
    Cecelia W. Valentini, Appellant, v. Metropolitan Life Insurance Company, Respondent.
    
      When a cross-examination of a plaintiff to establish an affirmative defense makes him the defendant’s witness — life insurance — breach of warranty is an affirma- ' tive defense — warranties strictly construed — attendance by a physician within two years — the disorder must have been substantial — consultation with the physician by a third person — the question whether he was “ afflicted at that time and needed medical attention” calls for a conclusion—proof that the assured attended to his business regularly.
    
    Where the plaintiff in an action is sworn as a witness in her own behalf, if the defendant, upon cross-examination, elicits from her matter relating solely to an affirmative defense interposed by the defendant, the plaintiff, in respect to such matter, becomes the defendant’s witness, and the testimony given by her in respect thereto is to be weighed as affirmative evidence introduced by the defendant to establish his defense.
    In an action upon a policy of life insurance, a defense of a breach of warranty by the insured is an affirmative one which the. defendant is bound to establish.
    Warranties in insurance policies are to be strictly construed. They will not be extended to include anything not necessarily implied in their terms, and when the language may be understood in more senses than one, it is to be construed in the sense in which the insurer had reason to suppose it was understood by the assured.
    An application for a policy of life insurance contained the following:
    “4. The following is the name of the physician who last attended me, the date of the attendance, and the name of the complaint for which he attended me. Dr. Goodwin; Rheumatism, 1898.
    “ 5. I have not been under the care of any physician within two years, unless as stated in previous line.”
    
      Held, that, before the court would be justified in holding that the fact that the insured had been attended b\ a physician within two years prior to the making of the application constituted a breach of warranty as matter of law, it must appear-that such attendance had been for some substantial disorder and not for a mere functional and temporary indisposition;
    That a consultation between a physician and the mother of the insured in respect . to the insured’s health with or without the knowledge of the insured, when the latter was not. suffering from any ailment or disease, would not constitute, a breach of warranty;
    That it was improper for the court to allow the defendant to ask a witness', 'by whom it was endeavoring to establish its defense of breach of warranty., whether, at the time the insured was attended by a physician he was “afflicted at that time and needed medical attention,” as the question called for the conclusion of the witness upon a vital point in the case;
    That the court should have permitted the plaintiff to ask a witness whether, at the time in question, the insured attended to his business regularly, as such question bore directly upon the point whether the insured was then, suffering from any disease or was in need of medical attention.
    Ingraham, J., dissented.
    • Appeal by the plaintiff, Cecelia W. Yalentini, from, a judgment of the Supreme Court 'in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of November, 1904, upon the dismissal of the complaint by direction ■of the court after.a trial at the New York Trial Term, and also from ah order entered in said clerk’s office on the 15th day of November, 1904, directing the dismissal of the complaint upon the merits.
    
      Lewis H. Freedman, for the appellant.
    
      C. N. Bovee, for the respondent.
   Hatch, J.:

The action was brought to recover the'sum of $1,000 upon a> policy of life insurance issued by the defendant on the life of Harry Joseph Valentini in .which 'the plaintiff, his mother, was named as' beneficiary. The complaint averred the-making of the policy, a copy-of which was attached to and made a part of the complaint, alleged compliance with its terms and conditions, the death of the insured, demand of payment, and refusal on the part of the defendant to pay. The defendant alleged, inter alia, a breach of warranty in answers given to questions propounded to the. insured at the time, of making application for the policy of insurance. The answers iu the application which it is claimed constituted a breach of the warranty are as follows:

“ 4. The following is the name of the physician who last attended me, the date of the attendance, and the name of the complaint for which he attended me. Dr. Goodwin; Rheumatism, 1898.
“ 5. I have not been under the care of any physician within two years, unless as stated in previous line.”

Whether there was a breach of warranty on the part of the insured in giving these answers presents the only question involved upon this appeal. Upon the trial the plaintiff introduced the policy of insurance, and proved the filing of the proofs of death and the non-payment of the policy. This proof was given by the plaintiff, who was the only witness called upon the trial. The defendant did not contest any of the matters to which the plaintiff testified and which established, prima facie, her right to recover. The defendant upon cross-examination attempted to establish by the witness that there had been a breach of warranty in the answers as above quoted. In other words, instead of cross-examining the witness, it entered upon proof of its affirmative defense to the enforcement of the policy. In this respect, over the objection and exception of the plaintiff, the defendant was permitted to ask leading questions and draw from the witness several conclusions upon material matters. Very little, if any, of such examination was proper as cross-examination of anything to which the witness had testified. As the matter related solely to the defendant’s affirmative defense, the witness in this respect became the witness of the defendant, and the testimony which she gave is to-be weighed in the determination of this appeal as affirmative evidence introduced by the defendant to establish its defense.

