Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D.
[82 NJSuper Page 325] Plaintiffs instituted a declaratory judgment action in the Chancery Division and sought thereby an adjudication that defendant insurance company must pay,
in addition to $3,700 in compensatory damages already paid by it, $9,500 in punitive damages awarded by a jury in the Law Division in their favor and against James Viswat, whom the insurance company had defended in the Law Division suit. The Chancery Division denied the relief requested by plaintiffs, dismissed their complaint and entered judgment in favor of defendant insurance company. Plaintiffs have appealed from that adverse determination.
On May 10, 1960 plaintiff Pietro LoRocco was injured and the automobile of his wife, Rosalie, was damaged when a vehicle, owned by Viswat Dairy, Inc. and operated by James Viswat, was driven into the rear of plaintiffs' automobile. Plaintiffs sued the corporate dairy and James Viswat, individually, charging additionally in their negligence complaint that the operator of the dairy's vehicle had acted in a "deliberate, wanton and reckless manner." There was no demand for punitive damages, as such, in the complaint.
Defendant insurance company undertook the defense of the action, since it had issued its liability policy insuring Viswat Dairy, Inc. and any other person using this vehicle with the permission of the insured. The complaint alleged that James Viswat was acting as agent of Viswat Dairy, Inc. at the time of the collision.
No specific claim of punitive damages was asserted by plaintiffs in any pretrial discovery proceeding or in the pretrial order. Paragraph 1 of the pretrial order, in which R.R. 4:29-1(b)(1) requires to be set forth a concise descriptive statement of the nature of the action, referred to the suit as "Automobile negligence action, personal injury and property damage." Paragraph 5, wherein the rule requires a statement of "all claims as to damages," stated only, "As set forth in answers to interrogatories." These answers, in turn, referred only to the usual loss of salary, hospital and medical bills, and the like. The issues were expressed in paragraph 7 of the pretrial order as: "Negligence, contributory negligence, damages, agency." Thus, the pretrial order in the Law Division, which serves the purpose, inter alia , of stating and
simplifying the issues to be litigated, classified the suit as a "negligence" action only and did not manifest in any clear manner that punitive damages were being sought. While "damages" was stated generally as an issue, punitive damages are not recoverable in mere negligence suits. Eatley v. Mayer , 9 N.J. Misc. 918, 919, 154 A. 10 (Cir. Ct. 1931), affirmed 10 N.J. Misc. 219, 158 A. 411 (Sup. Ct. 1932); 15 Am. Jur. § 281, p. 721.
In his opening statement at the trial, plaintiffs' attorney told the jury that on the occasion in issue James Viswat had driven the dairy company's vehicle into the rear of the LoRocco car. He then said,
"Now, a complaint filed in this action states that Mr. Viswat was negligent and that this negligence was wilful , it was wanton , he struck him in the rear not once, but three times." (Italics ours)
He then described the injuries sustained by Mr. LoRocco and the consequential hospital and medical care, loss of pay and expenses incurred. Though the claim was reasserted that "young Mr. Viswat was negligent , he struck this car in the rear" and that "he did this in a wanton manner," there was no reference to any right to or claim for punitive damages. Instead, plaintiffs' attorney talked only of the theory of the law "that if you have a justifiable complaint, the object of the law is to make you whole again." Such is the theory of compensatory damages.
During the presentation of their case, plaintiffs offered evidence tending to prove that defendant James Viswat had intentionally rammed the rear of their vehicle several times. Plaintiffs rested their case on the second day of the trial. When court resumed on the following morning, plaintiffs' attorney, on his own volition, moved, out of the presence of the jury, to amend paragraph 7 of the pretrial order in which the issues were specified as negligence, contributory negligence, damages and agency, "to set forth specifically exemplary or punitive damages as one of the issues in this case."
Counsel for the insurance company acting for defendants objected on the grounds that the motion came too late and that the complaint was one for negligence, containing the customary allegations thereof, despite the additional language noted above. He also claimed surprise. The trial court granted the motion to amend the pretrial order to specify a claim for punitive damages, noting the allegation of "wanton" conduct in the ...