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Stripp v. United Casualty Co.

Decided: April 1, 1940.

FLORENCE STRIPP, PLAINTIFF-APPELLEE,
v.
UNITED CASUALTY COMPANY, A CORPORATION, DEFENDANT-APPELLANT



On appeal from the East Orange District Court.

For the plaintiff-appellee, Sidney C. Swirsky (Abraham L. Friedman, of counsel).

For the defendant-appellant, Sarbone & Sarbone.

Before Justices Trenchard, Case and Heher.

PER CURIAM.

Plaintiff brought this suit in the District Court against defendant to recover hospital and surgical expenses pursuant to a policy of insurance issued by the defendant to her.

The testimony as disclosed by the state of the case tends to show, among others, the following matters of fact:

On September 13th, 1938, plaintiff signed the application for a policy. As a result there was issued to her by defendant a policy dated September 17th, 1938. Plaintiff also requested the issuance of the surgical rider, but because the agent did not then know whether such a rider was available, the rider was not issued until October 13th, 1938. On the evening of November 23d, 1938, plaintiff complained of pains in the lower right side of her abdomen, and she visited Dr. Brown, who diagnosed it as acute appendicitis. She went to the hospital the next day; was operated upon the following day and her appendix removed. There is no dispute that if plaintiff is entitled to recover, the amount is $140 plus interest. The defendant insurance company having refused to pay the claim, plaintiff brought this suit, and the District Court judge, sitting without a jury, rendered judgment in her favor in that amount, and defendant appeals.

We now deal with the points made in the defendant's brief which seem to be based upon grounds of appeal.

We believe that the conclusion of the trial judge that the sickness was contracted after the policy was in force for more than thirty days, was amply supported by the evidence.

The policy insured "against loss due to expense of Hospital residence * * * necessitated by sickness which is contracted and begins while this policy is in force and after it

has been maintained in continuous force for not less than thirty consecutive days from its date." As we have pointed out, this policy was dated September 13th, 1938, and therefore the coverage began October 13th, 1938. Plaintiff felt severe pains on November 23d, 1938, and "she had never felt such pains before." Dr. Brown, plaintiff's family physician, testified that "I diagnosed it as acute [appendicitis]. That is why I operated on her so soon," and this opinion was confirmed by the medical expert for the plaintiff.

Considered in the light most favorable to the appellant, it is apparent that there was presented to the trial judge conflicting testimony upon which to make his findings, and those findings have been made in favor of the plaintiff, this court will not disturb them. Parnes v. ...


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