Appeal from order of Court of Common Pleas of Dauphin County, June T., 1962, No. 1708, in case of Dauphin Deposit Trust Company, administrator c.t.a. of estate of Mrs. Louise Peters, also known as Mrs. Frank Peters, v. World Mutual Health and Accident Insurance Company of Pennsylvania.
William J. Madden, Jr., for appellant.
W. H. Clay Keen, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Opinion by Hoffman, J.
[ 206 Pa. Super. Page 407]
Appellant, the insured, on July 5, 1960, applied to the appellee-insurance company for a health and accident insurance policy. The terms of the policy provided that the company would pay certain hospital expenses together with an indemnity of $100 weekly during the period of any hospital confinement. On March 7, 1961, the insured applied for an additional policy on the same terms. The company issued both policies
[ 206 Pa. Super. Page 408]
without requiring a medical examination of the insured.
The insured suffered a cerebral hemorrhage on October 27, 1961. She was admitted to the Harrisburg Polyclinic Hospital on November 2, 1961, and was still confined in a rest home at the time of trial.
The insured applied for benefits under the policies. The company refused to pay these benefits, claiming that the insured's sickness was not covered, because it did not commence or was not contracted during the term of the policies.*fn1 Both policies specifically provided that "'Sickness' wherever used in this policy means sickness or disease contracted and commencing during the effective term of the insurance hereunder."
The insured brought an action in assumpsit against the company to collect benefits under the policies. During the trial, no evidence was adduced by either party which could establish when the sickness first commenced. The trial court decided that the burden was upon the company to prove that the sickness originated prior to the effective dates of the policies. Consequently, it directed the jury to return a verdict for the insured. After further consideration, however, the court set aside the verdict and ordered a new trial.
The court recognized that if the provisions relating to pre-existing sickness were drafted as specific exclusions or exceptions, any defense based on them would be affirmative in nature, and the burden of proof would be upon the company. Armon v. Aetna Casualty & Surety Company, 369 Pa. 465, 468-469, 87 A.2d 302, 304 (1952). It concluded, however, that these provisions ...