Opinion
02-24-1927
JACOBS et al. v. COSTANZA.
Knight & Orlando, of Camden, for the motion. Walter S. Keown, of Camden, opposed.
Action by Helen Jacobs, by and through her husband and next friend, Stephen Jacobs, and another, against Joseph Costanza. On motion to set aside an order made for bail. Order set aside, and bail discharged.
Knight & Orlando, of Camden, for the motion.
Walter S. Keown, of Camden, opposed.
KATZENBACH, J. On November 15, 1926, the defendant was held to bail in the sum of $1,000 to answer unto the plaintiffs in an action at law. The order was signed by a Supreme Court Commissioner. In the order it is stated that it was sufficiently proved that the defendant had committed an assault and outrageous battery upon the plaintiff Helen Jacobs, by grabbing her, attempting to kiss her, squeezing her, patting her cheek, and pinching her breast, and that such acts were given with force and violence. The affidavit upon which this order was based discloses no special cause for holding the defendant to bail. There is in the order no mention of any special cause for holding the defendant to bail. The defendant now moves to set aside the order. The grounds urged are (1) that the affidavit does not set forth facts showing the commission of an outrageous battery, and (2) that the affidavit does not mention any special cause for which the defendant should be held to bail.
In the case of Gardner v. Marcocci, 43 N. J. Law J. 338, Mr. Justice Campbell held that an outrageous battery had not been committed where the defendant struck the plaintiff over her eye with his right hand, on which he wore a ring with a diamond chip in it. and kicked her in the ribs and stomach, and pulled her hair, and caused her to bleed profusely from the mouth. This decision was rendered on October 2, 1920. It has not been questioned. In view of the decision in this case the affidavit in the present case is insufficient to establish what is known in law as an outrageous battery.
The second ground urged by the defendant to set aside the order for bail is also well taken. In 1903 there was embodied in section 56 of the Practice Act (P. L. 1903. p. 550 [3 Comp. St. 1910, p. 4068, § 56] the words:
"But no such order [order to bail] shall be made unless: * * * The proof establishes special cause as heretofore for holding the defendant to bail."
Mr. Justice Voorhees, in the case of Hufty v. Wilson, 78 N. J. Law, 241, 74 A. 137, said:
"In the revision of 1903 of the Practice Act the abovementioned section 55 [2 Gen. St. 1895, p. 2542] has been incorporated in section 56, which prescribes the law for the issuance of a capias ad respondendum in actions of tort, and forbids its use 'except upon proof to the satisfaction of the judge of the grounds upon which bail is required and thereupon the * * * judge * * * shall make an order for bail in such sum as he shall under the circumstances of the case think proper and such sum shall be indorsed on the capias in words at length; on filing the proof and said order a capias ad respondendum shall be issued, but no such order shall be made unless * * * the proof establishes special cause as heretofore for holding the defendant to bail.'"
This decision has been followed in the recent cases of Vitalano v. Roffio (N. J. Sup.) 130 A. 815 (November 2, 1925); Hand v. Nolan (N. J. Sup.) 136 A. 430 (decided August 27, 1923). For a long time the policy of our law has been to discourage imprisonment in civil actions. The necessity of establishing a special cause for holding the defendant to bail is in line with this policy of the law. While prior to the revision of the Practice Act in 1903 a case of outrageous battery or mayhem seems to have been an exception to the rule, yet the insertion in the fifty-sixth section of the Practice Act of 1903 of the clause above referred to seems to me to have placed an action for an outrageous battery or mayhem in the same class as other cases where a special cause must be established in order to hold a defendant to bail.
This view results in setting aside the order to hold to bail in the present case. The bail will be discharged. The action may proceed as if commenced by summons. Upon presentation of an order to this effect I will sign it