
    Ida K. Helwig, Resp’t, v. The Mutual Life Insurance Company of New York, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    1. Instjbance (life)—Evidence—Statement of attending physician.
    Where a policy of life insurance requires that the proofs of loss he accompanied by the statement of the attending physician, such statement cannot be used as evidence against the claimant under the policy.
    2. Same.
    The application' contained a statement that the last physician who attended the applicant was Dr. L. It appeared that he was attended at a later date by Dr. F. The court refused to direct a verdict for defendant on this ground, but instructed the jury that if such attendance was for a real or supposed disease, the verdict should be for defendant. Held, no error.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion-for a new trial.
    Action upon a policy of life insurance.
    August 17, 1887, the plaintiff’s husband insured his life for the benefit of plaintiff, in the defendant’s company, for the sum of $5,000. December 26, 1887, he died from the effects of poison taken by him while insane, with suicidal intent It was admitted by the defendant that the deceased was insane when the act of suicide was committed. It defends, however, upon the ground that the deceased’s statements in the application for the policy were warranties, and that there was a breach of such warranties.
    The breach relied upon by the defendant relates to. the 30th question in the application for insurance, which reads:
    “ Q. When last attended by a physician, and cause. A. Six years ago; measles.”
    “ Q. Hame and address of the physician. A. Dr. Langman, New York.”
    The only untruthfulness complained of is, that subsequent to his treatment for measles, as above answered, other physicians attended him.
    On this point defendant claims that the certificate of Dr. Fuhs which accompanies the proofs of loss, and which states that he attended Helwig a year and a half prior to his death for gastralgia, concludes the plaintiff.
    
      Robert Sewell, for app’lt; A. Simis, Jr. (Max Brill, of counsel), for resp’t.
   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 its forth as truthful. But we think the present case in 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 of 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 Dr.Langman. Evidence was given to the effect that Dr. 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 physician 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.

Barnard, P. J., and Dykman, J., concur.  