damages which would naturally grow out, working condition. Hence it appears that of a violation of the contract. The loss of the court did not err in overruling the moanticipated profits which can be legally as- tion for a directed verdict, nor did it err certained that is, which do not lack cer- in the measure of damages recoverable which tainty on account of being too remote, con- was submitted to the jury by the instruc jectural, and speculative-may be recovered. tion given. Elizabethtown & Paducah R. Co. v. Potting- Another ground upon which it is insisted er, 10 Bush, 188; Blood v. Herring, etc., 61 that the motion for a directed verdict should S. W. 273, 22 Ky. Law Rep. 1725; Bates Ma- have been sustained was that the contract chine Co. v. Norton Iron Works, 113 Ky. provided that the appellee should make any 372, 68 S. W. 423, 25 Ky. Law Rep. 931; repairs necessary for the operation of the Pugh v. Jackson, 154 Ky. 649, 157 S. W. 1082; gin the necessity of which might appear Cordage Co. v. Luthy, 98 Ky. 586, 33 S. W. after the 1st of August, and that, when he 835, 17 Ky. Law Rep. 1126; New Market Co. undertook to operate the gin, it was his duty v. Embry, 48 S. W. 980, 20 Ky. Law Rep. to have made the repairs necessary to have 1130; Telephone Co. v. Wisdom, 62 S. W. 529, put it in good working condition, the cost 23 Ky. Law Rep. 97; Smith v. Perry, 13 Ky. of which, it is insisted, would not have exLaw Rep. 683; Long v. O'Bryan, 91 S. W. ceeded the sum of $100, and that appellee 659, 28 Ky. Law Rep. 1062; Gregory v. wholly failed to undertake in any way to Slaughter, 124 Ky. 345, 99 S. W. 247, 30 Ky. minimize the damages which he suffered Law Rep. 500, 8 L. R. A. (N. S.) 1228, 124 from the failure of appellant to perform its Am. St. Rep. 402; 8 R. C. L. 501, 502, and contract with him, which the appellant in649; Horn v. Carroll, 90 S. W. 559, 28 Ky. sists was conclusively shown by the proof. Law Rep. 840; Sagamore Coal Co. v. Clark, The appellant rests his contention in this 109 S. W. 349, 33 Ky. Law Rep. 137; Thomp-respect upon the contents of the letter which son v. Jackson, etc., 14 B. Mon. 114.

appellee wrote to appellant and which ac[3] In the instant case the gin was leased companied the return of the written confor one year. Unless a contrary purpose tract subscribed by him, and in this letter appears, it could not be assumed that one the appellee stated that he would pass on would take a lease upon a cotton gin for any and give his opinion at the time the appelother purpose than to operate it. The con- lant had completed all repairs necessary to tract here provided that the lessor should, put the plant in good working condition, and as one of the conditions of the lease, put if there were some things left to be done it into good condition for operation, and after the appellant's servant had left who from which it was obliged to have inferred (was to do the necessary repairs, appellee that it was the purpose and intention of the was willing to do it with an experienced appellee in securing the lease to operate the man of his own, but would expect the apgin for what it would realize to him. Aside pellant to pay for the work as it had agreed from these considerations, the appellee al- to put the plant in good running condition. leges and proves that appellant was made This proposition, if it may be so called, or acquainted with the fact that his purpose addition to the contract, was distinctly rein entering into the contract was to secure jected by the appellant in the letter which the gin for the purpose of operating it. In it wrote to appellee in reply. Instead of it such state of case it seems that the parties being conceded that the evidence shows that must have had in contemplation, when the appellant put the plant in good working concontract was made, that the profits which dition before August 1st, and that it was acthe appellee anticipated would be made from cepted as such by the appellee, the evidence the operation of the gin would be an ele- shows preponderatingly that the plant was ment of the damages if the contract was not put in good working condition by appelviolated so that he was prevented from lant, nor did appellee accept it as being in such operating the gin and realizing the profits. condition from the repairs made. The eviThe anticipated profits are capable of as- dence shows without any contradiction that, certainment with a reasonable degree of cer- when appellee did undertake to operate the tainty. The evidence without dispute shows gin, it was utterly unfit to be operated, and that the ginning season, during the term of was in such condition that appellee and his the lease, was from 60 to 90 days. The witnesses deposed that it was then too late plant, if in good working condition, would in the season to undertake to put it in workgin not less than 30 bales of cotton per ing condition for that season, and the exday. The profit for ginning a bale of cot-pense which would have been necessary to ton, over and above the expenses of so do- have put it in good working condition does ing, was not less than $2.50. During the not appear to have been less than the sum of period of the lease the appellee proves that $100, because when it was put in condition he was compelled to decline to gin not less the following year, without any material than 500 bales of cotton because of the lack change in its condition, the cost amounted of ginning facilities arising from the to $300 to $400. It will further be obappellant's failure to put the gin in good served that the failure to put the plant in a

