Zullo v. Central Railroad Co. of NJ

9 N.J. Super. 49 (1950)

74 A.2d 626

EDWARD A. ZULLO, PLAINTIFF-RESPONDENT, v. CENTRAL RAILROAD CO. OF NEW JERSEY, WALTER P. GARDNER, TRUSTEE, DEFENDANT-APPELLANT.

Superior Court of New Jersey, Appellate Division.

Argued July 24, 1950.

Decided July 27, 1950.

*50 Before Judges McGEEHAN, COLIE and EASTWOOD.

Mr. Huyler E. Romond argued the cause for appellant (Mr. John E. Toolan, attorney).

No argument on behalf of respondent.

PER CURIAM.

The defendant appeals from a judgment of one thousand dollars in favor of the plaintiff and against the defendant, which was entered in the Law Division of the Superior Court upon a jury verdict.

The contention is that the court below erred in its charge when it instructed the jury that it could include punitive damages in its verdict. The suit arose out of an assault and battery committed upon plaintiff by a gateman employed by the defendant. There was no evidence that the employer participated in the wrongful act of the servant, either expressly or impliedly, by conduct authorizing or approving it, either before or after it was committed. Therefore, the defendant could not be held in punitive damages. Wendelken v. N.Y., S. & W.R.R. Co., 88 N.J.L. 270 (E. & A. 1913).

The judgment is reversed and a new trial granted.