On appeal from the former Supreme Court.
For reversal: Chief Justice Vanderbilt and Justices Case, Heher, Oliphant, Wachenfeld, Burling, and Ackerson. For affirmance: None. The opinion of the court was delivered by Case, J. Justice Heher concurred in the result.
National Casualty Company, defendant below, appeals from a judgment entered in the former Supreme Court upon a directed verdict for the plaintiff at the Essex Circuit. The suit was to recover for disability from disease under an indemnity policy covering plaintiff's decedent.
Appellant's first point is that the evidence upon whether the insured's illness was contracted and began after the policy had been in continuous force for ten days after its date was such that plaintiff's motion for a directed verdict should have been denied and defendant's motion for a directed verdict should have been granted. The point is predicated upon a policy provision hereinafter set forth and arises out of defendant's eighth and tenth defenses, made parts of the amended answer. Plaintiff argues that upon the principle of res judicata defendant is estopped by the dismissal of a bill in Chancery wherein the latter sought to rescind the policy on the ground of fraud. The answer in the present lawsuit originally contained twenty-two defenses, of which the eighteenth, nineteenth, twentieth, twenty-first and twenty-second alleged fraudulent representations in the application. The enumerated defenses were, on plaintiff's motion, struck as res judicata by reason of the Chancery decision. Those defenses then passed out of the case as did also the charge of res judicata. The attack upon the defenses presently under discussion is now made for the first time and must, of course, fall for that reason. In addition, there
is not identity in the subject matter or the issues. The Chancery suit grounded in fraud; the present action grounds in a contractual provision upon which, it is alleged, the right of action depends. It appears from the proofs that the rather unusual disease from which the insured suffered might even have been present without his knowledge. The absence of fraud does not entitle plaintiff to prevail if the factual structure of the case does not come within the policy coverage.
The policy was dated September 28, 1942, and provided that it should cover only "illness that is contracted and begins after this policy shall have been maintained in continuous force for ten days from its date." The testimony of Dr. Gorten was that in his opinion, based upon a physical examination made in March, 1943, the insured had been suffering from the disabling ailment since March, 1942. On the other hand there was proof that the illness began within the policy period. The fact as to when the illness began was for the jury and not for determination by the court.
It is next said that the notice of sickness was not seasonably given and that, therefore, plaintiff's motion for a directed verdict should have been denied and defendant's motion for a directed verdict should have been granted. The policy provisions were:
"4. Written notice * * * of sickness on which claim may be based must be given to the Company * * * within ten days after the commencement of disability from such sickness.
"5. * * * Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible."
There was evidence from which, with the inferences of fact legitimately to be drawn therefrom, the jury could have found:
The policy was written September 28, 1942. In December of 1942 Epstein injured his thumb with his car door. He was attended by his family physician, Dr. Michael J. Kaufman, who was dead at the time of the trial. The doctor put the finger in a splint and later bandaged it. Epstein reported the injury to the company and was paid $75 for the resulting disability. In March, 1943, Dr. Kaufman, upon removing the bandage, [1 NJ Page 414] observed a condition which was not then diagnosed but which caused him to advise Epstein to go to Dr. Manfred L. Gorten, a specialist in neurology and psychiatry and also to go to a hospital for a check up. Epstein complied. He went to and was examined by Dr. Gorten on March 16, 1943. He was at the Beth Israel Hospital from March 22 to March 27, 1943, and while there he received professional care from Dr. Gorten. Dr. Gorten's diagnosis was that the patient was suffering from amyotrophic lateral sclerosis with bulbar paresis. There is nothing to indicate that Dr. Gorten communicated the diagnosis to Epstein. The inference is that he did not, for his testimony is that he reported his opinion about the case to Dr. Kaufman and to no one else. Epstein did not feel well; he remained mostly about his home or garden. On April 29, 1943, and again on May 18, 1943, at the suggestion of his doctor, he called upon and was examined by Dr. Charles Englander, a pathologist, who, also, diagnosed the disorder as amyotrophic lateral sclerosis but did not so inform Epstein. The doctor permitted the patient to believe that he was suffering from a nervous disorder but sent the correct diagnosis to the referring physician. At that time Epstein had some weakness and clumsiness of his hands and atrophy of the small muscles of his hands and some small twitchings as well as reflex changes, but he could walk back and forth and up and down stairs with no apparent irregularity in his gait. He looked relatively well. His blood pressure, heart, lungs, speech, eyebrows and pupils were normal. The was nothing in his condition to prevent him from talking to people in his customary pursuit of selling merchandise. He did not entirely discontinue his attendance at his place of ...