(dissenting). The policy in question, bearing the caption “Major Medical Expense Policy,” undertook to insure the plaintiff and members of his family designated on the application dated November 5, 1968 “against loss resulting from sickness or injury as hereinafter defined and to the extent hereinafter provided.” Sickness is defined as “sickness or disease contracted and commencing after the effective date of this Policy as to the person whose sickness is the basis of claim.” The effective date of the policy was January 30, 1969. The infant Matthew was born June 1, 1969. lie became a “Covered Member” under the policy “upon attaining the age of fifteen days.”
The majority points out that “all medical experts are in agreement that Matthew has cystic fibrosis and that it was present at birth * * *” but decides that this does not mean the sickness was “contracted and commencing” before fifteen days of life. It seems to me that a most respectable argument can be made to the effect that if this dread disease was present at birth or, as we are told by one of the experts, even before birth, then assuredly it was contracted and commenced, both, before Matthew attained the age of fifteen days.
This rather compelling and uncomplicated logic derives support from the nature of the affliction at once inherited and congenital. The majority’s observation that cystic fibrosis is “an inherited disease present at birth,” while technically accurate, disguises the fact that not all inherited ailments are “present at birth.” According to defendant’s expert witness Dr. Maraño (whose particular expertise was in the field of cystic fibrosis) a sickness achieves the characteristic of being “inherited” by virtue of its being “transmitted through the genes of the parents.” Asked to define “congenital disease” (the inquiry was made of no other witness) he termed it one which is “present at birth.” That distinguishing feature of cystic fibrosis is important in light of plaintiff’s attorney’s attempt to argue from the clearly imperfect analogy to muscular dystrophy and diabetes, both of *563•which are inherited hut neither of which is congenital and thus not “contracted and commencing” at birth.1
But I need not, for purposes of this dissent, go so far as to embrace the proposition that the case may be decided solely on the conceded point that cystic fibrosis was present in this infant at birth. The Court holds that in the present context “contracted and commencing” should be taken to mean that “coverage would exist where the first positive symptoms of the disease did not manifest themselves with reasonable certainty within the first fifteen days of Matthew’s life.” On the record before us T would hold that in applying that test the evidence is abundant and uncontradicted that “positive symptoms” of cystic fibrosis were manifested with “reasonable certainty” within the first fifteen days; thus, there was no factual issue for the jury’s determination. Defendant’s motion for judgment at the conclusion of the case should have been granted.
The infant has been afflicted, everyone agrees, with cystic fibrosis since the day he was born, June 1, 1969. The first positive symptoms were alarmingly evident at birth. According to Dr. Sank, the attending pediatrician, the pre*564sumptive diagnosis at the time of birth was cystic fibrosis:2 The Overlook Hospital discharge summary of Dr. Panzarino, who performed the surgery to relieve the meconium ileus condition,' reveals that even before the operation of June 3, less than seventy-two hours after birth, a “preliminary diagnosis of cystic fibrosis with meconium ileus” was made. Dr. Panzarino’s statement attached to the form by which claim was made under the policy in question shows that the “symptoms” of “meconium ileus with intestinal obstruction and cystic fibrosis” first appeared on the date of birth. The discharge summary, a month after birth, included a “final diagnosis” of cystic fibrosis with meconium ileus and midgut volvulus” — this despite the unsuccessful attempt to achieve absolute certainty by way of the sweat test, which was not successfully performed until August 22. The attending pediatrician’s letter two weeks thereafter to the family’s regular pediatrician indicated the family had been informed that the baby’s “problem” in the hospital was “part of cystic fibrosis.” There was, in short, a continuum of sickness contracted and commencing prior to the effective date of the policy as applied to Matthew.
The majority’s test of “first positive symptoms manifesting themselves with reasonable certainty” assuredly is satisfied by something short of an exclusive and definitive diagnosis confirmed by the sweat test of August 22, the date p’aintiff insists the disease was contracted and commenced within the meaning of this policy. The result here should not be made to turn on, nor can a factual dispute touching the ultimate issue be found in, the absence of a definitive diagnosis having been announced within the first fifteen days, nor on the present treating physician’s refusal to adopt Dr. Marano’s view that meconium ileus is pathognomic of cystic fibrosis (although he nevertheless acknowledged that only a *565“very, very small percentage of patients who have had meconium ileus have not turned out to be “cystic”). The record is clear that within the critical fifteen day period the first positive symptoms of cystic fibrosis were manifested not just with “reasonable certainty” — they were glaringly and frighteningly apparent and supportive treatment was therefore undertaken immediately.
I would affirm the Appellate Division’s reversal of the judgment in favor of plaintiff and enter judgment for defendant.
Mountain, J., joins in this dissenting opinion.
For reversal—-Chief Justice Hughes and Justices Jacobs, Sullivan and Pashman—4.
'For affirmance—Justices Clifford and Mountain—3.
Plaintiff’s contentions reveal an apprehension that the carrier might escape liability for loss consequent upon what he classifies as a hereditary ailment, the symptoms of which may not appear for many Shears. While I think this approach fails to recognize the critical distinction between “congenital” and “hereditary” conditions and inappropriately employs the “diabetes” example, I would also call attention to N. J. 8. A. 17:38-13.2 (A) (2) in effect at the time this policy was issued, and to N. J. 8. A. 17B:26-5(b), effective January 1, 1972, and particularly to the following provision in the policy in question, harmonious with the statutory requirement:
“TIME LIMIT ON CERTAIN DEFENSES: * * *(b) No claim for loss incurred after two years from the date of issue of this policy shall be reduced or denied on the ground that a disease or physical condition not excluded from coverage by name of specific description on the date of loss had existed prior to the effective date of coverage of this policy."
At another point in his testimony Dr. Sank said “there was a presumed diagnosis of cystic fibrosis at about one or two weeks of age” — in any event earlier than the fifteenth day.