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Tessmar v. Grosner

Decided: January 14, 1957.

CARL H. TESSMAR, EXECUTOR OF THE ESTATE OF ERNST L. KADISCH, M.D., DECEASED, AND SHIRLEY KADISCH, PLAINTIFFS-RESPONDENTS,
v.
PAUL L. GROSNER, M.D., DEFENDANT-APPELLANT



On appeal from the Superior Court, Chancery Division.

For affirmance -- Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For reversal -- Chief Justice Vanderbilt. The opinion of the court was delivered by Oliphant, J. Vanderbilt, C.J. (dissenting).

Oliphant

[23 NJ Page 196] This is an appeal from a judgment of the Superior Court, Chancery Division, in favor of the

plaintiffs-respondents awarding to the plaintiff-executor the sum of $2,500 as damages for the conversion by the appellant of certain medical charts and records compiled and owned by the deceased Dr. E. L. Kadisch during his life and professional practice.

The action was originally brought by the plaintiffs to restrain and enjoin the defendant doctor from engaging in the practice of medicine and dermatology in Bergen County and from using the information obtained from the charts and records of the decedent, Dr. Kadisch, and praying for an accounting of all income and profits made by him from the operation of the appellant's medical practice, and to compel the defendant to pay to the plaintiffs the damages representing the loss in value of the medical practice of Dr. Kadisch. At the trial all claims for relief except that for damages for the conversion and use of the charts and records were abandoned.

Dr. Kadisch was a licensed physician and had practiced dermatology for seven years at his residence in Westwood, New Jersey. He became ill in July 1954 and was unable to practice after September 20, 1954. On that date Dr. Kadisch and the defendant entered into a written contract whereby the defendant was to take care of the practice during Dr. Kadisch's illness, seeing patients two days a week, and was to receive $40 a day for his services. Dr. Kadisch died on September 28, 1954 and thereafter the defendant continued in this arrangement until November 1, 1954, and Mrs. Kadisch collected the proceeds of the medical practice and paid the defendant the stipulated sum of $40 a day.

In discussion with the appellant Mrs. Kadisch made it clear, and it does not seem to be disputed, that she and the executor contemplated selling the house at Westwood together with the equipment, together with the list of patients to some doctor who would be interested in establishing a practice as a dermatologist, and she sought to interest the defendant in such purchase. But in the interim she negotiated with the defendant a new arrangement or contract

which was informally and orally entered into with the approval of the respondent-executor, whereby the defendant was to pay the sum of $200 a month for the use of the three-room offices in the home at Westwood, together with the equipment therein, including medicine, files and charts. It seems not to be disputed that this was just a temporary arrangement. There is a dispute as to whether it was terminable on a two months' notice or a one months' notice, and also there was a sharp conflict as to whether the agreement contained a provision that the appellant was not to engage in private practice as a dermatologist within close proximity of the Westwood location until after the house and practice were sold. Defendant denies any such collateral agreements, but they are unimportant here since the counts of the complaint relative to the restraint have been abandoned.

The gist of the agreement was that the defendant was to carry on the practice heretofore carried on by the deceased Dr. Kadisch at this location, and under the terms of the contract he simply had to pay $200 a month. Incidental and as part of this agreement the defendant, apparently with Mrs. Kadisch's approval, sent out cards in December 1954 announcing he was taking over the practice of Dr. Kadisch at the office in Westwood. At that time he sent out about 1,000 announcements, but apparently there were more names in the charts than those.

In the meantime Mrs. Kadisch was attempting to sell the home and office in Westwood, together with the equipment, and in addition to the defendant she had discussions with several other practitioners in the field of dermatology, but none of them made her a firm offer. The defendant seems to have taken a passive and negative attitude as to his interest in the property and practice; meanwhile, starting some time early in December, he had his secretary make a copy of the chart cards that were in Dr. Kadisch's office. It is significant that he only copied the names and addresses of the patients, together with their telephone numbers, the age of each patient and whether or not the patient

was a good or bad payer. He denied any interest in their ...


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