On appeal from Superior Court of New Jersey, Law Division, Hudson County.
Fritz, Kole and Lane. The opinion of the court was delivered by Fritz, P.J.A.D.
This is an appeal by plaintiff from a judgment for defendant on his counterclaim in a tort action tried to a jury. Plaintiff's complaint charged that defendant, a former employee, had converted or embezzled $2,000 belonging to plaintiff and entrusted to defendant. Defendant counterclaimed asserting that plaintiff had maliciously prosecuted him for the alleged embezzlement and that two of plaintiff's employees had committed an assault and battery on him in the course of investigating the disappearance of the money.
In response to special interrogatories the jury concluded that defendant had not appropriated plaintiff's money to his own use. With respect to the counterclaim it concluded that plaintiff had not filed the criminal complaint "without reasonable or probable
cause and with malice." But it held that plaintiff, "through its employees," had committed an assault and battery on defendant, and although it allowed no compensatory damages, the jury awarded $15,000 in punitive damages to defendant.
Plaintiff's motion for judgment notwithstanding the verdict or alternatively for a new trial was denied.
Plaintiff appeals, contending: (1) the trial court had no jurisdiction to entertain the counterclaim for the assault and battery since, if it occurred, it was committed by a fellow employee, wherefore defendant's only recourse was a claim for workers' compensation; (2) the award of punitive damages must be overturned since there were no compensatory damages awarded, because there was no proof that the people who committed it were acting for the corporate plaintiff and because the award was excessive; (3) the trial judge improperly abridged plaintiff's right to cross-examine defendant, and (4) it was error to deny the post-trial motions because no compensatory damages were awarded and because a juror who had voted against a finding of assault and battery voted for the award of $15,000.
Plaintiff did not raise or suggest the jurisdictional point before this appeal. It now attempts to avoid the impact of Nieder v. Royal Ind. Ins. Co. , 62 N.J. 229, 234 (1973), declaring that ordinarily we will decline to consider questions not properly presented to the trial court, by citing Estelle v. Red Bank Bd. of Ed. , 14 N.J. 256 (1954), for the proposition that jurisdiction cannot be bestowed by consent or acquiescence. While, for reasons which will appear, we are satisfied that the trial court had jurisdiction whereby we might now simply decline to entertain this belated attack, we choose not to do that. Rather we will express our views on the questions implicit in the jurisdictional issue. Our response is bifold.
First, where there is a substantial question of the applicability of the workers' compensation statutes we see no reason why the common law courts should not have jurisdiction at least to try that issue. The common law court is deprived of jurisdiction only where the workers' compensation remedy is
exclusive. Estelle is circumscribed by a factual milieu in which both parties conceded the existence of a compensable occupational disease. Its holding speaks in terms of a situation "where clearly [the employee's law court] remedy has been taken from him by the statute." 14 N.J. at 261. Not all persons injured in an industrial accident need rely solely on workers' compensation remedies for redress. For instance, infants under 18 years of age have by statute been given an election as to the forum. N.J.S.A. 34:15-10. Off-premises injuries often raise questions of compensability and therefore, at least in cases involving fellow employees, a question as to the proper forum. Where a genuine question of jurisdiction, exclusive, primary or concurrent, is involved we perceive no statutory injunction against the trial of that issue in either forum, although the parties should remain sensitive to statute of limitations problems which may exist. See Barone v. Harra , 77 N.J. 276 (1978).
Second, we are persuaded that in the circumstances of this case, jurisdiction has not been pre-empted by the workers' compensation statutes. The fact that accidental injury for workers' compensation purposes has been defined as an "unlooked-for mishap or untoward event which is not expected or designed," Dudley v. Victor Lynn Lines, Inc. , 32 N.J. 479, 490 (1960), suggests legislative recognition that the results of not all industrial occurrences need be imprisoned within the four walls of the workers' compensation hearing room. We are certain this is never more apparent than here where the jury, by its assessment of punitive damages, implicated the corporate employer as an intentional tortfeasor, a classification far removed from association with an unlooked-for mishap or untoward event. Even critics of Keller v. Pastuch , 94 N.J. Super. 499 (App.Div.1967), certif. den. 49 N.J. 372 (1967), and the suggestion of its penultimate paragraph in seeming disregard for Estelle , must ...