Gierman v. Toman

• Decision Date: 23 October 1962
• Docket Number: No. L--21530,L--21530
• Parties: Walter GIERMAN, Plaintiff, v. Arthur J. TOMAN et al., Defendants.
• Court: New Jersey Superior Court

Page 18

77 N.J.Super. 18

185 A.2d 241

Walter GIERMAN, Plaintiff, v. Arthur J. TOMAN et al., Defendants.

No. L--21530.

Superior Court of New Jersey Law Division.

Oct. 23, 1962.

Gabriel Kirzenbaum, New Brunswick, for plaintiff.

J. Schuyler Huff, New Brunswick, for defendants.

SCHWARTZ, J.S.C. (temporarily assigned).

Plaintiff by pretrial discovery (interrogatory) seeks to compel the defendant to state his 'present personal net worth, including the following: (a) Describe and list bank accounts, real property, stocks, bonds, insurance, both life and casualty, and all other personal and real property; (b) Describe and list all obligations, debts and liabilities; (c) State defendant's personal taxable income, from all sources, for the years 1960, 1961 and 1962; (d) Set forth or attach copies of defendant's Federal Income Tax returns for the years 1960 and 1961.'

Plaintiff's memorandum describes the action as a 'false arrest' suit, while defendant's memorandum calls it an action for malicious prosecution. For my purpose I assume it is a malicious prosecution suit since a false arrest suit would not be sustainable where, as here, a complaint was made and a warrant issued in a regular manner and a hearing held before a magistrate. Baldwin v. Point Pleasant Beach & Surf Club, 3 N.J.Super. 284, 286, 66 A.2d 62 (Law Div.1949).

The defendant maintains the interrogatory is improper, irrelevant and privileged, and designed for the purpose of harassment. The plaintiff apparently takes the position that the information requested is relevant and appropriate on the question of punitive damages claimed.

Punitive as well as compensatory damages are allowable in malicious prosecution suits. Dombroski v. Metropolitan Life Ins. Co., 18 N.J.Misc. 240, 12 A.2d 372 (Sup.Ct.1940), affirmed 126 N.J.L. 545, 19 A.2d 678; 20 A.2d 441 (E. & A. 1940).

It appears fixed that where the damage claimed is to reputation, the injured party may establish the general Reputation of defendant's financial circumstances and standing on the question of compensatory damages and also prove the Actual pecuniary ability of the defendant as bearing upon the subject of punitive damages. Weiss v. Weiss, 95 N.J.L. 125, 112 A. 184 (E. & A. 1920), Neigel v. Seaboard Finance Co., 68 N.J.Super. 542, 173 A.2d 300 (App.Div.1961).

The information demanded is not privileged. See Neigel v. Seaboard Finance Co., supra, Finnegan v. Coll, 59 N.J.Super. 353, 157 A.2d 737 (Law Div.1960).

The scope of interrogatories under R.R. 4:23--9 is confined to 'matters which can be inquired into under Rule 4:16--2.' The latter rule specifically deals with depositions and its scope applies to interrogatories (by reference) to the extent above mentioned. Therefore, we search for the matters which may be inquired into under R.R. 4:16--2. They appear to be those matters, not privileged, which are Relevant to the Subject matter involved in the pending action, relating to the claim or defense of an examining party or of any other party and including the existence, description, nature, custody, condition and location of any books, documents, or other tangible thing and the identity and location of persons having knowledge of relevant facts. The remainder of R.R. 4:16--2 does not concern 'matters which can be inquired into' excepting disclosure of expert witnesses for a limited purpose and disclosure of insurance coverage. Neither of these relate to the question here. The rule also embraces writings which are not required to be produced unless the court otherwise orders on the basis of injustice or undue hardship. This again is of no materiality to the present issue.

The rule (4:23--9) for present purposes requires only that the interrogatory be relevant to the subject matter. Is the information sought 'relevant to the subject matter'? The subject matter of a suit is defined as the nature of the cause of action and of the relief sought. Black's Law Dictionary (4th ed. 1951). The subject matter involved in an action is to be distinguished somewhat from the narrow issues raised by pleadings. Fed.Rules of Civil Procedure, Rules 26(b), 30(a), 28 U.S.C.A. Chemical Specialties Co. v. Ciba Pharmaceutical Products, Inc., 10 F.R.D. 500 (D.N.J.1950).

Our discovery proceedings were altered with the advent of the new rules. Theretofore interrogatories were confined to matters Material to the issues, while the rule now requires Relevancy to the subject matter. The range has been widened. See Strecker v. Devine, 11 N.J.Super. 272, 78 A.2d 320, (Law Div.1951).

An unreported decision by the Atlantic County Court of Common Pleas in 1941 held that an inquiry as to defendant's 'actual wealth' and requiring completion of a financial statement was improper in an assault and battery action demanding punitive damages. The court reasoned that one of the tests applied was materiality to the Principal issue and held that wealth of the plaintiff was not so material to the principal issue as to be within the contemplation of the statute. Erickson v. Friedrich, 64 N.J.L.J. 81. In effect, the court held that the principal issue was assault and battery and that punitive damages were secondary.

Again, before the new rules, our former Supreme Court in 1924 ruled that notwithstanding punitive damages were demanded in a malpractice action, a question at the trial requiring defendant to state his fair net worth in money, being allowed over objection, was error for the reason that malice or a wrongful motive had not been established. However, said holding indicates that proof of the existence of malice lays a foundation for punitive damages, and in those situations the wealth of a defendant is a matter for consideration, although generally speaking 'The rich and poor stand alike in courts of justice.' Smith v. Corrigan, 100 N.J.L. 267, 126 A. 680 (Sup.Ct.1924).

More recently, in an action for libel demanding compensatory and punitive damages, the trial court ruled that 'Before the plaintiff could recover on his claim for punitive damages he would be required to establish express malice and since the defendant's actual wealth would only be material thereunder, his examination on that subject should not be permitted without advance Prima facie showing of such malice.' The Appellate Division dismissed an appeal without passing upon the propriety of the lower court's ruling. Warren v. Hague, 11 N.J.Super. 311, 78 A.2d 300, (1951).

The information sought appears to be relevant to the subject matter of this suit since malice is an ingredient of a malicious prosecution action and punitive damages are demanded.

Is the sequence of proof to be controlling? Should malice be first established before a party has a right to such information? The last two cited cases rest on that basis. There is no connection between a defendant's wealth and compensatory damages but there is such connection when exemplary damages are...