On appeal from Superior Court, Law Division, Bergen County.
After a trial by jury, judgment was entered against defendant General Foods Corporation in favor of plaintiff Franz A. Koenig in the sum of $226,000 plus interest of $21,085 and costs, and in favor of plaintiff Margaret Koenig in the sum of $20,000 plus interest of $1,866.80 and costs. The jury found in favor of codefendant J. Kevin Moran.
Plaintiffs' case proceeded on a variety of theories. The complaint alleged in the first count that defendant Moran, as the agent of General Foods, "negligently applied a portion
of the polygraph machine around the plaintiff's left arm and thereafter applied an inordinate, unreasonable and dangerous amount of pressure to said device," resulting in a crippling injury. The second count alleged that Moran negligently inflicted personal injury by reason of "inappropriate excessive and negligent pressure," and that Moran refused to interrupt the polygraph testing when the plaintiff Franz Koenig complained. The third count alleged an intentional assault and battery. The fourth count alleged that the polygraph examination was administered in a brutal and savage manner, constituting "an intentional infliction of emotional and physical distress" constituting the tort of outrage. The fifth count alleged that Margaret Koenig had been deprived of the love, society and consortium of her husband. At the end of plaintiffs' case the trial judge dismissed the third count alleging an assault and battery and the fourth count alleging the tort of outrage.
The evidence introduced by plaintiffs showed that in the latter part of 1975 an investigation was undertaken by Emil Monda, a security officer of General Foods, to determine whether a quantity of coffee valued at $50,000 which was believed to be missing had actually been shipped or was still in the warehouse. Among those interrogated by General Foods' security personnel were three truck drivers employed by Eastern Freightways, including Koenig. The truck drivers agreed to take polygraph tests. Koenig volunteered to take the test because he wanted to clear his name. Shortly before the test was administered in February 1976 Koenig noticed that Moran, the examiner, who was an off-duty policeman, was wearing a pistol. He testified that he felt betrayed; he thought Moran was an FBI man and that meant that they thought he was a thief and had stolen the coffee. As the questioning progressed Koenig began to feel more and more guilty. After a while he noticed that his left hand had no weight and the feeling went out of his arm. He mentioned his discomfort to Moran but the test was not terminated. Koenig did not ask Moran to stop the test because he wanted
to clear his name. At the conclusion of the tests it was determined that all three of the truckers had been cleared of any culpability. However, they were not immediately informed. When Koenig arrived home he felt dizzy and weak. He did not sleep, and the next morning as he was preparing to go to work he collapsed. A few weeks later he felt pain in his left forearm. Physical examination revealed no injury. Various treatments were attempted, with little improvement. Ultimately the condition was diagnosed by a psychiatrist as a depressive reaction and by a psychologist as a severe anxiety reaction with a hysterical component and a conversion reaction, a type of hysteria. The opinion of the experts, including defendant's expert neuropsychiatrist, was that the condition was the result of plaintiff's having been subjected to the stress of the polygraph tests. One of the treating psychiatrists noted that Koenig mentioned an experience he had as a child in Germany when a Nazi official struck his father.
Defendant contends that there can be no recovery for the alleged injury under New Jersey law; that the trial judge erred in his charge to the jury; that the verdict was contrary to the weight of the evidence; that comments of plaintiffs' attorney during summation exceeded the bounds of propriety; that the trial judge erred in deciding questions of evidence, and that the amounts awarded by the verdict were excessive.
Initially we observe that plaintiffs' proofs do not sustain the allegations of the complaint. No evidence was submitted to show that excessive pressure was applied to Koenig's arm while the test was administered. In fact, that theory was specifically abandoned by plaintiffs' counsel during summation. Counsel stated:
Does it really matter worth a darn, whether the polygraph test was conducted right or whether the cuff was on too long or whether it was inflated or whether it was deflated? It was the reputation, the ...