
    TOOKER v. SECURITY TRUST CO.
    (Supreme Court, Appellate Division, Second Department.
    February 15, 1898.)
    1. Lire Insurance—Payment op Premium—Inception op Risk.
    Where the agent of a life insurance company, to whom had been sent the policy in question, with a receipt for the premium, signed by the vice president, and containing on the back thereof a clause authorizing the payment of premiums “to an agent producing a receipt therefor, signed by the * * * vice president * * * and countersigned by such agent,” on delivery of such policy took the notes of the son of the insured for the premium, and a few days later the check of such son’s wife in payment thereof, and thereupon delivered the premium receipt, countersigned by himself, and remitted to the company by his own check, such policy had its inception on the day of the delivery thereof.
    2. Same—Expert Testimony—Rights op Witness.
    Where a medical witness called for defendant in an action on a life insurance policy declined to answer a certain question on the ground that it called for expert testimony, an exception, on behalf of defendant, to a ruling that such witness had “the right to take that position,” was untenable.
    8. Same—Application—Warranty.
    The omission, by the agent of a life insurance company, in drawing up the application of the insured, to mention a slight ailment with which he had recently been affected, but from which he had entirely recovered, did not constitute a breach of warranty in the policy.
    Appeal from special term, Westchester county.
    Action by Joseph H. Tooker, Jr., against the Security Trust Company, on a policy of life insurance issued by the defendant company. From a judgment in favor of plaintiff, defendant appeals.
    Affirmed.
    Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.
    Oliver P. Buel,. for appellant.
    Wilson Brown, Jr., for respondent.
   GOODRICH, P. J.

The plaintiff is the assignee of a policy of $5,000 insurance written by the defendant, a Pennsylvania corporation, on the life of the plaintiff’s father. In January, 1896, the father made application in writing to the defendant, through Seymour L. Bau, for insurance on his life to the amount of $5,000. Two policies, of $5,000 each, and numbered 597 and 598, were delivered by the defendant to Fleming & Kell, its general agents and managers in the city of New York, who had full power and were authorized by the defendant to effect insurance by such insurance policies upon the life of the insured. Fleming & Kell placed the policies in the possession of one Leach, who handed them to Bau, with whom he was associated in the business. Bau delivered policy 598 to the insured, the first premium being paid simultaneously therewith. There is evidence tending to show that although Tooker, the insured, had applied for one policy of $5,000, the defendant, or its agent, was desirous of issuing the second policy, numbered 597, but that such policy, after being held by the agent for some time, was returned to the company, which, in place of it, issued the policy in suit, numbered 1,541, and this was also sent to Leach. The original application, upon which the first two policies were issued, was on March 3d amended in some particulars, to which

reference will hereafter be made. The policy in suit was dated May 2d, and was sent by the defendant to Fleming & Kell, who on May 4th sent it to Leach, in a letter reading: “May 4th, 1896. We inclose herewith policies 1,541, J. H. Tooker, $5,000; 1,542, F. A. Schultz, $5,000. Please have health certificates signed before delivering policies.” Leach handed the envelope containing the policy to Bau, who testified that there was no receipt for premium or health certificate in the envelope. On several occasions thereafter, Bau endeavored to persuade Tooker to take the policy and pay the premiums, but it was not until the 1st day of July that the policy was delivered to Tooker or his son, the plaintiff, after Bau had threatened to return the policy to the corporation unless the affair was settled on that day, when, for the premium of $589.50, at the suggestion of Bau, two notes of the son were given, and the policy delivered to the insured. It appeared that the father was not prepared to pay the premium in cash, and was prevented by the articles of his partnership from giving notes. At this time the insured was apparently in good health. When the notes were given, Tooker told Bau that he would pay cash for them within a couple of days. On the 3d, Bau telephoned Tooker for the cash. Tooker told him that he had not given him the premium receipt, and Bau promised to take it up to him on Monday, the 6th, and on that day he handed it to Tooker. On July 3d, Tooker, after some indiscretions in eating, was suddenly seized with an acute attack of colic, from which, however, he recovered. It will be noticed that the following day, July 4th, was a holiday, and July 5th was Sunday. On July 6th the insured was at his office the whole day, and apparently in good health. That night he was taken suddenly ill, and died on July 7th. On July 6th the plaintiff’s notes were taken up and paid by a check of the plaintiff’s wife, to the order of Bau, and on the same day the company’s receipt for premium was handed to Tooker. Bau deposited this check in his own bank account, and on July 8th he sent his check to the general agents of the defendant, who subsequently, and after the death of the insured, returned the same to Bau. After the death of the insured the other children of the insured, and the executors of his will, in consideration of one dollar, assigned to the plaintiff the policy, and all their rights thereunder. Proofs of death and interest were delivered to the defendant in the latter part of July, which were received by the company without objection, and the $5,000 due on policy 598 were paid. The company on December 4th waived the making and filing of additional proofs of death under the present policy. The defendant denies that the first premium was ever paid, or that the policy ever had inception as a contract, and claims that if the policy was duly delivered, and the premium paid, the policy is null and void, by reason of breaches of warranty; its main contention being that there were misstatements or omissions in the application for the policy, in that the insured stated in his application that the last physician consulted by him was Dr. Skiff, in 1880, and that this was untrue, he having consulted other physicians at subsequent periods,' as late as the months of June and July, 1896. The issues were tried by the court, a jury having been waived, and judgment was entered for the plaintiff. From this judgment the appeal is taken.

