Csizik v. Verhovay Sick Benefit Ass'n

60 Pa. Super. 466, 1915 Pa. Super. LEXIS 221

Opinion

Opinion by

Kephart, J.,

This action was brought by the husband as the beneficiary. Appellant contended that the heirs at law were the beneficiaries and the action should have been brought by them. The application designating the beneficiary was in foreign language, not easily translated, and in the appellant’s possession. Appellee moved to amend by adding as a party plaintiff the guardian of a minor child, who, with husband, were the heirs at law.. Amendments in the names of the parties which do not change the cause of action (Wildermuth v. Long, 196 Pa. 541; Garman v. Glass, 197 Pa. 101), and are made before the statute of limitations has run, are permitted under the Act of May 4, 1852, P. L. 574; Kaylor v. Shaffner, 24 Pa. 489; Fritz v. Heyl, 93 Pa. 77. This amendment did not violate, either of these rules and was properly allowed.

After the appellant had succeeded in forcing this amendment and causing a continuance of the case, at the second trial it comes into court and alleges that the husband was the only beneficiary, therefore the rightful plaintiff. The administration of justice cannot be trifled with in this manner. The appellant had every opportunity to know at the first trial who the real plaintiff should be.. It is now estopped. “That a party should be estopped, under such circumstances, from showing the truth, is an equitable, as well as a legal principle; for where a person has the benefit of a defense, as far as it serves his turn, good faith and fair dealing require, as between the same parties, that he should not be allowed afterwards to repudiate it, when it makes against him”: Kelly v. Eichman, 3 Wharton 419. “If, then, the defendant had been allowed to defend the second action by alleging that his first plea and assertion, upon the faith of which the justice acted, was false, and that the first action was rightly brought, it would have been the triumph of a mere juggle and cheat, and would have subjected the tribunal of justice to the chicanery and falsehood of one party, to the injury and loss of the other: Patterson v. Lytle, 11 Pa. 53; Willis v. Kane, 2 Grant, 60. Inasmuch as all possible parties appear on the record as parties plaintiffs, the appellant cannot be injured.

The by-laws of the association provide that, “Every respectable white Christian man or woman may 'become a member of the association who is not below the age of 16 and not above 45, if he is found, on the ground of medical examination, resp. certificate, healthy, physically and mentally.” The court held that in so far as the health of the insured entered into or was a condition precedent to the contract, it was made to depend upon the report of the medical examination made by the physician, subject, however, to the approval of the proper officers of the association as provided in the bylaws; that such examination did not require declarations to be made by the insured as to her health. There is nothing in the paragraph referred to which specifically requires the insured to make any statements to the examiner as to the condition of her health. It is 'contended by the appellant that the language of this paragraph is broad enough to include the actual physical condition of the applicant, regardless of what the examiner’s certificate may contain; and if, as a fact, the insured was not healthy within the meaning of that word, it could be so shown, as the insured was impliedly required to state the condition of her health to the examiner. Without deciding the proper interpretation to be given the paragraph as to what the duties of insured were, and the presumption arising from failure to perform those duties, and considering the questions in the light of appellant’s contention, were the offers of evidence to establish ill health properly excluded by the trial court?

“Slight troubles, temporary and light illness, infrequent and light attacks of sickness, not of such character to produce bodily infirmity or serious impairment or derangement of vital organs, do not disprove the warranty of good health. In other words, the term ‘good health,’ when used in a policy of life insurance, means that the applicant has no grave, important or serious disease, and is free from any ailment that seriously affects the general soundness and healthfulness of the system. A mere temporary indisposition which does not tend to weaken or undermine the constitution at the time of taking membership does not render the policy void”: Barnes v. Fidelity Mutual Life Assn., 191 Pa. 618. “In construing a policy of life insurance it must be generally true that, before any temporary ailment can be called a disease, it must be such as to indicate a vice in the constitution, or be so serious as to have some bearing upon the general health and the continuance of life, or such as according to common understanding would be called a disease; and such has been the opinion of text writers and judges”: Baldi v. Insurance Co., 18 . Considering the paragraph by the rule as here laid down, “healthy” would mean that the applicant had no grave, important and serious disease and was free from an ailment that seriously affects the general soundness and healthfulness of the system. Appellant endeavored to show that the insured was afflicted with consumption when the application was made; and if successful this would bring the case within the prohibition of this clause of the policy. The proof of loss shows that the insured died of pleuro-pneumonia, but this fact would not prevent the appellant from showing that at the time the insured applied for membership she was afflicted with another disease not within the meaning of the term “healthy” as used in this paragraph: Hartman v. Keystone Ins. Co., 21 Pa. 466; Carson v. Metropolitan L. Ins. Co., 1 Pa. Superior Ct. 572. Appellant does not seek to establish the existence of this disease by any medical testimony, although it is quite well known that the disease can only be determined with certainty by a strict medical examination by one skilled in diagnosis or the use of the microscope. It cannot be ascertained by a superficial physical examination nor from a heavy cold nor from a somewhat emaciated appearance. This condition, with coughing, may follow a bad spell of croup, cold, chronic bronchitis, an abscessed chest, or many minor illnesses. Had the existence of this disease' been developed from competent medical evidence, or evidence having the sanction of medical authority, it may be that the declarations of the insured would then be competent evidence, as showing the continued existence of the conditions upon which the medical examiner made his diagnosis. There would be some foundation for the statement of the insured that she had this disease, and such knowledge concealed would be a fraud upon this defendant association. Furthermore, as against the certificate of a man skilled in medicine, these declarations as testified to by friends, and this supposed evidence of appearance, would not be sufficient of themselves to overthrow this certificate of good health furnished by this man and approved by the officers of the association. The offer, in connection with the evidence of Louis Gergas, did not fix with any reasonable certainty the time when the alleged declarations were made, and Mrs. Markovitz, another witness, fixed the time after the application for membership had been written. As to the declarations of the husband, made before the policy of insurance was written, that his wife was afflicted with this disease, it is subject.to the same objection as that of the declarations of the wife, with this addition, that it is not shown that the husband was experienced in the practice of medicine. Any declaration which he might make must necessarily have been based upon what some person told him, and the fact still remains that the disease was not proven to have actually existed by any competent medical authority. For. these reasons we think the evidence was properly excluded. .

The assignments of error are overruled and the judgment is affirmed at the cost of the appellant.