On appeal from the Superior Court, Law Division, Mercer County.
Dreier, Shebell and Stern. The opinion of the court was delivered by Stern, J.A.D.
Defendant bank wrongfully dishonored*fn1 two checks plaintiff wrote to his wife drawn on plaintiff's account with defendant bank. Soon after the checks were dishonored, plaintiff received calls from his wife, from whom he was separated, and from his sister, parents, children and best friend inquiring why he was not providing the necessary means to purchase food for his family. Plaintiff alleged that these telephone calls caused him emotional distress. The checks were dishonored on January 14, 1984 and March 9, 1984 because Mrs. Buckley did not have an account with the bank. The bank claimed it was attempting to induce those who cash checks at its branches to open accounts and that there was no malice directed at plaintiff or his wife.
Plaintiff's complaint contends that defendant "intended to maliciously inflict extreme emotional distress" on plaintiff and his wife by dishonoring plaintiff's checks (first claim for relief); that defendant committed "fraudulently false and malicious actions" by not honoring the checks (second claim); that defendant "breached its contract with plaintiff, and dealt in bad faith with plaintiff in a total reckless and wanton disregard of plaintiff's obligations" (third claim); that "[d]efendant invaded the plaintiff's right to privacy" (fourth claim), and that "[d]efendant negligently inflicted emotional distress upon plaintiff" (fifth claim). Based upon defendant's alleged conduct, plaintiff demanded "compensatory damages, consequential damages, special damages, punitive damages, reasonable attorneys fees, costs of suit, and interest."
At the close of the evidence, defendant unsuccessfully moved to dismiss count one, the claim in which plaintiff sought recovery for intentional infliction of emotional distress. The judge, however, dismissed plaintiff's claims for relief based on fraud (count two) and invasion of privacy (count four). The parties stipulated that the claim for negligent infliction of emotional distress (count five) be dismissed, and the judge granted defendant's motion to strike plaintiff's claim for punitive damages.*fn2
The jury returned a unanimous verdict in favor of plaintiff for $25,000. Defendant's subsequent motion for judgment notwithstanding the verdict or, alternatively, a new trial, was denied. The judge also declined to grant a remittitur and denied plaintiff's application for prejudgment interest.
Defendant appeals from the denial of its motion for judgment notwithstanding the verdict or a new trial. Plaintiff cross-appeals from the judge's failure to charge the jury as to punitive damages, dismissal of the cause of action for fraud and denial of prejudgment interest.
Plaintiff opened a personal checking account with defendant in 1975. Plaintiff and his wife Linda also obtained a mortgage with defendant on their marital residence. From the time that plaintiff opened the checking account, Linda had numerous transactions with defendant, most of which took place at the Ewing branch office.
In 1981, plaintiff and his wife separated and entered into a consent agreement whereby plaintiff would pay his wife $150 each week for food and support for herself and their children.
At the beginning of each month, plaintiff wrote checks to his wife for the entire month, each check containing the date of a different Friday. Plaintiff testified that he called a representative of defendant, and the representative stated that the defendant's employees would honor these checks:
I informed Mrs. Watson and Mrs. Taylor and Brad Nozick -- now, those are three employees who work with the Trenton Savings Fund. Mr. Nozick was one of the people who helped me in the very beginning with my accounts, and I had a very good relationship with Mr. Nozick. Our agreement from day one with this account that I'm talking about was that if at any time there was ever a problem with the account, Brad would not bounce a check on me, he would call me up and then I would make good on that particular check. That was our agreement.
As part of the consent agreement, plaintiff wrote a $150 check to his wife dated January 13, 1984. On Saturday morning, January 14, Linda endorsed the check and presented it for payment at defendant's Robbinsville branch. The teller refused to cash the check even though at the time plaintiff had more than $900 in the account. Joseph Merz, one of defendant's vice presidents, testified how the teller described the events to him:
She told me that the check was presented by Linda, she asked her first do you have an account, Linda said, no, she said, do you have any identification, Linda said no, she said, I can't cash it for you, and Linda said, no problem, I'll go to the Ewing branch and cash it tomorrow.
In his complaint, plaintiff alleged that defendant's branch manager recognized his wife at that time, but nevertheless still refused to cash the check. While defendant admitted this in its answer, Merz testified that the ...