The first question relates to the inception of the policy which required the payment of the premium in advance. The policy provides that the premium is payable at the home office of the company, in the city of Philadelphia, or that it may be accepted elsewhere in exchange for the company’s receipt signed by the president, vice president, actuary, or secretary. The receipt of the company, signed by the vice president, and countersigned on July 6, 1896, “by S. L. Rau, Agent,” was delivered to the insured or his representative on July 6th, after the check had been given to Rau for the payment of the notes of July 1st. The application and amendment hereafter referred to are on blanks of the company, and are signed by Rau as witness, while the premium receipt, also on a blank of the company, is signed by him as agent, and on the back is a clause authorizing the payment of premiums “to an agent producing a receipt therefor, signed by the president, vice president, actuary, or secretary, and countersigned by such agent”; and there is evidence tending to show that Rau had acted as agent for the company in obtaining several policies of insurance for other persons, and that in some of the cases the policies were delivered by Rau upon receiving the notes of the insured, without payment of the cash. These facts clothed Rau with apparent authority as an agent of the company. The acceptance by Rau of the notes of the son, and the delivery of the policy, ratified as it was by the delivery and acceptance of the wife’s check for the amount of the premium, and the delivery of the premium receipt, on the 6th of July, constituted a waiver of the conditions of the policy as to the payment of the premium in actual cash; and it follows, as a legal consequence, that the policy had its inception on the 1st day of July. To this extent Rau was the agent of the defendant, and his acceptance of the notes and check estopped the company to deny the receipt of the premium in accordance with the conditions of the policy.

The other defense, that the policy was null and void by reason of' breaches of warranty, is based upon the fact disclosed in the proofs of death, by which it appears that in February, 1896, Dr. Forman, who attended, the insured in his last sickness, made the following statement:

“Q. Were you the attending physician of deceased before his last illness? If so, for what disease or ailment were you consulted, or did you prescribe for, giving dates? A. Attended him for some trivial ailment (the nature of which I have forgotten), 1893. Feb’y, 1896, herpes zoster capitas.”

The proofs also contained the following statement:

“Date deceased first consulted you professionally? July 3, 1896, except as above mentioned. What was the nature of sickness or ailment? Obstinate constipation, with profound collapse. Duration of last illness? Five days, including dates of attack and death. Its predisposing causes, together with history and symptoms present during its progress? Can only designate fecal obstruction of bowel; intermittent pain; collapse. State the immediate cause of death? Heart failure.”

The defendant called Dr. Forman as its own witness, and he testified that he professionally attended the deceased for some trifling ailment in 1893. His attention was also called to the proofs of loss signed by him, in which he stated that he attended the deceased in February, 1896, for herpes zoster capitas; and he was asked for a definition of that disease, and whether it was what is commonly known as “shingles.” The witness declined to answer the question, on the ground that it called for expert testimony. The court stated that witness had “the right to take' that position,” and the defendant excepted. As the witness was called by the defendant, the exception has no validity. No objection to the testimony was made by the defendant, nor did it move to strike out the entire testimony of the witness; and the exception, under these circumstances, is untenable.