(222 S.W.)

working condition of which appellee com- The judgment for the recovery of damages plains was not on account of something is therefore affirmed, but the judgment suswhich happened to the machinery after the taining the attachment is reversed, and the 1st of August, or some injury to it which cause remanded for proceedings consistent might arise from its operation or otherwise, with this opinion. but the complaint which he makes is of the failure of the appellant to perform the covenant in its contract to put the plant in working condition before the 1st of August as a condition of the contract between them. SOVEREIGN CAMP, WOODMEN OF THE Hence the evidence does not show such a state of case as would justify a peremptory direction to the jury to find a verdict for appellant.

WORLD, V. THOMAS.

(Court of Appeals of Kentucky. May 25, 1920.) 1. Insurance 819(2)-Evidence held to show insured suffered from indigestion before death.

In widow's action on husband's policy issued by benefit society, evidence held to show that husband for three or four years before his death had been suffering with attacks of indigestion, some so serious as to leave him apprehensive for his life, also showing he knew attacks were from indigestion or serious disorder of digestive system.

2. Insurance 723 (5)-Misrepresentations of insured as to freedom from indigestion may prevent recovery.

[4] We do not consider nor pass upon the question as to what instruction, if any, would have been proper to have been given to the jury touching the appellee's duty to minimize the damages which he was about to suffer, as no such instruction was offered by the appellant, nor any instruction which required the court to give one upon that subject, as appears from the bill of exceptions. The issue which appellant made and upon which it squarely based its defense was that it had put the plant in good working condition before the 1st of August, and that appellee had so accepted the repairs then in made, and had accepted the plant as in the condition required by the contract, and for that reason could not complain of the unfit condition of the plant after that time, and the court, in substance, so instructed the jury, submitting to it the issue as to whether the appellant did put the plant in the condition required by the contract before the 1st of August, and whether the appellee accepted it as such, and upon that issue the jury evidently found for the appellee.

[5] The judgment by which the attachment was sustained and seven separate lots, designating them by numbers, are directed to be sold in satisfaction of the judgment for damages, must be reversed. The return of the officer who levied the attachment issued in the action does not indicate that the lots are the property upon which he levied the attachment, and there is no evidence or pleading of any kind in the record to support the judgment to the effect that the lots should all be sold together, or the neces

sity for so doing. While the description of a parcel of real estate as a town lot might be sufficient upon which to rest a judgment that it was indivisible, it could not be conceded that seven separate lots constitute one indivisble parcel of real estate, without evidence to that effect, or at least a showing that they are contiguous. The rule providing that no more of a defendant's real estate should be sold in satisfaction of a debt than is necessary for that purpose should be adhered to, unless it is shown that the property is not susceptible of practical division.

Under Ky. St. § 639, providing statements application for life insurance shall be deemed representations, and shall not prevent recovery unless material or fraudulent, where applicant for certificate of insurance in a benefit society, with knowledge he was subject to indigestion, or at least that he had symptoms of serious disturbance in digestive system, stated he had never had diseases or symptoms of colic, gall stones, or indigestion, or other diseases of digestive system, his widow cannot recover on certificate.

3. Insurance 818(2)-Evidence that application would not have been accepted if applicant had stated truth admissible.

In action on certificate issued by benefit society, defense being that in his application insured misrepresented he had never had diseases of digestive organs, or symptoms thereof, evidence that according to usual course of life insurance business application would not have been accepted or policy issued, if insured had stated the truth, is admissible for defendant society.

Appeal from Circuit Court, Grayson County.

eign Camp, Woodmen of the World.
Suit by Susie Thomas against the Sover-
From
a judgment for plaintiff, defendant appeals.
Reversed, with directions for new trial.

Robt. L. Page and L. D. Greene, both of Louisville, and Allen Cubbage, of Leitchfield, for appellant.

Haynes Carter, of Elizabethtown, for appellee.

CARROLL, C. J. This is a suit by Susie Thomas, the widow and beneficiary of A. W. Thomas, to recover from the appellant, Woodmen of the World, the amount of a

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

policy for $1,000 issued to A. W. Thomas. Up-grounds, and thought I was going to pass away.' on refusal to pay the policy, Mrs. Thomas Then he told about the first time. Q. What brought this suit, and, after a trial in the sort of spell did he say that was? circuit court, there was a judgment in her pronounced it then, he thought it was somefavor for the amount of the policy, and the thing like bilious colic, Q. He characterized it as some sort of stomach trouble, did he? A. company appeals. Yes, sir. Q. Did he say on that occasion whether he suffered much or little, whether it was serious or slight? A. Yes; he said it was serious."

