Kievit v. Loyal Protective Ins. Co.

• Decision Date: 12 July 1960
• Docket Number: No. A--251,A--251
• Citation: 64 N.J.Super. 537,166 A.2d 789
• Parties: Daniel KIEVIT, Plaintiff-Appellant, v. LOYAL PROTECTIVE INSURANCE COMPANY, etc., Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 537

64 N.J.Super. 537

166 A.2d 789

Daniel KIEVIT, Plaintiff-Appellant, v. LOYAL PROTECTIVE INSURANCE COMPANY, etc., Defendant-Respondent.

No. A--251.

Superior Court of New Jersey Appellate Division.

Argued June 6, 1960.

Decided July 12, 1960.

Ervan Kushner, Paterson, for appellant (Kushner & Kleiner, Paterson, attorneys; Ervan Kushner, Paterson, of counsel; Robert Kleiner, Paterson, on the brief).

Nicholas Conover English, Newark, for respondent (McCarter & English, Newark, attorneys; Nicholas Conover English, Newark of counsel).

Before Judges GOLDMANN, FREUND and HANEMAN.

The opinion of the court was delivered by

HANEMAN, J.A.D.

Plaintiff instituted suit in the Superior Court to recover on an accident insurance policy executed by the defendant on March 21, 1952. Plaintiff appeals from a dismissal of his action, from the trial court's denial of his motion for a stay of the judgment and for a new trial, and because the court did not apply the law of Massachusetts.

Under the terms of the policy, defendant agreed to pay plaintiff $200 monthly indemnity 'against loss directly and independently of all other causes from accidental bodily injuries,' and

'Part IX. Reductions and Exceptions

'The insurance under this policy shall not cover disability or other loss resulting from or contributed to by any disease or ailment, * * *.'

The trial was had befofe a judge without a jury. The testimony discloses that:

On August 19, 1957 plaintiff, while in his general employment as a carpenter, was struck over the left eye by a 2 4 board and seriously injured. Despite his injuries he continued to work until August 23, 1957, when he was forced to leave work because his right arm began to shake. On that day he was treated by Dr. Manrodt, who prescribed pills and 'worked on the shoulder.' Dr. Manrodt became ill and plaintiff was referred to Dr. Brown. He was then treated by other doctors, including Dr. Ramundo, and subsequently, in November of 1957, came under the care of Dr. Winkler who, at the trial, was plaintiff's sole medical witness. Plaintiff was confined to a hospital from November 26, 1957 until December 10, 1957, during which time he was under the care of Dr. Winkler and was also treated by Dr. Hirschfeld.

Plaintiff testified that he worked steadily as a carpenter for many years until the date of the accident and that until that time he was in good health. He admitted, however, that he had seen Dr. Manrodt about two weeks prior to the accident, complaining that he 'felt tired.'

Dr. Winkler testified that on the basis of his examination of plaintiff he concluded that the accident was the 'precipitating cause' of the illness which followed and which he diagnosed as 'conversion hysteria,' described 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.' He stated that plaintiff's disability was due in part to an inadequate personality which he felt antedated the accident. On cross-examination, in response to a question as to whether plaintiff's condition as it developed may have been the result of an inadequate personality plus the accident, he said:

'Yes, or a sudden serious thing of this sort. I think the best way of explaining this is going a little bit further. Some of the illness here is a disease produced, that is, the man had the original illness and then the fact that he is sick causes further anxiety and causes him to retreat further into the actual conversion hysteria * * *.'

There was introduced into evidence a written statement dated February 7, 1958 and signed by Dr. Winkler, in which he said:

'It is my opinion that partial relationship to these tremors can possibly be attributed to this blow on the head; all tests were normal.'

In other words, Dr. Winkler had then stated there is only a possible relationship between the tremors and the blow on the head.

The sole medical witness who testified for defendant was Dr. Policastro, who appeared in response to a subpoena. Dr. Policastro had previously testified in a workmen's compensation proceeding on behalf of plaintiff. Dr. Policastro did not treat the plaintiff prior to the date of the accident and his testimony and conclusions are a result of his examination of plaintiff over a period of time subsequent thereto. The gist and effect of his testimony was that Parkinson's disease was running in a slow chronic form prior to the accident and that the accident aggravated or accelerated it. He testified that very few people in the medical profession believe that trauma is a cause of Parkinson's disease. He stated that Parkinson's disease is a progressive type of disease and further testified that plaintiff had the two main symptoms of the disease, namely, tremors and muscular rigidity.

