Di Giovanni v. Pessel

• Decision Date: 22 January 1970
• Citation: 55 N.J. 188,260 A.2d 510
• Parties: Josephine DI GIOVANNI, Plaintiff-Respondent, v. Dr. J. F. PESSEL, a/k/a Johannes Pessel, Defendant-Appellant, and Dr. Joseph C. Borrus, Defendant.
• Court: New Jersey Supreme Court

Page 188

55 N.J. 188

260 A.2d 510

Josephine DI GIOVANNI, Plaintiff-Respondent, v. Dr. J. F. PESSEL, a/k/a Johannes Pessel, Defendant-Appellant, and Dr. Joseph C. Borrus, Defendant.

Supreme Court of New Jersey.

Argued Nov. 18, 1969.

Decided Jan. 22, 1970.

Charles E. Stein, New Brunswick, for respondent.

Robert M. Graham, Somerville, for appellant (Champi, Graham & Yurasko, Somerville, attorneys).

The opinion of the court was delivered by

HANEMAN, J.

This is an action against Drs. Pessel and Borrus and Carrier Clinic (Clinic) alleging that defendants were guilty of malpractice and false imprisonment in the commitment of plaintiff to the Clinic, a private sanitarium. At the end of the case, the trial court directed a verdict in favor of Clinic on all counts. The trial court also directed a verdict in favor of both doctors on the malpractice count and directed a verdict in favor of plaintiff on the false imprisonment count. The court, however, denied plaintiff compensatory damages as a matter of law on the ground that she was of unsound mind and required psychiatric help at the time of commitment and therefore suffered no actual damage. However, the court directed the jury to return a verdict for punitive damages. On appeal to the Appellate Division, that court unanimously affirmed the judgment in favor of Clinic; unanimously reversed the judgment against Dr. Borrus and by a vote of two to one affirmed the judgment against Dr. Pessel, reducing the amount thereof, however, from $5,500 to $5,000. See DiGiovanni v. Pessel, 104 N.J.Super. 550, 250 A.2d 756 (App.Div.1969). Both Dr. Pessel and plaintiff appeal as a matter of right. R. 2:2--1(a)(2) (formerly R.R. 1:2--1(b)). A motion by Dr. Borrus to dismiss plaintiff's appeal insofar as it concerned him upon the ground that the dissent did not relate to him and the time for filing a petition for certification had elapsed, was granted. Plaintiff withdrew her appeal as to Clinic at the argument. We are therefore concerned only with the trial court's action as it related to Dr. Pessel's liability.

We agree that plaintiff was not entitled to compensatory damages. The sole question remaining is whether plaintiff was entitled to recover punitive damages.

Plaintiff argues that the admitted failure of Dr. Pessel to sign the affidavit of the certificate of insanity in the presence of a notary and his failure to make a personal examination of plaintiff within ten days prior to said certificate, both of which acts are required by N.J.S.A. 30:4--29, 30, constitute a sufficient foundation for punitive damages.

Ordinarily, in tort law, damages are intended to compensate rather than to punish. In exceptional cases punitive damages are awarded as a punishment of the defendant and as a deterrent to others from following his example. The test of entitlement to such damages has been stated in Prosser on Torts, (2 ed. 1955), § 2, as follows:

'Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or 'malice,' or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton. Lacking this element, mere negligence, however 'gross,' is generally held not to be enough.' (at 9--10).

An act to give rise to right to punitive damages must be actuated by

'(1) actual malice, which is nothing more or less than intentional wrongdoing--an evil-minded act; or (2) an act accompanied by wanton and wilful disregard of the rights of another. Clearly, each case must be governed by its own peculiar facts.' LaBruno v. Lawrence, 64 N.J.Super. 570, 575, 166 A.2d 822, 824 (App.Div.1960) certif. denied 34 N.J. 323, 168 A.2d 694 (1961).

In Berg v. Reaction Motors Division, 37 N.J. 396, 181 A.2d 487 (1962), this Court said:

'Professor McCormick suggests that in order to satisfy the requirement of...