Mutual Ben. Health & Accident Ass'n v. Ramage

• Citation: 293 Ky. 586
• Court: United States State Supreme Court (Kentucky)
• Decision Date: 12 March 1943
• Parties: Mutual Ben. Health & Accident Ass'n v. Ramage.

293 Ky. 586

Mutual Ben. Health & Accident Ass'n v. Ramage.

Court of Appeals of Kentucky.

March 12, 1943.

1. Insurance. — Provision of accident and health policy that it covers tuberculosis only if the disease originates after the policy has been in force for the six preceding months is valid.

2. Insurance. — In action on accident and health policy providing coverage for tuberculosis only if the disease originates after policy has been in force for six months, conflicting evidence on issue whether insured's tuberculosis originated after policy became effective as to such disease was sufficient to take case to jury.

3. Evidence. — In action on accident and health policy providing coverage for tuberculosis only if the disease originates after policy has been in force for six months, expert opinions of insured's physicians that insured's tuberculosis originated after policy became effective as to such disease were not without probative value, where such opinions were based on facts disclosed by their examination of insured.

4. Insurance. — In action on accident and health policy providing coverage for tuberculosis only if the disease originates after policy has been in force for six months, evidence supported verdict for insured on issue whether insured's tuberculosis originated after policy became effective as to such disease.

5. Insurance. — Under accident and health policy providing that it covers tuberculosis only if the disease originates after policy has been in force for six months, the disease "originates" when it becomes active or there exists a distinct symptom or condition from which one learned in medicine can with reasonable accuracy diagnose the disease as tuberculosis.

6. Insurance. — Where accident and health policy limited benefit payments where disability does not confine insured continuously within doors but requires regular medical attention and excluded payments for disability while insured is not attended at least once a week by a physician, insured was required to be confined within doors and to be visited therein at least once a week by a physician to be entitled to full indemnity.

7. Insurance. — The condition of an accident and health policy requiring insured to be "regularly attended by a physician" at his

home to be entitled to full indemnity is not met by visits to a physician's office.

8. Insurance. — Accident and health policy requiring insured to be confined within doors and to be visited therein at least once a week by a physician to be entitled to full indemnity did not conflict with "public policy."

9. Insurance. — Where accident and health policy required insured to be confined within doors and to be visited therein at least once a week by a physician to be entitled to full indemnity, insured was not entitled to full indemnity for disability by tuberculosis notwithstanding that he was continuously confined within doors where insured was not visited by a physician at his home but had visited a physician's office for treatment.

10. Appeal and Error. — Where insurer denied liability to insured and if the court did not accept that view asserted that its maximum liability was $37.50 and insured recovered judgment for $212.50, and insurer moved for appeal, the amount of the judgment and not $175 was the amount involved in the appeal and the Court of Appeals had appellate jurisdiction (KRS 21.060).

Appeal from Livingston Circuit Court.

Bruce & Bullitt, Wm. Marshall Bullitt and R. Lee Blackwell for appellant.

Raymond B. Dycus for appellee.

Before H.F.S. Bailey, Judge.

OPINION OF THE COURT BY JUDGE SIMS.

Reversing.

The appellee, George L. Ramage, recovered a verdict of $212.50 against the appellant, Mutual Benefit Health & Accident Association, hereinafter referred to as the company, for disability resulting from tuberculosis, and the company moves for an appeal under Section 21.060, KRS.

The policy sued on was issued and delivered to appellee on March 28, 1940, and contains a provision that it covers tuberculosis "only if the disease originates after the policy has been in continuous force for the six preceding months." A similar provision was held valid in Equitable Life Assur. Soc. of U.S. v. Arrowood, 253 Ky. 456, 69 S.W. (2d) 984. It is admitted Ramage was completely disabled by reason of tuberculosis, thus we are confronted with a question of fact as to whether or not his tubercular condition originated before Sept. 28, 1940, the date the policy became effective as to that disease. It was stipulated that Ramage was not aware of any condition of ill health until a few days prior to Nov. 14, 1940, except commencing about Oct. 1st, of that year he became aware of a severe cold, cough, fever and a feeling of malaise.

The only witnesses testifying as to appellee's tubercular condition were Doctors Roy Waddell, Allen Shemwell and Palmer H. Reed. The former two examined him on Nov. 14, 1940, and the latter on Feb. 18, 1941. Dr. Waddell was appellee's family physician but had no X-ray machine and immediately after diagnosing the trouble as tuberculosis he sent the patient to Dr. Shemwell for confirmation. Dr. Shemwell X-rayed appellee's lungs and pronounced his trouble as tuberculosis, but testified his X-ray examination of Nov. 14th disclosed no cavities which he stated usually come in further advanced cases than the one appellee had. He further testified that it was difficult to determine the time required for the disease to reach the stage disclosed by his examination, but from the X-ray and from other examinations he made and the history of the case, he would say that it was one and a half months, and he thought appellee's tuberculosis originated from the attack of influenza (which was about Oct. 1, 1940). He testified he had seen patients die within a month from the time tuberculosis was contracted.

Dr. Waddell's testimony is confusing. In one part of it he gives as his opinion that Ramage had suffered from tuberculosis a month or six weeks before he examined him on Nov. 14th, and right afterwards he testified it was from three to five months. Evidently, he meant Ramage had a tubercular infection from three to five months before his examination, as he makes this latter statement in another place in...