There are also in evidence exhibits in connection with the proof of loss claim submitted by plaintiff which consist of statements by Doctors Hirschfeld and Ramundo. The former stated that plaintiff's disability is due to 'Parkinson's syndrome,' while Dr. Ramundo stated it is due to a 'Jacksonian type of convulsion.'

Defendant paid plaintiff total disability payments amounting to $200 a month for a period from August 23, 1957 until December 23, 1957. Defendant then stopped the payments, claimining that its medical investigation disclosed that plaintiff's injuries were not caused 'directly' and solely by the accident and, moreover, that the company was absolved from liability by the provision which requires that disability be independent of all other causes. Since disability was, in effect, admitted, the sole issue at the trial was whether plaintiff's disability occurred in such a manner as to bring him within the terms of the policy.

Judgment was rendered for defendant on October 21, 1959. On October 31, 1959 plaintiff filed a motion to stay the judgment and made a motion for a new trial. The motion was heard November 13, 1959, at which time plaintiff indicated his desire to submit into evidence certain documents, including two physicians' reports which had beeen submitted to defendant as part of plaintiff's proof of loss; testimony of Dr. Manrodt, taken at a prior workmen's compensation hearing based on this same accident, to the effect that plaintiff showed no tremors when plaintiff visited him some two weeks prior to the accident; and the judgment and part of the opinion of the Morris County Court which affirmed the findings of the deputy director in the workmen's compensation proceeding.

Our initial concern is with the choice of law applicable to the facts as presented. In this regard the contract of insurance provided that it was to become effective only upon the execution of the policy by defendant in the State of Massachusetts; notice of injury had to be submitted on company forms to the company offices in Massachusetts; proof of loss had to be sent to the company's office in Massachusetts for action to be taken thereon; and payments could only be issued from the company's offices in Massachusetts.

The construction of a contract must be governed by the law of the state in which the contract is made, and this general rule is applicable to insurance policies. Buzzone v. Hartford Accident and Indemnity Co., 41 N.J.Super. 511, 125 A.2d 551 (App.Div.1956), affirmed 23 N.J. 447, 129 A.2d 561 (1957).

Plaintiff had requested that judicial notice be taken of Massachusetts law in his pre-trial memorandum as well as in a letter sent to the trial court several months prior to the trial. Defendant's attorney also received a copy of this letter. The Uniform Judicial Notice of Foreign Law Act (N.J.S. 2A:82--27, et seq., N.J.S.A.) has been interpreted liberally, as was stated by Justice Burling in Collozi v. Bevko, Inc., 17 N.J. 194, 203, 110 A.2d 545, 549 (1955):

'Insofar as the statute refers to the necessity of 'pleading' the foreign law, we have held that the issue of status of the pertinent law of the foreign jurisdiction may be raised not only in a complaint, but in an answer, at a pretrial conference 'or, with permission of the court, at the trial itself.' Leary v. Gledhill, 8 N.J. 260, 270, 84 A.2d 725, 730 (1951).'

The law of Massachusetts, therefore, governs the construction of the contract and should have been applied.

The law of Massachusetts with regard to this point is aptly stated in Brown v. United States Fidelity & Guaranty Co., 336 Mass. 609, 147 N.E.2d 160, 165 (Mass.Sup.Jud.Ct.1958), where it was said:

'The Howe case (321 Mass. 283, 72 N.E.2d 425) and the authorities therein cited, show the clear line of distinction adopted by our decisions between (a) death caused by a disease induced by the injury, even if the insured had some 'frailty or general weakness * * * (or) predisposition to a disease, or * * * a disease then * * * dormant' and (b) 'the aggravation of an existing heart disease by an accident' so that death is 'caused by the joint operation of a preexisting disease,' in which event the 'accident is not within the scope of the policy'.'

However, the law of New Jersey is to all intents and purposes identical with that of Massachusetts. In Runyon v Monarch Accident Ins. Co., 108 N.J.L. 489, 491, 158 A. 530, 532 (E. & A.1932), the court said:

'The instruction was well within the general rule that, under such a policy, if the insured, at the time of the accidental injury, was also suffering from a disease, and the disease aggravated the effects of the accident, and actively contributed to the death occasioned thereby, there can be no recovery upon the policy.'

See also Runyon v. Commonwealth Casualty Co., 109 N.J.L. 238, 160 A. 402 (E. & A.1932); Cramer v. John Hancock, etc. Ins. Co., 18 N.J.Misc. 367, 13 A.2d 651 (Cir.Ct.1940). It is immaterial, therefore, whether...