The witness also testified as follows:

“If my memory serves me correctly, in that proof of loss I think I stated that I saw him several times in 1896, for some trifling ailment, the character of which I had then forgotten. I think that is practically what is in the proof of loss. I say so now. My statement there was true. I made no memorandum of the character of his illness. I remember it as a trifling indisposition.”

In the case of Chinnery v. Insurance Co., 15 App. Div. 515, 44 N. Y. Supp. 581, this court held that the statement in the application that the applicant had never been under treatment in any hospital or other institution, though technically untrue, because the applicant had at one time been in a hospital, under treatment for eye trouble, which appeared to be for the removal of some substance that had become lodged in her eye, was not within the meaning of the policy, so as to invalidate it, as it had nothing to do with the general health of the insured, and, if it had been known to the defendant, could not possibly have been considered by it as a reason for refusing a policy of insurance to the applicant. To the intelligence of the ordinary layman, herpes zoster capitas is a disease with a high-sounding name, but there, is no evidence in the record as to what it is; and a reference to the standard dictionaries discloses the fact herpes is a cutaneous affection which appears in several forms, and is known among the uninitiated as “shingles”; that the use of the word “capitas” locates the disease upon the scalp, while the Greek word “zosta,” meaning a belt or girdle, would seem to locate it in the region of the waist. In the evidence the ailment is sometimes called “herpes zoster capitas,”-and sometimes “herpes capitas,” as if there were no distinction. It is therefore difficult to discover from the evidence what was the real ailment. Dr. Forman testified that he prescribed a salve or ointment, that it was for a trifling indisposition, and that Tooker fully recovered from the trouble. When it is considered that the application contained the statement that the application of the insured for policies in the Mutual Life and Equitable Life Insurance Companies had been declined, and that, it does not appear in evidence that there was any conference on the subject with either of said companies, it is not difficult to deduce an inference that, as the defendant issued its policy after such statement, the defendant would not have refused to issue its policy if it had known that the applicant had suffered with the ailment referred to. Nor is this evidence conclusive against the plaintiff. The witness was called by the defendant, and the jury may possibly have disbelieved his evidence altogether, as they were entitled to do. In addition to this, Ran, speaking of the time when the application - for the policy was made, testified as follows:

“Q. Prior to that time, did he state to you anything about the herpes eapitas? -5L He [the insured] spoke to me about some slight scalp ailment, but he did not ase any technical term; and I asked him, in a general way, if it amounted to anything, and he said, ‘No.’ That was all the conversation. It was a little ske© on his head, for which the doctor had given him a salve. It did not amount to anything. It was then entirely cured. Q. Did he ask you if it was necessary to mention that? A. In this way: I said that ‘it is so unimportant, it is needless to mention it.’ Those little things will happen all the time, and we would be busy filling up forms to contain them,—every little cold, and everything sS that sort.”

In this transaction, which preceded the issuing of the policy, Rau was acting on behalf of, and as the agent of, the company. His knowledge of the company, and his failure to write in the application the statement made to him by the insured cannot be held to militate against the latter. All the more, that there is not in the policy a condition which so often appears in the reports of insurance cases,—that the agent taking the application is the agent of the insured, and not the agent of the insurer. O’Farrell v. Insurance Co., 22 App. Div. 495, 48 N. Y. Supp. 199. The case does not involve a breach of warranty in the policy. It is, at most, the omission of a fact, and a fact which Míe trial court, upon the evidence, was justified in finding to be a Mvial fact. A similar question arose in the case of Dilleber v. Insurance Co., 69 N. Y. 256, 263, where the court held.:

“■When the language used in a policy may be understood in more senses than it is to be understood in the sense in which the insurer had reason to suppose it was understood by the assured. Hoffman v. Insurance Co., 32 N. Y. 405. Conditions and provisos must be strictly construed against the insurers, because, tSsy have for their object to limit the scope and defeat the purpose of the principal contract; and as the insurer prepares the contract, and furnishes the Language used, any ambiguity in the contract must be taken most strongly against him. Fowkes v. Association, 3 Best & S. 917. We are therefore of opinion that it was a question of fact, to be submitted to a jury, whether the answer of the assured to the physicians employed or consulted was honestly smS fairly made, or whether a portion of the truth was fraudulently and intent£raally suppressed or withheld.”

