Modern Woodmen of America v. Atkinson

• Decision Date: 02 May 1913
• Citation: 153 Ky. 527,155 S.W. 1135
• Parties: MODERN WOODMEN OF AMERICA v. ATKINSON.
• Court: Kentucky Court of Appeals

155 S.W. 1135

153 Ky. 527

MODERN WOODMEN OF AMERICA v. ATKINSON.

Court of Appeals of Kentucky.

May 2, 1913

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Bertha Ray Atkinson against the Modern Woodmen of America. Judgment for plaintiff, and defendant appeals. Affirmed.

Bennett H. Young and Samuel G. Tate, both of Louisville, and Truman Plantz, of Rock Island, III., for appellant.

D Moxley and Samuel W. Greene, both of Louisville, for appellee.

MILLER J.

Ish S Atkinson was examined on October 24, 1910, for membership in the Modern Woodmen of America. The membership carried $1,000 life insurance. In answer to the usual questions propounded in such cases, he said he was then in good health, and had never had consumption. Atkinson worked in a lumber yard, and about that time had been caught in a rain, and contracted what seemed to be no more than a cold or a sore throat. The medical examination showed no symptoms of tuberculosis. Between December 7th and 15th Atkinson was treated for laryngitis by the physician who had examined him on October 24th, and on December 15th his lungs seemed to be in bad condition. In the meantime Atkinson had remained at home, and had not paid his entrance fee or applied for admission into the lodge of appellant. At the direction of his employer Atkinson went to Dr. Lindenberger for examination. Dr. Lindenberger examined him on a day between December 1st and December 16th, and diagnosed his case as an advanced stage of pulmonary tuberculosis. Immediately after making the examination, Dr. Lindenberger sent Atkinson to the Tuberculosis Dispensary in Louisville, where he was examined by Dr. Wilson on December 16th, who found Atkinson suffering with pulmonary tuberculosis of the lungs. By dividing the stages of tuberculosis into three stages, and by then subdividing each of those stages into three stages, styled incipient 1, 2, and 3, moderately-advanced 1, 2, and 3, and far advanced 1, 2, and 3, Dr. Wilson described Atkinson as being in the stage known as moderately-advanced 3. At the urgent solicitation of the secretary of the lodge, who was a close personal friend of Atkinson, and who had urged him to apply for admission within 60 days after his examination in order to save the expense of a re-examination, Atkinson applied and was admitted as a member of the lodge, and received his benefit certificate on December 20th. On January 8, 1911, Dr. Wilson sent Atkinson to the Hazelwood Sanatorium, near Louisville, and he remained there about a month. He was sent home, however, on February 5th, and died on February 22d. His wife, the appellee Bertha Ray Atkinson, was the beneficiary of the policy; and she having recovered $1,000, the amount named in the policy, the society prosecutes this appeal.

Appellant's defense was predicated upon the alleged false answers made by Atkinson to the questions propounded to him in the application; it being charged in the answer that he had consumption on October 24th, when he made the answer. The truthfulness of the answers was submitted to the jury in a proper instruction. It is further alleged, and it is true that when Atkinson accepted the policy on December 20th it...