
    Sarah Roche, Respondent, v. Supreme Lodge, Knights of Honor, Appellant.
    
      Life insurance — warranty as to the time when the insured last consulted a physician— any professional consultation constitutes a breach if had after the time-specified, although not for a disease.
    
    Where, by the terms of a life insurance policy, the answer of the insured to the question (contained in the medical examiner’s blank), “How long since you were attended by a physician, or have professionally consulted one?” is made a warranty, any consultation with a physician, had after the time specified in the assured’s answer, constitutes a breach of the warranty, irrespective of whether the consultation was because of a mere fancied ailment, or because of one which did or did not come within the meaning of the term “disease.”
    In such a case it is immaterial that the question following the one under consideration is “For what disease?”
    Patterson and O’Brien, JJ., dissented.
    Appeal by the defendant, Supreme. Lodge, Knights of Honor,,' from a judgment of the Supreme Court- in favor of the plaintiff,: entered in the office of the clerk of the county of Hew York on the 27th day of January, 1897, upon the: verdict of a jury, and also from an- order hearing date the 26th -day of January, 1897, and entered in said clerk’s office, denying the defendant’s motion for a new trial .made upon the minutes.
    
      W. R. Spooner, for the appellant.
    
      W. B. Donihee, for the respondent.
   Van Brunt, P. J.:

The defendant in this case is a mutual benefit fraternity society, and in October, 1895, it issued to one John Roche a “benefit certificate by which it agreed to pay $2,000 benefit to his wife-, the plaintiff, in the event of his death while in good standing. Among other conditions contained in the certificate was one whereby the statements of the assured in his petition for membership and to the medical examiner were made a part of the contract and were warranted by him to be true. Among other questions answered to the medical examiner were the following: “Q. How long since you were attended by a physician or have professionally consulted one % A. Hot for two years. . Q. For what disease ? A. Cold.”

In March, 1896, John Roche having died, proofs of loss were made and served on the defendant, and the amount of the benefit certificate not having been paid, this action was brought to recover the same. The defendant, in its answer setting up the above statements and warranty, alleged a breach thereof in that the deceased had consulted a physician professionally within two months prior to the time' of his petition for -membership, and that the disease for which he had then professionally consulted and was attended by said physician Avas rheumatism.

Upon the trial'of the action Dr. Henry was examined as a witness and testified that in July, 1895, on the tenth and twenty-second, he attended Roche professionally at his house, and treated, him for rheumatism in one of his knees. Upon cross-examination he further testified that he did not examine Roche, and that of his own lmoAvledge, "without reference to what he saw — objective-symptoms or anything of that'kind — he did not know that he had any rheumatism. He further testified that when he called the assured told him that he was sick and had a pain in the lcnee.

Other evidence was taken during the course of the trial, but it is not necessary to discuss the same in view of the conclusion at which we have arrived.

The learned court in submitting the case to the jury charged as follows: “ Now, the allegation here is that because you said you were never attended in two years by a physician, therefore, this policy is void. Well, gentlemen, I say so. If there was any disease that he was attended for, you are to apply the same reasoning to this as to the other. A physician may be called to stitch up a cut; he may be called for any purpose that falls short of what you term to be a disease without vitiating this policy, and you are to say now whether there is any proof in this case that he was ever attended by a physician for any disease within two years; attended by a physician or consulted one within two years.”

The defendant’s counsel thereupon asked the court to charge that any untrue statement that applicant had not been attended by or professionally consulted a physician for over two years was a breach of the warranty, and that on such untrue statement plaintiff could not recover. The court answered: “ I refuse to charge it, unless for a medical attendance, if the medical attendance was for some affair so trifling as not to come within the definition of disease to be treated by a physician.” An exception was duly taken to this ruling.

•This seems to have been clearly error. The question put to the assured was, “ How long since you were attended by a physician or have professionally consulted one?” and the answer was, “Not for two years.” ■ The fact of disease had nothing to do with the question. It was the professional consultation, the consultation in regard to his physical condition. It might be that the physician would discover that there was no disease, whereas the patient thought he had one. Still, it would be a breach of the warranty, because there would be the professional consultation. It is true that this question was followed by the question, “For what disease?” and the assured answered, “ Cold.” But it was clearly immaterial whether he had a cold or whether he had rheumatism, so long as the fact existed that there had been a professional consultation. Therefore, the court -erred in its charge in associating the question of disease with the professional consultation.

It is urged upon the part of the respondent that because the court, at the request-of the defendant’s counsel, charged that the agreement in the application of the deceased constitutes a warranty, and that any untrue statements made by the deceased in his application, or in his statements to the medical examiner, constitute a breach of the war- • ■ ranty, these instructions disposed of all other exceptions which con-; cerned Roche’s answers in the application and medical examiner’s blank. But we do not think that this .position is well taken. The court had repeatedly instructed the jury that they -must find that there was the consultation of a physician in respect to some disease which was disclosed in .the testimony, and that if there was not that consultation there was no breach. He had already instructed the jury that the professional consultation and disease were combined in the representation, and yet he charged the jury that any untrue statements of the assured made in his application, or to the medical examiner, would constitute a breach of the warranty. The jury clearly measured these untrue, statements by the standard which' the-court had set up for their guidance. We think that the defendant was entitled to the charge requested by it, and that it was error to refuse or qualify it in the manner in which it was done by the court.

The judgment and order must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Rumsey and Ingraham, JJ., concurred ; Patterson and O’Brien, JJ., dissented.

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