
    Helwig v. Mutual Life Ins. Co.
    
      (Supreme Court, General Term, Second Department.
    
    December 10,1890.)
    1. Action on Life Insurance Policy—Evidence.
    Under a condition in a policy of life insurance that proofs of loss should be accompanied by a statement by the physician attending the deceased in his last illness, such statement was made in the form of answers to questions printed in a blank furnished by the company. Held, that it could not be used as evidence against plaintiff in an action on the policy.
    8. Same—Application.
    The application for a policy of life insurance contained a statement, warranted by the applicant to be true, of the name of the last physician by whom he had been attended. In an action on the policy, on evidence that another physician had attended him at a later date, before his application, defendant requested that a verdict be directed in its favor. The court instructed the jury that i'' such attendance was for a real or supposed disease the verdict should be for defendant. Held, that this'limitation was proper.
    Appeal from circuit court, Kings county.
    Action by Ida K. Helwig against the Mutual Life Insurance Company of New York, on a policy of insurance issued by defendant on the life of plaintiff’s husband, Richard W. Helwig. From a judgment for plaintiff entered on the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals.
    Argued before Barnabd, P. J., and Dykman and Pratt, JJ.
    
      Sewell & Pierce, (Robert Sewell, of counsel,) for appellant. Max Brill, (A. Simis, Jr., of counsel,) for respondent.
   Pratt, J.

We do not perceive any principle upon which the statement of the attending physician, accompanying the proofs of death, can be regarded as legal evidence in favor of either party to the action. Ordinarily, it may be said that a party who makes use of an affidavit thereby holds it forth as truthful. But we think the present case is an exception to the general rule; for it was a condition of the policy that the proofs of loss should be accompanied by the statement by the physician who attended the deceased in the last illness. The questions were upon a printed blank furnished by the company. It is not to be supposed that the claimant could control the responses, or was. in any degree responsible for' their correctness. Had the forwarding of the physician’s affidavit been a matter of choice with the claimant, it might well be argued that the statement was put forward as truthful, and was evidence against the party using it. But as the claimant had no option, and was. compelled by the contract to forward the statement, it cannot be used as evidence against her.

The application contained a statement by the deceased that the last physician by whom he was attended was Doctor Langsmann. Evidence was given, to the effect that Doctor Fuhs attended him at a later date; and the court on that ground was asked to direct a verdict for defendant. That request was refused, but the jury was instructed that, if the attendance was for a real or supposed disease, the verdict should be for defendant. We think the limitation was a proper one. The subject brought to the attention of the applicant by the question was as to the physican last attending him for a disease. If a. physician attended on the applicant to urge him to accept a nomination for-an office, while within the literal terms of the question, it would not be within its real scope. The evidence gave some ground to suppose that at the instance-of a third party a physician called upon the deceased, who declined to take his. medicines and care. We think the circuit judge correctly held that was not. such an attendance as to violate the warranty. Judgment affirmed, with, costs.  