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Friedman v. National Casualty Co.

Decided: February 7, 1945.

BENJAMIN FRIEDMAN, PLAINTIFF-RESPONDENT,
v.
NATIONAL CASUALTY COMPANY, DEFENDANT-APPELLANT



On appeal from the Second District Court of the City of Newark.

For the appellant, McCarter, English & Egner (Verling C. Enteman and Charles Howard, of counsel).

For the respondent, Herbert J. Kenarik.

Before Justices Parker and Colie.

Colie

The opinion of the court was delivered by

COLIE, J. Benjamin Friedman brought suit against the National Casualty Company upon a state of demand alleging that it issued to him a policy insuring him against loss, accident or illness; that he sustained a loss on April 10th, 1943, and became entitled to benefits thereunder, which, upon demand, the company refused to pay. From the judgment in favor of the plaintiff entered by the District Court Judge, sitting without a jury, the defendant company appeals.

The facts are that the respondent was employed by Forstmann Woolen Mill as a weaver. On April 10th, 1943, he fell in front of his home and injured his knee. The following day his personal physician was called in and rendered treatment and the fact is, as conceded in the appellant's brief, that he

was unable to go to his work until May 17th. On this date, he returned to his work and continued therein until July 3d, 1943. The nature of his duties required him to be on his feet during working hours and in connection with attending to four weaving machines, it was necessary for him, on occasion, to bend down to within a few inches of the floor. He was not able to do this, nor was he able to remove the roller attached to each of the machines and which weighed from 65 to 100 pounds, but he could do so with the assistance of a fellow-employee. As to this period, the District Court Judge found as a fact that he was partially disabled in that he could not perform "one or more daily duties pertaining to his occupation." This finding of fact is supported by the evidence and therefore unassailable on appeal. On July 3d, the condition of his injured knee, in the opinion of his physician, required that it be immobilized and as a result, the leg was placed in a cast with the result that he was unable to perform any work until August 16th. As to this latter period from July 3d to August 16th the trial court held that the respondent was totally disabled and therefore entitled to benefits under the policy on that basis.

Appellant urges us to reverse the judgment, stating in its brief that "the trial court improperly construed the policy involved in this suit and erred in determining that the plaintiff was entitled to the benefits of partial disability for the period from May 17th, 1943, until August 16th, 1943." The District Court did not find partial disability from May 17th to August 16th, as stated in appellant's brief. He found partial disability only until July 3d and the evidence sustains that finding.

The main controversy arises out of the trial court's holding that the period from July 3d to August 16th was a period of total disability within the terms of the policy so as to entitle the respondent to payment on the basis of total disability.

The pertinent sections of the policy are paragraphs A and B hereinafter set forth at length:

"Paragraph A. Accident Indemnity for Total Disability. At the rate of One Hundred Fifty ...


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