Boesch v. Kick

• Court: New Jersey Supreme Court
• Writing for the Court: BLACK, J.
• Citation: Boesch v. Kick, 97 N.J.L. 92, 116 A. 796 (N.J. 1922)
• Decision Date: 04 April 1922
• Parties: IRENE L. BOESCH, PLAINTIFF, v. EMILE F. KICK, DEFENDANT

116 A. 796

BOESCH

v. KICK.

Supreme Court of New Jersey.

April 4, 1922.

(Syllabus by the Court.)

Action by Irene L. Boesch against Emile F. Kick and others. On rule to show cause. Rule discharged.

Argued November term, 1921, before SWAYZE, BLACK, and KATZENBACH, JJ.

Samuel Press and Howard MacSherry, both of Newark, for plaintiff.

Heine, Bostwick & Bradner, of Newark, for defendants.

BLACK, J. In this case there were three defendants, including two physicians. The trial resulted in a verdict in favor of the two physicians and against the defendant Kick for $8,500. The defendant Kick obtained a rule to show cause, reserving all exceptions taken at the trial. The reasons upon which the defendant rests the motion for a new trial are: The verdict is not sustained by the weight of the evidence, and the verdict is excessive. Hence the problems presented to the court for solution. The charges laid against the defendant in the complaint are: First, a conspiracy to incarcerate and confine the plaintiff in an institution for the insane; and, second, a malicious prosecution resulting in false imprisonment, by a malicious charge of insanity. The answer is a denial, with a defense that as the plaintiff had been adjudged insane, she could not maintain the action, except by guardian or next friend. The adjudication against the plaintiff operates as res adjudicata with respect to the allegations contained in the complaint.

The judge at the trial charged the jury: First, the burden of proof was upon the plaintiff to show by the greater weight of the evidence that the charge was groundless, that is, there was no probable cause warranting the acts of the defendants; second, the principle upon which the action is founded is that a tort, or wrong, was committed. The action can be sustained against one of the defendants, as well as against more than one, and the gist of the action is the damage done, and not the conspiracy; third, when a person is so far disordered in mind as to be dangerous, or may become dangerous, to himself or to others, he may be restrained of his liberty.

Our inquiry is not primarily with the legal questions raised in the record. They are all reserved in the rule. We are to inquire and ascertain whether the verdict, as found by the jury, is sustained by the weight of the evidence on the legal theory upon which the case was put to the jury. The record in this case is voluminous, containing something over 700 pages. The trial consumed eight days. The questions involved are far-reaching in their application and of much concern to the parties interested. The plaintiff called 16 witnesses, the defendant 12. The plaintiff had 6 exhibits, the defendant 13. It would serve no useful purpose and be of no profit to the parties to review the evidence in detail. It is not necessary for the purpose in hand. It may, however, be desirable to point out some of the undisputed evidence. There is no controversy over the fact that the plaintiff was temporarily committed on December 26, 1917, to the Essex County Hospital for the Insane at Overbrook, by an order of the judge of the juvenile court of Essex county under Act P. L. 1916, p. 182. The order was made upon the certificates signed by the two physicians, who were parties defendant in the action. The defendant arranged the meeting at which the plaintiff was examined by the physicians. She was led to believe by the defendant proceedings would be taken to have her husband committed to an asylum. The defendant on the pretense that they were going to the asylum to make arrangements for the commitment of her husband induced the plaintiff to go with him in an automobile. When they reached the asylum she was left there by the defendant. Subsequently, after several days, at the request of her husband, she was permitted to leave, but was not discharged. The plaintiff called several witnesses, 10 or 11, who testified to conversations with her, extending over a number of years, tending to show her mental condition which seemed to them to be normal. This testimony was competent. State v. Morehous (Ct. of Err. & App. No. 1, November Term, 1921) 117 Atl. 296. Nowhere in the record is there any testimony or even a suggestion, that to permit the plaintiff to be at liberty would imperil her own safety or the safety of the public, or that she might become dangerous. The defendant's testimony may be searched in vain for any such suggestion as a ground for his participation. Nowhere does the defendant make denial of his participation in sending the plaintiff to the asylum. He testified as a witness, and admits that he had a part in it. He gave a full account of the entire transaction. His evidence justifies the verdict found by the jury. His testimony is:

That he was 58 years old, a manufacturing chemist. He knew the plaintiff 10 years. He had seen her from 1915 to 1917, probably 400 or 500 times. "She would meet me every morning at the Central Railroad Station in Newark, to talk over her troubles. She wrote me letters for 3 years, about four a week. She talked to me about Boesch, some of the stockholders, about her business, her life, her marriage, about her children and everything that it is possible for a woman to bring up. I never had any business relations with her, none whatsoever. All the money I gave to Mrs. Boesch was for loans. She asked me for loans, and Boesch would tell me to give them to her. No part of Mrs. Boesch's money was invested in any part of my business. I am responsible for Mr. Boesch's position with the Amalgamated Dye Stuffs Chemical Company. I was the best friend Mr. Boesch had in Newark. She regarded me as the best friend she had in Newark; she always regarded me as a very good friend of hers, because she would always come to me, when she wanted anything, when she got into difficulties financially. I always treated the woman as a woman of unsound mind from* the beginning, and her husband told me that I treated her as I would anybody that was sick. One of her delusions was that Mr. Boesch was crazy, and should be put in an asylum: that subject came up very frequently. Boesch said, 'It's time to put her away.' Boesch told me, 'Now if she is so insistent upon my going to the asylum,' he said, 'we'll put her away.' He said, 'It will cost a lot of money.' I had to do with it simply as a friend of his. Then I called up my family physician. He said, 'You had better get the best authorities on mental incapacity.' I then called up Dr. Beling and Dr. Hicks. I went to Dr. Beling. I told Dr. Beling I had a lady that was insane, and she...