
    William Van Bergen, Respondent, v. Catholic Relief and Beneficiary Association, Appellant.
    
      Testimony of a physician, in an action on an insurance certificate, as to the age of a still-born child of the insured, decedent—the burden of showing its incompetency rests on the plaintiff.
    
    In an action brought to recover upon a benefit certificate issued by the defendant, a life insurance association, upon the life of the plaintiff’s wife, the defendant interposed the defense that the insured falsely answered “No” to the question, “Is she pregnant?” propounded to her.by the defendant’s medical examiner. The benefit certificate was dated August 6, 1902, and on October 13, 1902, the insured gave birth to a still-born child. The insured died October 26, 1902. The physician who attended her at the birth of the still-born child was asked as to the age of the child, which question was objected to as incompetent under section 834 of the Code of Civil Procedure. Upon being examined by the plaintiff’s counsel, preliminary to a ruling upon the objection, the physician testified: “I was attending Mrs. Van Bergen in a professional capacity. * * * I visited her and prescribed for her as her physician. Whatever I know or learned I knew and learned in that capacity. Such information was necessary to enable me to treat the case.” The former question as to the age of the child was withdrawn and the following question was asked in place thereof: “Q. How many days or months of gestation had elapsed between the conception of that child and the time of its birth? ” This was objected to on the same ground.
    
      Held, that the ruling was correct, particularly as the question objected to was broad enough to permit the witness to give in answer thereto any information which the mother had given to him, as well as any information which he might have obtained solely from an inspection of the child;
    That, while the burden was upon the plaintiff to show, if the fact did not otherwise appear, that the information sought to be elicited by the question was within the prohibition of section 834 of the Code of Civil Procedure, he had successfully sustained that burden when he elicited from the witness the statement that whatever he learned he learned in his professional capacity as a physician, and that such information was necessary to enable him to treat the case;
    That the effect of such testimony was not rebutted by the fact that the defendant asked the witness the following question: “Q. The mere fact of the birth of the child didn’t enable you to diagnose the previous condition of the woman to enable you to treat her. You diagnosed that without seeing the child, didn’t you?” and that the witness answered “Yes.”
    Appeal by the defendant, the Catholic Relief and Beneficiary Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Albany on the 19th day of January, 1904, upon the verdict of a jury, and also from an order denying the defendant’s motion for a new trial made upon the minutes. The record, however, does not contain this order.
    
      John M. Murphy, for the appellant.
    
      Edgar T. Chapman, Jr., and Timothy Roland, for the respondent.
   Chester, J.:

Counsel for the appellant relies upon a single exception to secure a reversal of this judgment.

The action is upon a beneficiary certificate issued by the defendant to Catharine Van Bergen, the wife of the plaintiff, dated August 6, 1902, whereby the defendant insured the life of the plaintiff’s wife for his benefit in the sum of $500. She died October 26,1902. The defense is that in answer to the question put to her by the defendant’s medical examiner, “Is she pregnant?” she falsely answered, “No,” by reason whereof the certificate, under the terms of her application therefor, is void.

On the trial the medical examiner who wrote her answer for her testified that he put it down just as she gave it, and that he was positive she answered, “No.” Her husband, the plaintiff, on the other hand, testified that he was present and heard the question asked, and that her answer was, “ Not that she knew of.” It was shown that on the 13th day of October, 1902, she gave birth to a still-born child. The physician who attended her at that time was sworn for the defendant. He was asked as to the age of that child. The question was objected to as incompetent under section 834 of the Code of Civil Procedure. Upon being examined by plaintiff’s counsel preliminary to a ruling upon this question, he testified: “ I was attending Mrs. Van Bergen in a professional capacity. * * * I visited her and prescribed for her as her physician. Whatever I know or learned I knew and learned in that capacity. Such information was necessary to enable me to treat the case.” The former question as to the age of the child was withdrawn and the following question was asked in place thereof: “ Q. How many days or months of gestation had elapsed between the conception of that child and the time of its birth ? ” This was objected to on the same ground. The objection was sustained and the defendant excepted.

The purpose of the question clearly was not to ascertain the age of the child en venire sa mere, but was to show the length of time the mother had been pregnant and to show that she was in that condition and knew it when she made her application. The burden was upon the plaintiff to show, if it did not otherwise appear, that the information sought by the question was within the statutory exclusion. (Edington v. Ætma Life Ins. Co., 77 N. Y. 571.) This burden was satisfied when the plaintiff procured from the witness the statement that whatever he learned he learned in his professional capacity as a physician and that such information was necessary to enable him to treat the case. It is not to be expected that the trial court, who is not presumed to be an expert upon matters of this kind, should hold, in the face of this evidence from a physician, that the information was not necessary to enable him to prescribe for his patient. The only attempt by the defendant to rebut this testimony was in a single question as follows: “ Q. The mere fact of the birth of the child didn’t enable you to diagnose the previous condition of the woman to enable you to treat her. You diagnosed that without seeing the child, didn’t you?” The witness answered, “ Yes.” Whether he meant by the affirmative answer to this compound question to testify that the fact of the birth of the child enabled him to diagnose the previous condition of the mother to enable him to treat her or that he could make that diagnosis without seeing the child is not clear. It may be presumed, however, that his answer was intended to be to the last and not to the first portion of the question and yet the position of the defendant is not helped. The age of the child, except as that revealed the condition of the mother, was wholly immaterial, and the physician’s testimony being privileged under section 834 of the Code of Civil Procedure with respect to a direct question asking for information concerning the condition of his patient which he acquired while treating her and which was necessary to enable him to do so, the privilege must also be held to extend to all such information sought for by indirect questions or methods, else the purpose of the law may be entirely circumvented.

More than this, the question objected to was broad enough to permit the witness to give in answer thereto any information which the mother had given to him, as well as any which he might have obtained solely from an inspection of the child.

We think that the ruling excepted to was correct and that the judgment and order should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  