
    Elizabeth Carmichael, Respondent, v. The John Hancock Mutual Life Insurance Co., Appellant.
    (Supreme Court, Appellate Term,
    October, 1905.)
    Insurance — Actions on policies — Breach of warranty must be pleaded — Avoidance of policy — Warranty not dependent on knowledge of assured — Complaint — Amendment to conform to proof.
    In an action upon a policy of life insurance, breach of warranty is an affirmative defense which the defendant must both plead and prove.
    Where the complaint, in such an action, set forth the policy and the application, declaration and warranty signed by the insured, and alleged that he had complied with the terms and conditions of the policy and had fully carried out the terms agreed upon thereunder, and the proof shows that certain questions had, in fact, been correctly answered but incorrectly recorded by the examining physician of the company, there is no variance; and, the evideuce being competent under the pleadings as originally drawn, an amendment of the complaint to conform to the proof is proper.
    Where one of the conditions of a policy of life insurance was that it should not be binding upon the company unless at noon of its date, the insured should be in good and sound health; and where the primary cause of his death, within the succeeding three months, was “ laryngeal cancer ” and the secondary cause “ hemorrhage,” and there was expert testimony to the effect that if he died of hemorrhage, induced by cancer, he could not have been in good health on the first of the previous July, a refusal to charge that, if the jury believe that he was not in good and sound health on the day the policy was issued, irrespective of whether the insured knew it or not, the policy never had any inception or binding force and the plaintiff could not recover, is reversible error.
    Appeal by the defendant from a judgment entered in favor of the plaintiff after a trial before the court and a jury in the Oity Court of the city of New York.
    Langbein & Langbein (Leonard J. Langbein, of counsel), for appellant.
    Nathaniel Levy, for respondent.
   Scott, J.

In this action upon a policy of life insurance, the plaintiff set forth, in part of her complaint, not only the policy, but also the conditions and provisions endorsed thereon, and the application, declaration and warranty signed by the insured. The latter consisted of answers to a number of questions and a declaration by the insured in which he warranted that the representations and answers made therein were complete, strictly correct and true; that any false or untrue answer should render the policy null and void, and that the policy should not be binding upon the company unless, at noon upon its date, the insured should be alive and in good and sound health. The complaint further alleged that the insured “in every way complied with the terms and conditions of said policy and fully carried out the terms agreed upon under the said policy.” The answer* alleged breach of warranty, in that certain answers, made by tito insured as to his then condition of health, previous consultation with and treatment by physicians and as to diseases he then or previously had, were false and untrue; and that said insured on the date of the policy was not in •sound and good health. Among the questions asked and answers given were the following: “ Q. When did you last consult a doctor and for what? A. Not to his knowledge. Q. Have you ever received treatment at any hospital, dispensary or other institution ? If so state when and for what. A. No.” It was clearly shown, by plaintiff’s own testimony, that these answers were untrue; and, thus, the defense of a breach of warranty was apparently sustained. To avoid this result the plaintiff was permitted, under proper objection and exception, to show that those answers were not written down by the insured, but by the examining physician of the defendant company; that the insured had, in fact, answered them correctly and in accordance with the facts, as they were proven upon the trial; but that the physician had incorrectly recorded the answers. This evidence was competent if, owing to the nature of her pleading, the plaintiff was in a position to offer it. Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13. The defendant now insists, however, that to permit the introduction of this evidence was to change the issue made by the pleadings; that, as the plaintiff had relied upon the policy and the application and had pleaded strict compliance therewith, she should not have been allowed to recover upon the theory that the application and warranty were not, in so far as they were shown to have been false, the true act and warranty of the insured. It is quite true that one cannot sue upon a contract, alleging strict performance, and succeed byi proof of a waiver of performance, or an excuse for nonperformance. This is not, however, such a case. It is true that the plaintiff alleges performance by the assured of all the terms and conditions of the policy; which means, among other things, that he made truthful answers to all the questions put to him, but does not necessarily mean that all the answers made for him by the company’s representative were true. Breach of warranty is an affirmative defense which it is incumbent upon the defendant both to plead and prove. Jacobs v. Northwestern Life Assurance Co., 51 N. Y. Supp. 967. The medical examiner was the agent of the company in making the examination, taking down the answers and reporting them to the company; his knowledge, thus acquired, his interpretation of the answers given and his errors in recording them are the knowledge, the interpretation and the errors of the company itself, which is estopped from taking advantage of what it thus knew, and what it had thus done when it issued the policy and accepted the premiums. Sternaman v. Metropolitan Life Ins. Co., supra, 25. There was no variance between the pleading of full performance and the proof that certain questions, which had apparently been incorrectly answered, had, in fact, been correctly answered although incorrectly recorded. If, as we think, the evidence was competent under the pleadings as originally drawn, the amendment of the complaint to conform to the proof did not harm defendant and need not be considered. We think, however, that the court erred in its refusal to charge one of the requests made by defendant. It was one of the conditions upon which the policy was issued, that it should not be binding upon the company unless, at noon upon its date, the insured should, be alive and in good and sound health. The policy was dated July 1, 1903, and the insured, died on September 23, 1903. The evidence was, that the primary cause of death was “laryngeal cancer,” and the secondary cause of death “hemorrhage.” There was, also, expert evidence to the effect that, if he had thus died on September twenty-third, of hemorrhage induced by cancer, he could not have been in good and sound health on the first of the previous July. The defendant requested the court to charge that “ If the jury believe the fact, irrespective of whether the deceased knew it or not — that he was not in good and sound health on the 1st of July, 1903 — then this policy of insurance never, had any inception or binding force on the defendant, and that the plaintiff cannot recover.” This was refused. The condition of the policy was absolute. The contract was never to take effect if, at its date, the insured was not in sound health; not if he knew himself to be in bad health. It was the fact of his condition of health, and not his knowledge of the fact, which was agreed upon as the condition. to determine whether the policy should become effective or not. Breeze v. Metropolitan Life Ins. Co., 24 App. Div. 377. The jury might, or might not, have found that the insured was in unsound health at the date of issue of the policy; but the defendant was clearly entitled to have the question submitted to them in the form it requested. What the court did say upon the subject by no means satisfied defendant’s legal rights. Other exceptions have been pressed upon our attention which we do not deem it necessary at this time to consider. For the error pointed out above, the judgment must be reversed and a new trial granted with costs to appellant to abide the event.

Bischoff and Fitzgerald, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  