(222 S. W.)

on account of the fact that they hurt him. Q. Yes, sir. Q. Would you have made a complete Did he tell you what those things produced as and detailed inquiry into his condition? A. a rule, if he ate them? A. Well, I couldn't say Certainly I would. Q. If, in answer to this now that he did. He just said he couldn't eat question, Doctor, 'Have you consulted or been them on that account. Q. Did he tell you at attended by a physician for any disease or inthat time what they did to him, how they af-jury during the past five years?' had Mr. fected him? A. Well, as well as I remember, Thomas answered that question, 'Yes,' would he said they kind of cramped him, or something of the kind, that they hurt his stomach; it hurt him so he didn't eat them at all, just left them off. Q. On how many occasions did he tell you that? A. I couldn't say; he was there at my house some several times. Q. Did he during that time, or at any time, tell you of being out on his business trips and being overtaken with some trouble of that sort? A. Yes, sir. Q. Did he say to you he suffered much or little pain? A. Yes; he said sometimes he thought he wasn't going to make it at all. Q. Now, then, did the condition he described to you at that time occur during the last two or three years of his life or not? A. Yes, sir; I don't remember just the last time he said about it, but it wasn't any great while before his death. Q. Within the last year or A. Yes; within the last year."

Dr. J. H. Hicks said that he did not treat Thomas during his life, but was called in when he died.

"Q. What was the cause of the death? A. Acute indigestion. Q. Was it complicated with any other disease, acute or chronic? A. Not that I know of."

you have gone into detail and made inquiry? A. Certainly, I would have wanted to know what it was he had been suffering with, and had a physician for, and the doctor, and how long the spell lasted, and how many days he was sick, so the chief physician could have formed a diagnosis. Q. As I understand the term, 'indigestion' is rather a lay term-that is, a term used by those who are not members of the medical profession-and it is rather a general expression covering a number of things that might or might not be diseases? A. Yes, sir. Q. What did you report in that proof of death as the cause of death? A. Acute indigestion. Q. Upon what information did you make up this death certificate? A. By seeing him there in bed, and my casual examination, and what the parties in there said. Q. Who were the parties? A. I can't call their names. don't remember; there were several up there. His wife was there."

I

Dr. Charles A. Edelen testified that he was a medical examiner for several insurance companies.

"Q. Are you acquainted with the character of risk ordinarily assumed by the companies in the usual course of their business of life in

He was then asked and made these

answers:

Dr. J. M. Berry testified that he examined surance? A. I am." Thomas when he applied for the insurance; that he asked him all the questions in the application, and wrote down the answers that Thomas made; that there was nothing in his personal appearance that would indicate that he was suffering from any form of disease or indigestion; that he appeared to be in fine health, and in making out the application, and reporting to the Woodmen, he relied entirely upon the answers made by Thomas in his application; that he was called to his house the day he died, shortly afterwards, and from information gathered from the family his conclusion was that his death was caused from acute indigestion.

Asked:

"Q. In the usual course of business in all insurance companies, would or not the insurprior to that application for insurance suffered ance company accept a risk, a person who had from acute indigestion, gastritis, or disease of the digestive sytem? A. Any physician would hardly accept any application or recommend any application for insurance who had frequent attacks of acute indigestion or gall stone colic-which is mostly the case in those conditions; that is a gall stone colic. No physician would recommend an applicant of that kind for They might do this; they might put it up to insurance in any of the old-line companies. the company, which would in all cases be declined or referred back to the medical examiner; and in cases of gall stone colic, should the gall stone be removed, afterwards they might be recommended for life insurance, but under no circumstances would we accept a man who had frequent attacks of gall stone colic, or bilious attacks, or acute indigestion as they call it. Q. In the usual course of business, what would a company do if an applicant simply stat

"Q. Is indigestion material to the risk in an insurance application on a man's life? A. Well, I don't know, sir, that it is; I can't say that it is. Q. Assuming that Mr. Thomas had reported to you, at the time you secured this personal history from him, that he had spells of indigestion at various times? A. I would have stated on the application blank, to let the company-the chief physician-pass upon it; because people sometimes suffer from very slighted that he had some indigestion? A. If the apindigestion, from overeating. Q. Did you, or not, have anything to do with the acceptance or rejection of this application for insurance? A. No, sir. Q. If Mr. Thomas, in making to you this personal history, had said to you in the course of that history that he had indigestion, would you in that event have inquired as to the number of spells he had, as to whether or not they were light or serious. A.

plicant would say to the medical examiner that he has a slight case of indigestion, the examiner would recommend him to the insurance company; the insurance company would then take it up with the medical examiner, and have him make thorough examination, and find out to his own satisfaction that it was not gall stone colic. Q. Assuming that this applicant had had, about three months prior to his application for in

surance, a very severe attack of indigestion, and just prior to that time, something like six months, had had an attack of gastritis, what would have been the policy of the company in a case of that sort, assuming that the applicant stated that in his application for insurance? A. He would have been declined."

