National Protective Legion v. Allphin

• Decision Date: 26 January 1911
• Citation: 133 S.W. 788,141 Ky. 777
• Parties: NATIONAL PROTECTIVE LEGION v. ALLPHIN et al. d
• Court: Kentucky Court of Appeals

133 S.W. 788

141 Ky. 777

NATIONAL PROTECTIVE LEGION v. ALLPHIN et al. d

Court of Appeals of Kentucky.

January 26, 1911

Appeal from Circuit Court, Boone County.

Action by B. B. Allphin and another against the National Protective Legion. Judgment for the plaintiffs, and the defendant appeals. Affirmed.

F. L Howard and L. J. Crawford, for appellant.

J. G Tomlin, J. L. Vest, and Clore, Dickerson & Clayton, for appellees.

LASSING J.

On January 1, 1908, the National Protective Legion issued two policies of insurance for $2,000 and $3,000, respectively upon the life of James C. Allphin for the benefit of his father and mother, the appellees, B. B. and Pink Allphin. The insured died about February 21, 1909, of tuberculosis. The necessary proofs of death and loss were made out and presented to the company, and it resisted payment on the ground that the policies had been procured through fraud, in this: That in the application therefor the answers to three questions, which were material to the risk, were untrue. These questions were as follows:

"(1) How recently have you been associated with a person who had tuberculosis? Ans. Never.

"(2) How recently have you occupied apartments that have been occupied by one who had tuberculosis? Ans. Never.

"(3) Are you now subject to or afflicted by any disease, malformation, or weakness, or have you had any severe disease (except the usual diseases of childhood) other than those stated in the foregoing answers, or have you any material defect of eyesight or hearing? If so, state the date and the particulars of the same fully. Ans. Had typhoid fever in April, 1907, lasted three weeks. Entire recovery."

Suit was instituted by the beneficiaries upon the policies, and upon the issues joined the case was submitted to a jury, which returned a verdict against the company. From the judgment predicated upon this verdict the company now prosecutes this appeal and seeks a reversal.

Several grounds are relied upon, chief of which, and in fact the only ones which we deem it necessary to consider, are, first, that the verdict is contrary to law and not sustained by sufficient evidence; and, second, that the court did not properly instruct the jury.

The questions and answers thereto were material to the risk, and if the insured at the time he made this application did in fact have tuberculosis, as it is strongly insisted for appellant he did, then his answer to question No. 3 was untrue, and the company should not be held liable on the policies. Likewise, if he had recently, or at all, been associated with a person who had tuberculosis, or occupied apartments that had been occupied by one who had tuberculosis, then his answers to these questions were calculated to mislead and deceive the company, and no recovery should be allowed. The burden was upon appellant to establish affirmatively that these several answers were untrue. In order to establish this fact as to the first and second of these questions and answers, it sought to show that one Leslie Carroll had a tubercular abscess of the hip, and while suffering with this disease during the early part of 1907 was associated with the insured, and during the greater part of this time roomed with him at the home of one Dr. W. W. Smith, in Louisville, Ky. where he was being treated for same. Upon the trial it was admitted that the insured was associated and roomed with the said Carroll, but it was denied that he was suffering with tuberculosis. The proof shows that he had a very ugly abscess of the hip, and that he was taken to Louisville and operated upon about the 19th of February. Shortly after this operation he was removed to the home of Dr. Smith, and during his stay there roomed with the insured, who was then taking a medical course in Louisville. The wound had to be cared for and dressed almost daily, and not infrequently the insured assisted in doing this work. The physician who operated upon the hip gave it as his opinion that the abscess was tubercular in its nature. Another skilled physician, Dr. Berry, of Newport, Ky. testified that from the description of the abscess, which was described as a psoas abscess, he was of the opinion that it was tubercular. Dr. Smith, at whose house the young man was staying, had the pus from this abscess examined microscopically on several occasions by Dr. Vernon Robbins of Louisville, and such examinations disclosed the presence of no tubercular bacilli. Dr. Smith testifies that he at first suspected that it was tubercular in its character, but that, when the microscopic test disclosed the presence of no bacilli, he changed his opinion in regard thereto. Dr. Bagby, of Walton, Ky. who examined the abscess before the patient went to Louisville and was operated upon, pronounced it a psoas abscess, and stated that such an abscess was usually caused by an injury. He did not know whether it was tubercular or not. Dr. B. K. Menefee, of Walton, Ky. testified that from the description of the abscess and the recovery of the patient, when considered in the light of the fact that no tubercular germs were found in the pus, it was very doubtful if the abscess was of a tubercular origin or nature. There is no evidence whatever tending to show that the insured was ever associated with any one else supposed to be afflicted with tuberculosis, either of the lungs or otherwise, or that he ever occupied a room or apartments that had been occupied by any one troubled with tuberculosis.

On the third question and answer it is shown by the testimony of Dr Jones, the physician who acted for the company in making the medical examination, that at the time the application was made out he regarded the insured as a good risk. Early in January, following the application and issuing of the policies to him, the insured went to Louisville with his mother for the purpose of completing his...