25, 1947.
Code 1940, Supp. V, § 11 — 756(b).
Defendant Eaton was called by plaintiff “as plaintiff’s witness for the purpose of cross-examination.” Such practice is permitted by Municipal Court Rule 39 <a), based upon Rule 43(a), Federal Rules of Civil Procedure. The method of producing this witness, however, did not prevent the trial court from accepting his testimony .if it believed it to be true.