(dissenting).
It is my opinion that appellants are not bound by the restriction because of its misleading and meaningless wording. When Dr. Lichtenberg, the medical director of the Association and the person who put the restriction on the membership, was asked by the trial court to state the meaning of “pending final diagnosis” he began his answer in this fashion: “Well, I — this, Sir, is not”; and he then floundered on through several pages of testimony in an unsuccessful attempt to give an intelligent answer. At one time he said, “it’s a legal expression” and at another time he said, “this thing was meant to alert the doctors.” Finally the trial court in an attempt to get some specific answer, asked: “But, now, when was the final diagnosis made?” The doctor’s reply was: “Well, there wasn’t any final diagnosis made in this case.”
Dr. Brennan, a staff doctor of the Association, testified: “Well, final diagnosis in an instance of this nature cannot be made until the organ has been removed and a pathological examination done of the organ.” When asked, “After the operation you made a diagnosis?”, he replied, “It would be made — actually, it is a pathological examination.”
*720It seems quite plain to me that although the restriction purported to be “pending final diagnosis,” the Association had no intention of making a final diagnosis. The position of the Association appears to be that there was an absolute restriction, without condition of any kind, on an operation resulting from a fibroid uterus; but instead of stating the restriction in unequivocal terms, it added the misleading words, “pending final diagnosis.”
To the lay mind at least, a diagnosis is something which precedes an operation and does not occur after the operation has been performed. I understand Dr. Brennan to agree with this, because in effect he said that what took place after the operation was not a diagnosis but was a pathological examination. I think Mrs. Logan was justified in believing, as she said, that the final diagnosis would be made after she had been examined by the staff doctors. Several such examinations were made and the organ was found normal, and since she received no notice of any “final diagnosis” she assumed it had been made and was favorable to her. Five years after her application she was told in effect that no final diagnosis had been made and none would be made.
Finally, and to illustrate what appears to me to have been the attitude of the Association throughout the whole matter, after the hysterectomy had been performed by Dr. Leonard, the Association, through Dr. Lichtenberg, informed Mrs. Logan that the restriction for “fibroid uterus, pending final diagnosis” had been removed from her membership. What possible advantage would it be to her to have the restriction removed after the uterus had been removed ?
I think the purported restriction was misleading and ineffectual and the Association should not be allowed to rely on its own bylaws to relieve it from its own deception. I would reverse and order judgment for appellants.