In this connection, attention must be given to the form of the application. The clauses must be construed together, and the'intention and agreement of the parties taken from the whole instrument. The applicant said: “There is no suppression of known facts.” “It is hereby rovenanted and agreed that if there has been any suppression or omission of any fact, or if any untrue or fraudulent allegations be contained herein, or in the foregoing answers,” the policy shall be void. Taken together, these clauses clearly relate to some fraudulent or intentional suppression or omission of any known fact. A simple omission resulting from a lapse of memory would not come within the category. There must have been something indicating an intention to deceive the samp any, and to induce it to enter into the contract, in order to void tite policy. Bearing in mind this principle, we find that the original application, of January 7th, stated as follows: “The last physician 1 isnsralted, or who prescribed for me, was Dr. Geo. B. Skiff, of N. Y. City, in the year 1880, for the sickness here stated,—simple diarrhea; three days’ duration.” This was amended on March 3d, before the issuance of the present policy, as follows: “The last physician who prescribed for me was Dr. George B. Skiff.” This takes the place of the corresponding statement in the original application, and must be construed as simply stating that the last physician consulted was Dr. Skiff, without giving any date of the consultation, or its cause or reason, or the sickness for which he was consulted; and, construing this clause strictly against the company, there is no misrepresentation whatever. There is no evidence of the untruthfulness of this statement, as there is no evidence of any subsequent consultation with any other physician previous to the delivery of the policy. The proofs of loss and the evidence show that Dr. Forman attended the deceased in 1893, and in February, 1896; but it does not appear affirmatively that these consultations were subsequent to the unknown and undesignated date of Dr. Skiff’s attendance, referred to in the amendment to the original application for insurance. Non constat but they were prior to the last consultation with Dr. Skiff, the date of which does not appear. It is unnecessary to consider any question arising upon the attendance of Dr. Forman upon July 3d, as this was after the date when, according to our opinion, the policy had its inception. It is not altogether clear what was the real cause of the death of the insured. The proofs of death state the cause of death as heart failure; that the health of the deceased first began to be affected July 3d; that the first symptom was simple colic, and the duration of the last illness was five days. But there was testimony that the insured, after the first attack, had fully recovered, and was attending to his ordinary business ; and the learned court has found, as matter of fact, as follows:

“I further find that said insured was a man of good health and hodily condition, and had not been sick for years, except from ailments of the most trifling nature, until in the afternoon of July 3, 1896, when he was suddenly seized with severe pains, and suffered from an acute attack of colic, from which he recovered; and the following day was July 4th, a holiday, and July 5th was Sunday; and he was at his office all of the following day, July 6, 1896, attending to his business, and apparently in his usual good health; and that on the night of July 6, 1896, he was suddenly taken ill, and continued ill during the night, and died on the 7th day of July, 1896.”

This finding was fully justified by the oral and written evidence.

In addition to these considerations, it will be remembered that there was but one application, upon which both policies were issued. This was dated January 7th. The first policy, numbered 598, was dated January 11th. The amendment of the application was dated March 3d. The present policy was dated May 2d. and delivered July 1st, and this was after the amendment of the original application. Leach, one of the agents of the company, testified that Bau held policy 598 for over six weeks before he delivered it to Tooker, and this brings the delivery to at least March 17th,—a time at least 11 days subsequent to February 6th, the time when, in the attending physician’s certificate, Dr. Forman certified that he attended the insured for herpes; and these facts were known to the company at the time when it paid the amount of the first policy. And, as it paid that policy without objection, it would seem as if it had waived any invalidity or insufficiency of the proofs as to the present policy, since it expressly, and in writing, on December 4th, waived any further proofs of death.

The judgment must be affirmed, with costs. All concur, except BARTLETT, J., who concurs in the result.  