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Kievit v. Loyal Protective Life Insurance Co.

Decided: April 10, 1961.

DANIEL KIEVIT, PLAINTIFF-APPELLANT,
v.
LOYAL PROTECTIVE LIFE INSURANCE COMPANY, ETC., DEFENDANT-RESPONDENT



For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

The Appellate Division affirmed the judgment which the Law Division had entered in the defendant's favor. See Kievit v. Loyal Protective Ins. Co., 64 N.J. Super. 537 (App. Div. 1960). We granted certification on the plaintiff's application. 33 N.J. 331 (1960).

In 1952 the plaintiff applied to the defendant for an accident insurance policy. He was then just short of 48 years of age and his answers on the application indicated that he was in good health and that he was a carpenter. As of March 21, 1952 the defendant issued its "Form 92 -- Time Accident Policy" which states on its outside and on the top of its first page that it is "Non-Cancellable and Guaranteed Renewable to Age Sixty-five" and that it "Provides Indemnity for Loss of Time by Accidental Bodily Injuries, and for Loss of Life, Limb or Sight by Accidental Means to the Extent Herein Provided." On page 1 of its policy the defendant states that it will pay to the plaintiff a monthly indemnity "against loss resulting directly and independently of all other causes from accidental bodily injuries" sustained after the date of the policy and while it is in force. On page 2 of its policy there is a provision captioned "Reductions and Exceptions" which sets forth, in part, that the insurance under the policy shall not cover "disability or other loss resulting from or contributed to by any disease or ailment." Where the accidental bodily injuries result in

total disability the indemnity stipulated in the policy is $200 monthly for a period not exceeding 60 months.

The policy is now in force and was in force on August 19, 1957, when the plaintiff was accidentally struck over the left eye by a "two by four" board. Thereafter he developed tremors and became totally disabled. The defendant made disability payments under the policy until December 23, 1957 and then discontinued further payments on the ground that the plaintiff's disability did not result directly and "independently of all other causes" from accidental bodily injuries but was contributed to by a "disease or ailment." In November 1958 the plaintiff filed his complaint in the Law Division seeking the accrued disability payments and the defendant filed its answer denying liability. After a pretrial order was entered the matter came on for trial before a Superior Court judge sitting without a jury. The plaintiff and Dr. Winkler testified as witnesses for the plaintiff and Dr. Policastro testified as witness for the defendant. Their testimony was to the following effect:

The plaintiff was in good health and worked steadily for many years prior to the accident on August 19, 1957. On that day he was struck by the "two by four," went down on his knees and "got up a little groggy." He was cut over his left eye and "had a pain in the neck and in the spine and the right shoulder" but continued working through the day. On the following morning he could hardly move his right arm but returned to work and worked the "whole week till Friday." Each day he "kept getting worse" and "started to shake" and on Friday he went to see Dr. Manrodt in Pompton Plains. Dr. Manrodt "worked on" his shoulder and prescribed pills and when Dr. Manrodt later became ill he referred the plaintiff to Dr. Brown. The plaintiff testified that at that time his "whole right side, the leg and right arm shook" and that Dr. Brown's treatment was "about the same as Dr. Manrodt." Thereafter the plaintiff was examined and treated by other doctors, was in St. Joseph's Hospital, Paterson, from November 26,

1957 to December 10, 1957 and was examined at the hospital by Dr. Winkler, a qualified physician who specializes in neurology, neuropsychiatry and neurosurgery. Dr. Winkler examined the plaintiff on several occasions during his stay at the hospital and thereafter at the doctor's office on December 20, 1957, March 5, 1958 and September 26, 1959.

