
    Michael Lynch, Respondent, v. The Germania Life Insurance Company, Appellant.
    Third Department,
    May 5, 1909.
    Insurance—waiver of warranty — facts raising, question for jury — evidence — application made to other insurer—when statements to physician not privileged.
    An insurance company cannot assert the breach of a warranty that the insured had never applied for other insurance and been rejected where at the time of issuing the policy it had knowledge of such fact.
    Evidence in an action upon a policy of life insurance examined, and held, to raise a question for the jury as to whether the insurer’s agent had correctly transcribed statements of the insured relating to consultations had with physicians prior to her application.
    Where in a policy of life insurance the insured made a warranty that she had not applied' for other insurance and been rejected, her application made to another company which declined the risk is admissible in an action on the policy.
    So, too, a physician acting for the other company which declined the risk is a competent witness to show the state of health of the applicant. His testimony is not privileged under section 834 of the Code of Civil Procedure inasmuch as the information was acquired not, while rendering professional services to the-applicant but while acting as agent for the insurance company.
    Appeal by the defendant, The Germania Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 26th day of October, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 11th day of November, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Shaw, Bailey & Murphy [H. D. Bailey of counsel], for the appellant.
    
      Lewis E. Griffith, for the respondent.
   Kellogg, J.:

The defendant resists the claim of the plaintiff, the beneficiary in the policy issued; upon the life of Mary E. Le Maire, upon the ground of misstatement of facts in the application, which statements were agreed to be warranties upon the faith of which the policy issued. The applicant stated as such warranties : (1) That no application for insurance upon her life had ever been rejected or modified; (2) that she never had been examined for insurance without getting a policy ; (3) that she never had had any disease of the heart; (4) that she had not consulted a physician for sixteen years except' Dr. McGee in confinement; (5) that no physician had ever given an opinion that she was not safely insurable.

The applicant had made a previous application to the Prudential Life Insurance Company, which had been rejected. But the evidence tends to show that the defendant had some' knowledge that she had been previously rejected by some company. If the defendant had knowledge of the facts it cannot rely upon the breach of warranty in that respect. Upon the evidence it is a fair question of fact whether the company relied and acted upon this warranty or whether it was immaterial in view of the knowledge which it had otherwise gained.

January 5, 1906, the application for this policy was made. It appeared that the applicant, in December, 1905, had consulted Dr. -Irish and he had been to her house for the purpose of examining her and did treat her as his patient. The plaintiff- meets this situation by the testimony of his brother who swears that he happened to go into the room when the sister, the applicant, was being examined for this policy, and that she stated to t'lie examining physician, in answer to the question whether she had consulted a physician or had had any diseases, in substance that she had’.consulted- several physicians for various matters which a woman might be subject to, seeking to raise the inference that the physician did not correctly write her answer.

Without considering the admissibility of this testimony it is sufficient to say that it was contradicted by the application itself, and that this evidence and the application raised a question for the jury as to whether the application signed by her gives the correct answer or whether the oral testimony of the brother contains the answer she gave. The evidence tended to show that the witness was interested.

Exhibit No. 4, the application to the Prudential Company upon which it declined the risk, tended to contradict the statement of the applicant as to her consulting a physician, and should have been received in evidence. Dr; Zeh, the physician who examined her in the'interest of the Prudential and upon whose recommendation the risk was declined, was a competent witness to show the state of health of the applicant, and his statements to her would tend to show her knowledge of the condition of her health and that she was not insurable. His testimony was not privileged under section 834 of the Code of Civil Procedure. The information he was asked to give was not acquired by him while attending a patient (Meyer v. Knights of Pythias, 178 N. Y. 63), but. was obtained for the benefit of the company for which he was acting as agent. (Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13.) It was intended that the information received by him should be communicated to his company to enable it to determine whether the person examined was a proper risk for insurance. The object of the examination was not treatment but to acquire information for the benefit of the company. The judgment and order should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

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