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CELLEY v. MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION (06/21/74)

decided: June 21, 1974.

CELLEY, APPELLANT,
v.
MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1964, No. 648C, in case of Albert J. Celley v. Mutual Benefit Health and Accident Association.

COUNSEL

John R. Padova, with him Solo, Bergman & Padova, for appellant.

William J. Toy, with him Gibbons, Eustace & Obert, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Spaeth, J. Wright, P. J., and Spaulding, J., took no part in the consideration or decision of this case. Concurring Opinion by Hoffman, J.

Author: Spaeth

[ 229 Pa. Super. Page 477]

This is an appeal from an order directing a verdict in favor of appellee, Mutual Benefit Health and Accident Association, on the basis of elimination endorsements

[ 229 Pa. Super. Page 478]

    in two health and accident policies issued in 1956 to appellant, Albert J. Celley.

The policies provide for an aggregate payment of five hundred dollars per month during the period the insured suffers a "total loss of time," i.e., when "the insured is able to perform none of his occupational duties, [and] receives no pay for performing work or service of any kind . . . ." In each policy there is an elimination endorsement that reads: "This policy is issued on the condition that benefits shall not accrue for disability resulting from eye trouble."*fn1 The endorsements were included because in 1945 appellant had suffered a retinal detachment, which, although initially corrected by surgery, had eventually resulted in the loss of sight in the right eye.

On March 8, 1964, appellant, while in Europe as manager of Duke Ellington's orchestra, slipped on ice and struck his head on a pole. His nose was broken and hemorrhaging occurred in his left eye, which led to the loss of sight in the left eye. Thus blind, appellant was unable to continue with the orchestra, and has done no other work. He made a timely claim for benefits under the policies. When appellee refused coverage on the ground that appellant's disability was due to "eye trouble,"*fn2 appellant filed suit on the policies. Appellee moved for summary judgment but the motion was denied and the case brought to trial on September 27, 1972.

[ 229 Pa. Super. Page 479]

At the beginning of the trial, appellant's counsel sought to introduce testimony of conversations between appellant and appellee's agent, Herman Fairbanks. Counsel contended that the term "eye trouble" was ambiguous and that evidence of the conversations should be admitted to clear up the ambiguity. In an offer of proof he stated:

"That Mr. Herman Fairbanks would testify that he sold the policies of insurance in question to the plaintiff as agent of Mutual of Omaha; that he was the licensed resident agent of Mutual of Omaha at the time; that his association with the plaintiff, in terms of the sale to the plaintiff of insurance, dates back to 1948 and continued through the time that these specific policies were sold.

"And that the facts and circumstances leading up to the sale of the policies in question to Mr. Celley were as follows: That Mr. Fairbanks solicited Mr. Celley's business on behalf of Mutual of Omaha; that, as the applications reflect, Mr. Celley disclosed the fact that he had had a detached retina in the right eye, which had been successfully corrected by surgery several years before the issuance of the policies in question.

"Mr. Toy: I will object to that offer from ...


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