Dr. Winkler testified that when he first examined the plaintiff at the hospital on November 28, 1957 he found a "rapid tremor of the right extremities, more marked in the upper" and that "the tremor was present at rest and on volition." He could find no organic disease and was under the impression that he was "dealing with a conversion hysteria secondary to the accident." The plaintiff had the tremor when he was discharged from the hospital on December 10, 1957 and when Dr. Winkler examined him at his office on December 20, 1957. At that time the doctor noted that the plaintiff "had marked difficulty in maintaining his balance while standing or walking and complained of dizziness." When the doctor examined the plaintiff on March 5, 1958 he found there was "essentially no change in the picture from the previous examination." When he made his last examination on September 26, 1959 the plaintiff "appeared somewhat better" and said that his tremor "came and went." The doctor testified that he "found no evidence of disease other than the conversion hysteria" and no evidence of "previous psychiatric illness." He stated unequivocally that he found nothing to indicate that the plaintiff was suffering from "any disease" at the time of the accident and that in his opinion the accident "was in fact the precipitating cause of the psychiatric illness which followed" and which he diagnosed "as a conversion hysteria." He described conversion hysteria as a "psychiatric term which indicates that the anxiety which a patient normally has is not allowed to come to the surface but instead manifests itself in some physical manner, usually an involuntary or abnormal movement or occasionally in a paralysis or the weakness of an extremity, sometimes pain in a portion of

the body." See Mettler, The Medical Sourcebook, 750-757 (1959). He noted that any psychiatric illness depends upon the previous personality of the individual, and that the plaintiff probably had some "inadequate personality" which "played a part in determining the type of psychiatric illness that developed" following the accident.

Dr. Policastro, a qualified physician who specializes in neuropsychiatry, testified as a witness for the defendant. He had examined the plaintiff on only one occasion, namely, May 14, 1958; that examination was at the plaintiff's request and was made for the purpose of enabling the doctor to testify in a workmen's compensation proceeding. Dr. Policastro concluded that the plaintiff was totally disabled but was of the opinion that he probably had "a pre-existing Parkinson's disease before the accident." The pre-accident history, as given to Dr. Policastro by the plaintiff, contained no suggestion of any symptoms of Parkinson's disease but in that regard the doctor noted that the disease, which he stated to be generally caused by arteriosclerosis, infection or toxicity, is an insidious one which may be hardly perceptible and may, after trauma, run from a "chronic form to a subacute to an acute form." In response to an inquiry by the defendant's counsel as to how long the plaintiff had the disease, the doctor stated that he "felt that it pre-existed the accident"; and in response to an inquiry as to whether there was any connection between the disease and the accident in producing the plaintiff's disability the doctor stated that he felt that the disease had been running in a chronic form, and that "the accident aggravated it and it became much more pronounced and then began to run a subacute form." He noted that a conversion hysteria was "nothing more or less but the expression of an inner subconscious conflict expressed through the body that the examiner can see objectively" and acknowledged that a manifestation of conversion hysteria may be "the shaking of the right arm similar to Parkinson's disease." In response to the suggestion that many other symptoms of conversion hysteria may

parallel those of Parkinson's disease he stated that "a conversion hysterical patient may present a condition that may resemble any disease with the exception of a blood disease."

The trial judge did not in any wise question the credibility of the plaintiff; on the contrary he stated that he was "impressed by his testimony" and that the plaintiff "seemed to be a very frank man." He rather summarily dismissed Dr. Winkler's conclusion that the plaintiff was suffering from a conversion hysteria precipitated by the accident, calling it "a psychiatric conjecture"; and he expressed the view that the plaintiff had "a pre-existing condition" which "contributed to his disability" and which precluded recovery on the accident policy issued by the defendant. He concluded that the plaintiff had not satisfactorily carried the burden of proof and, as a result of inquiry by the plaintiff's counsel, made the added finding "that the plaintiff was suffering from Parkinson's disease at the time of the occurrence and that it was a chronic form." He entered judgment for the defendant and his action was affirmed by the Appellate Division which found that "there was sufficient evidence to justify a conclusion that there was a pre-existing condition and that the disability was not independent thereof, as the contract of insurance required." See 64 N.J. Super., at p. 546. At no point did the Appellate Division express the independent view that the plaintiff had Parkinson's disease prior to the accident; it simply determined that on the record it could not say "that the finding that plaintiff's present disability was caused by the joint operation of a latent pre-existing condition and the blow on the head was error as a matter of law or that the issue has been removed from the realm of reasonable dispute" as to require disturbance of the trial judge's findings. See 64 N.J. Super., at p. 544.

We are satisfied from the evidence that prior to the accident the plaintiff fairly considered himself to be in good health -- he had none of the tremors and the related manifestations ...


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