Stambler v. Order of Pente , 159 Pa. 492 ( 1894 )

Opinion by

Me. Chief Justice Sterrett,

This case was taken into the court below by appeal from the magistrate’s judgment rendered June 28,1892. It was clearly shown on the trial that plaintiff became disabled "by sickness on March 17, 1892, and so continued for about six weeks. She was continuously under the care of her physician from March 22d until April 27th. On April 6th, application for two weeks’ sick benefits was made in due form and honored by the defendant. On May 4th, another application was made for the next succeeding three weeks’ benefits. This was also in due form, except that the physician’s certificate does not appear to have been sworn to by him. The blank form of jurat was neither filled up nor signed. So far as appeal's from the testimony this application and accompanying proofs of disability were retained by the defendant without notice to plaintiff of any objection thereto on that or any other ground. It does not appear that any such notice was given before this suit tvas brought. If the defendant intended to object to the omission referred to, prompt notice thereof should have been given, so that plaintiff might have had an opportunity of correcting the same. Anything short of that would be a departure from the principles of good faith and fair dealing which should always characterize the conduct of beneficial associations towards their own members. While such associations are in s'ome respects unlike insurance companies, there is every reason for holding them to the rule applicable to notice and proofs of loss under ordinary insurance policies. As stated in Gould v. Ins. Co., 134 Pa. 588, that rule is: “ If the insured, in good faith, and within the stipulated time, does what he plainly intends as a compliance with the requirements of his policy, good faith equally requires that the company should promptly notify him of their objections, so as to give him the opportunity to obviate them; and mere silence may so mislead him, to his disadvantage, to suppose the company satisfied, as to be of itself sufficient evidence of waiver.” The good faith of the plaintiff and the meritorious character of her claim are clearly shown by the testimony in this case.

In his clear and concise charge, the learned trial judge instructed the jury that while verification of the physician’s certificate by his own oath was a condition of plaintiff’s contract, it was one which the defendant might waive; and, in view of the testimony, he submitted to them the question whether it had or had not been waived in this case. There was no error in that. The testimony, as to defendant’s conduct in receiving and retaining the application and proofs of disability without objection, etc., was sufficient to justify submission of the question to the jury; and their verdict is evidently predicated of the finding that strict compliance with the condition was, in fact, waived. That effectually disposes of the only defence that was relied on. Further consideration of the specifications of error is unnecessary. Neither of them is sustained.

Judgment affirmed.