Thompson, J.c.c. (temporarily assigned).
This case involves the construction of two similar exception clauses of subscription contracts of the defendant Hospital Service Plan of New Jersey (hereinafter referred to as Blue Cross) and the defendant Medical-Surgical Plan of New Jersey (hereinafter referred to as Blue Shield).
This is an action by plaintiff Gilbert Hunt to recover certain sums allegedly due and owing to plaintiff under a Blue Cross contract (type F), effective July 1, 1956, and under a Blue Shield contract (type F), effective on the same day. Defendant Blue Cross counterclaims to recover $1,156.28, plus interest, allegedly paid by mistake of fact to plaintiff under the contract. At the argument defendant Blue Shield withdrew its counterclaim in the amount of $737.50.
On September 18, 1956 plaintiff's wife Emily sustained personal injuries as the result of an accident arising out of and in the course of her employment by the W.T. Grant Company. The injuries suffered by plaintiff's wife necessitated hospitalization and the services of several physicians. During the period of the accident and the resulting hospitalization, plaintiff's wife was covered for certain hospital, medical, surgical and obstetrical services under the subscription contracts issued to plaintiff by Blue Cross and Blue Shield.
On April 3, 1958 a judgment was entered for plaintiff's wife in the New Jersey Department of Labor and Industry, Division of Workmen's Compensation, awarding damages for the injuries sustained by plaintiff's wife in the accident of September 18, 1956. The statement of award provides:
"Unpaid medical bills: all medical and hospital treatments rendered petitioner as result of the accident of 9/18/56 were not authorized, are not compensable and not chargeable against respondent."
Defendants paid out various sums under the aforementioned contracts until they learned that plaintiff's wife had suffered her injuries as the result of the accident hereinabove mentioned.
Defendants, in denying liability under the contracts, rely upon the following clauses in their respective contracts which are substantially the same:
"Section V. Services Not Eligible:
The plan shall not be liable, nor is Plan payment eligible: * * *
(4) For any sickness, disease or injury * * * for which hospital services are in whole or in part compensable under any State * * * ...