Dr. F. W. Samuels, who was examiner for several insurance companies, was asked: "Q. Please state whether or not you consider diseases of the digestive organs, including indigestion, or acute attacks of indigestion, or colic, material to the risk. A. I do. Q. In the usual course of business, would an insurance company accept as a risk an applicant who had had an acute attack of indigestion, a month or two, or perhaps a shorter time, prior to the making of his application for insurance? A. An attack of acute indigestion would not make one an unfit applicant for risk, because acute indigestion means nothing. Q. Suppose, now, a man had several attacks, and had been suffering from indigestion, what would have been the policy of the insurance company in the usual course of business? A. To defer the risk until it could be found what was the matter with him. Q. Suppose à man made an application for insurance, and he stated he had indigestion, or acute indigestion, or a disease of the digestive organs, what would the company do? A. A disease, you know, is quite different matter. Acute indigestion is purely a symptom; disease means a different thing. Any disease of the digestive tract would cause him to be at once turned down as far as any regular company is concerned, for good and forever. Q. Suppose a man, in answer to this question, 'Have you now or ever had any disease of the following named organs, or any of the following named diseases, or symptoms: Colic, or gall stone, indigestion, or other disease of the digestive system?' had answered, 'Yes'? A. Then he would be turned down or deferred indefinitely. Q. In the usual course of business, what would insurance companies do with such an applicant? A. They are declined as a rule at the home office, even though the examiner here should recommend them, they would take no stock in his statement whatever, just decline him; at least, those I have anything to do with would. Q. Would any information of the insurance company to the effect that a person had had an attack of acute indigestion have caused the company to make a complete investigation as to the duration and frequency of the attacks before issuing a policy. A. Certainly it would; they would hold as suspicious all those things such as symptoms you have enumerated. As I say, they would hold the case suspicious until his condition is proven innocent and not malignant. Q. Would your insurance company consider those diseases as material as any other disease the person might A. Colic is not disease, you know; it is only a symptom."

have?

indigestion a fatal disease? A. Well, not nec-
Q. Are
essarily, until it is an acute attack.
you an examiner for any insurance company?
A. Yes, sir. Q. If a person states in his ap-
plication for insurance that he has been suf-
fering from indigestion, or a disease of the
digestive system, what is the usual and ordi-
nary course taken by a physician in reporting
on such applicants? A. Well, if there is any
gastritis or dyspepsia to amount to anything, I
think he would be turned down. Q. As a mat-
ter of fact, gastritis is a disease, is it not?
A. Surely, yes. Q. Now, indigestion is not a
disease, is it? A. Gastritis and indigestion is
the same thing."

Mrs. Susie Thomas said that Mr. Thomas was only sick about an hour before he died; that a few days before he had a similar attack; that his health had been generally good, except that he was sick in 1912, when Dr. Berry waited on him. Other witnesses testified to the same effect as Mrs. Thomas concerning the general good health of Thomas.

[1] This evidence shows beyond question that Mr. Thomas for three or four years before his death had been suffering with severe spells of indigestion, some of them so serious as to leave him apprehensive that they would result in his death, and it is also Very clear that he knew that these attacks were caused from indigestion or some serious We say disorder of the digestive system. was an intelligent this because Thomas well-informed man, who had been selling for several years a patent medicine that he was in the habit of using to obtain relief from the attacks he suffered with. It is also undisputed that within five years before his death he had been treated by a physician for gastritis, which is a form of indigestion, and was advised by him of the nature of his ailment. The evidence that Mr. Thomas knew that the attacks he suffered with were caused by indigestion is conclusive; but it is earnestly insisted that he did not recognize his ailment as a disease, and never considered that his digestive organs were diseased, and, this being so, the answers made by Thomas to the questions before referred to were not false.

Much emphasis is put upon the fact that in these questions he was asked if he now or ever had "any disease," or "diseases," such as indigestion, or any other “disease of the digestive system"; that the question as to whether he had been attended by a physician also contained the word "disease"; that accordingly it must be made to appear, in order to defeat the recovery on the policy on the ground that these answers were false, that Thomas had a "disease" or a "diseased" condition of the digestive system. It will be observed, however, that the first question is not confined to "diseases," "Q. Did he tell you it was indigestion from but includes "symptoms"; the question be

Dr. M. Phelps testified that he knew Mr. Thomas, who told him about two weeks before he died of having a bad attack of indigestion the night before.