
    BECKER v. METROPOLITAN LIFE INS. CO.
    (Supreme Court, Trial Term, Chenango County.
    March, 1904.)
    1. Witness—Peivileged Communications.
    In an action on a life insurance policy defendant alleged that insured, before the issue of the policy, had had an attack of apoplexy, which he concealed from the insurer. The proofs of death contained a certificate of the attending physician of the insured stating that the cause of death was apoplexy, and that the physician had attended the insured at the time of the alleged prior attack. Mela that, while the beneficiary may show that the certificate statement as to the prior attack of apoplexy was false, the physician was incompetent to testify in support of his certificate under Co.de Civ. Proc. § 834, relating to information acquired in professional capacity.
    Action by Martha Becker against the Metropolitan Life Insurance Company. Verdict for plaintiff. Motion for new trial. Denied.
    William H. Sullivan (H. C. Stratton, of counsel), for plaintiff.
    Martin T. Nachtmann, for defendant. '
   FORBES, J.

This action was brought to recover $1,000 under an insurance contract for the death of the plaintiff’s husband, who died of apoplexy. The case was submitted to the jury, which rendered a verdict for the plaintiff in the sum of $1,080. This is a motion for a new trial upon the minutes, under section 999, Code Civ. Proc.

The application for insurance was made April 18, 1900. The policy is dated April 20, 1900. The assured died April 3, 1902. The plaintiff is the beneficiary named in the policy. The defendant claims that the assured had an attack of “cerebral apoplexy” on the 30th day of October, 1899, and was treated for that illness, being confined to his house •several days; that these facts were concealed from the defendant’s agent at the time of making the application; and that the answers made by the assured were warranties, the breach of which makes the insurance void. The plaintiff put in evidence the application, the policy, and the proofs of-death, which showed, upon their face, that the plaintiff was not entitled to recover. The physician’s certificate of death showed the previous illness, upon which, with a statement in the plaintiff’s affidavits, the defendant sought to make a defense to the recovery under said insurance. The motion to nonsuit the plaintiff, the motion to dismiss the complaint, and the motion to direct a judgment for the defendant were made and denied over the defendant’s exceptions. Additional evidence was given to explain the proofs of death.

There are two or three exceptions which are to be carefully examined: Was the excluded testimony of Dr. Roper—the attending physician, who made the certificate of death—competent, where the defendant sought, by questions put, to show that he attended and treated the patient? The question was raised in several different forms, and was excluded under section 834, Code Civ. Proc. It already appeared upon the trial that this physician did attend the deceased, and had made a certificate of the cause of death. This evidence was put in by the plaintiff as a part of her case. Defendant was permitted to show without objection that the witness did visit the patient; that he prescribed for him at the patient’s house and at witness’ office. I am satisfied that further evidence was properly excluded. The evidence showed that he was the attending physician, and that he prescribed for the assured. It was necessary for the plaintiff to make proof of death and of the cause of death. The evidence that the witness signed the certificate of death would not have been competent if it had been offered on the part of the defendant. Davis v. Supreme Lodge, 165 N. Y. 159, 58 N. E. 891. The certificate showed the facts which the defendant sought to prove, and which were excluded under its exceptions. It is claimed under Patten v. United Life & A. Ins. Ass’n, 133 N. Y. 450, 31 N. E. 342, that the defendant had the right to show that the witness attended the patient in a professional capacity, the number of visits he made, and when those visits were made. While I do not find that this case has been criticized, it has been overruled in principle. Nelson v. Village of Oneida, 156 N. Y. 219, 50 N. E. 802, 66 Am. St. Rep. 556. It was shown on the trial that the witness’ certificate was false as to the prior illness. The effort on the part of the defendant was to show that the deceased had not only been previously ill, but that he died of apoplexy, of which, it is claimed, he had an attack in the month of October before the policy was issued. This oral evidence was excluded as privileged. The case of Griffiths v. Met. St. R. Co., 171 N. Y. 106, 63 N. E. 808, affirms the doctrine held in the Nelson Case, supra, except it holds that the burden of proof is on the party to show that the case does not come within the rule. The case holds that when it is necessary to enable him to act in his capacity of physician, the evidence is then privileged. This doctrine is held in Green v. Metropolitan St. R. Co., 171 N. Y. 201, 63 N. E. 958, 89 Am. St. Rep. 807; Deutschmann v. Third Ave. R. R. Co., 87 App. Div. 503, 84 N. Y. Supp. 887. The plaintiff had the right to show that the. statements in the certificate were not true. Kipp v. Metropolitan L. Ins. Co., 41 App. Div. 298, 58 N. Y. Supp. 494; Spencer v. Citizens’ M. L. Ins. Assn., 142 N. Y. 509, 37 N. E. 617; Hanna v. Connecticut Mut. L. Ins. Co., 150 N. Y. 526, 44 N. E. 1099. The plaintiff having explained and shown the untruthfulness of the physician’s certificate, the physician had no right to take the stand for the purpose of sustaining the certificate and contradicting the beneficiary. Nelson v. Village of Oneida, supra. Again, the witness was permitted to testify to nearly every fact sought to be raised under the exceptions taken. Some of the questions asked called for the conclusion of the witness, while others are clearly inadmissible or are cumulative, and were properly excluded.

The request to charge, at page 173, is covered by the evidence admitted, and is all the defendant could require. The court was requested to charge that the proof shows that the deceased suffered from cerebral apoplexy on the 30th day of October, 1899, and was treated by Dr. Roper thereafter, and the illness was for 12 days. The court so charged. This evidence is shown by the certificate, but is contradicted and explained. The court also charged, at page 175, the request, as made, that the proofs of death are prima facie evidence against the plaintiff, and, if unquestioned, are conclusive. The court also charged that the certificate of Dr. Roper, attached to the proofs of death, is not privileged under the statute. This is so because it was put in by the plaintiff herself, and she therefore waived that privilege to this extent. The exception to the request to charge said modified statement is not well taken. The ruling at page 177 is correct. While it may be admitted that the plaintiff authorized a statement to be made by the physician, she was not bound by an unauthorized false statement. That statement was made in her absence. The evidence is positive that she never saw the statement, and that its contents were neither read nor disclosed to her. That statement, as made, was unauthorized and false in fact. Whether the insured was sick or not, and the extent of that illness, was a question of fact for the jury. See authorities, supra; Crosby v. Security Mut. L. Ins. Co., 86 App. Div. 89, 83 N. Y. Supp. 140.

The question of fact was not submitted to the jury as to whether the contract constitutes a warranty; but whether there was a breach of warranty is a question of fact for the jury where there is a dispute. Schane v. Metropolitan L. Ins. Co., 76 App. Div. 271, 78 N. Y. Supp. 582; Dwight v. Germania L. Ins. Co., 103 N. Y. 341, 8 N. E. 654, 57 Am. Rep. 729. I am inclined to think that the case was properly submitted to the jury. The motion for a new trial is denied, with costs. Motion denied, with costs.  