Frederick G. McGavin, Stevens & Lee, Reading, for appellant.
Russell H. Yoder, Reading, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 19]
On November 7, 1945, appellant issued to David E. Yoder a policy of insurance, upon the top of the first page whereof appeared this legend: 'This Policy Provides Benefits for Loss of Life, Limb, or Sight, from Accidental Bodily Injuries, and Benefits for Hospital and Certain Other Expense to the Extent Herein Provided.' The policy insured Yoder 'against loss because of hospital and certain other expenses resulting from such injuries or such sickness,' and defines: '(b) the term, such sickness, as used in this policy, shall mean sickness, the cause of which originates while this policy is in force and more than thirty days after the Policy Date (except tuberculosis, heart trouble, appendicitis, hernia, or any other sickness resulting in a surgical operation, in which cases the cause must originate more than six months after the Policy Date); and promises to pay indemnity to the Insured (or to the hospital or ambulance company, if authorized by the Insured to do so) to the extent hereinafter limited and provided'. There follow paragraphs describing 'Hospital Room Expense Benefits ', 'Additional Hospital Expense Benefits ', and 'Ambulance Expense Benefits '. (Emphasis added.)
For an additional premium, the insurer attached a 'Surgical Operation Benefits Rider' whereby the insurer agreed to pay insured surgeon's fees for certain enumerated operations not to exceed specified amounts, among them: 'Herniotomy (Repair of single hernia) $50.00.' Following the schedule of operations is this provision: 'The payment of any one of the above listed amounts, whichever is greater, shall discharge all liability
[ 171 Pa. Super. Page 20]
under this rider for any one period of disability.' (Emphasis added.)
In his application Yoder stated that he had a 'small hernia' and 'Wear a Truss.' Accordingly the insurer wrote at the foot of the policy: 'This policy is issued on the condition that benefits shall not accrue for disability resulting from hernia. The insured agrees to this endorsement by the acceptance of this policy.' (Emphasis added.)
From July 3 to July 12, 1950, Yoder incurred expenses*fn1 in a hospital, and sued in assumpsit to recover $143.85.*fn2
The operation occurred more than 6 months after the policy became effective. The case was tried without a jury and the judge, holding that the words 'disability resulting from hernia' in the endorsement referred only to loss of earnings and therefore did not exclude recovery for the benefits mentioned in the policy, entered judgment for plaintiff, which was approved by the court en banc. This appeal followed.
The word 'disability' may indeed relate to loss of earnings or earning power. It does have that meaning under some provisions of the Workmen's Compensation and the Occupational Disease Acts, 77 P.S. §§ 1 et seq., 1201 et seq. See Hughes v. H. Kellogg & Sons, 139 Pa. Super. 580, 13 A.2d 98; Leaver v. Midvale Co., 162 Pa. Super. 393, 57 A.2d 698. But it does not have that meaning in every context. Sickness or disease is also a disability. 7 Couch Cyclopedia of Insurance law, § 1683. See Butler v. Prudential Ins. ...