The policy bore date June 19, 1901. The examination of the witness by the defendant tended to disclose that some time in 1898 or 1899, the date of which is nqt given, the witness consulted Dr. Bishop about getting some medicine' for her son (the insured); that she went to Dr. Bishop’s office a number of times for that purpose and, after seeing him, she took her son, the date of which does not appear ; and that some time in 1899, but on what particular date is not made to appear, the insured, her son, went alone to see Dr, Bishop, and thereafter sometimes the mother went to" the'doctor-and sometimes the son, and the doctor continued his treatment until the death oí the insured. How often visits were made or what, the treatment was does not appear. The witness also testified “ My son would take a nervous twitching just as he was dropping off to sleep, and that was what the whole trouble was and what we consulted Dr. Bishop about, a sort of nervous twitch as he would fall asleep, that is all it was.” And being asked if the necessity for ■medical attention continued during the period of time the insured was attending Upon Dr. Bishop, the witness answered: “ It was not necessary, blit just for safety’s sake; he was well and strong; he was running around; he was working from morning to night.” This is the substantial testimony upon which the court felt constrained to direct-a judgment dismissing the complaint upon the merits.. So far as appears, the mother first called upon Dr. Bishop without the knowledge of the insured, and her consultation with the doctor could not create a breach of the warranty if the son knew nothing of it. The consultation by the mother, without the knowledge of the son, or a consultation with his knowledge, when he was "nut suffering from any ailment or disease, would not constitute either of his answers a breach of warranty. (Crosby v. Security Mut. Life Ins. Co., 86 App. Div. 89.) It is Well settled that a breach of warranty is an affirmative defense which the defendant is bound to establish. (Dougherty v. Met. Life Ins. Co., 3 App. Div. 313; Trudden v. Met. Life Ins. Co., 50 id. 473.) Warranties in policies of insurance are to be strictly construed. “ They will not be extended to include anything not necessarily implied in their terms. * * * When the language used in a policy may be understood in more senses than one, it is to be understood in the sense in which the insurer had reason to suppose it was understood by the assured.” (Dilleber v. Home Life Ins. Co., 69 N. Y. 256.)

It has been held that answers to similar questions will not be construed as a breach of warranty as matter of law, unless it appears as matter of fact that the answer was false and related to a material question. Thus in Edington v. Mut. Life Ins. Co. (67 N. Y. 185) certain questions in the application for insurance were as follows: How long since you were attended by any physician ? For what diseases? Give name and residence of your usual medical attendant ? ” To these questions the insured.answered: “ Dr. Carpenter has known me two years. * * * Have none; only consulted Dr. C. H. Carpenter now ands then for slight ailments and taken his prescriptions; C. H. Carpenter, Geneva, has known me three years.” It was proven that prior to making these answers the insured had consulted Dr. Eastman in 1863, who made prescriptions for him ; Dr. Avery also prepared medicines for him for a week or ten days after treatment by. Dr. Eastman; and he also treated him in 1868; and Dr. Picot also prescribed for him in that year. Upon this proof the court said: “ It is apparent that the testimony is ,not very explicit as to the correctness of the answer, but as the evidence stood, it was a fair question for the jury to determine, whether the assured could be charged with an omission to give such information as the interrogatories were intended to elicit ,as constituted a fraudulent suppression of the truth and vitiated the policy.” The court held that such question was for the jury.

In Genung v. Met. Life Ins. Co. (60 App. Div. 424) the answer to the 4th question involved in this appeal, which is the first above quoted, was the subject of examination, the witness having answered that he was last under the doctor’s care for la grippe in 1895,; and it appeared that within two. years he had been treated by another physician. The court said : “ Dr. Conklin testified that he had treated the insured in 1896, and again in January, 1899, but he was not very certain about the matter, and it was in evidence that the treatment was merely for a slight indisposition, a cold, which did not take the insured from his business. He had come into the house from his stores, according to the plaintiff's version of the matter, where the doctor was attending the family for la grippe and had been given some medicine for a cold. Under the authorities this does not constitute a breach of the warranty.”

In Cushman v. U. S. Life Ins. Co. (70 N. Y. 72) the claimed breach was an answer in the negative to a question, had the insured ever had disease of the liver ? ” It was testified to by a physician that before the making of this answer he had attended the insured in 1870, in 1871, before the policy, and in 1872, after the policy was issued, and again in 1873, in his last illness; that he then had congestion of the liver and died of acute congestion of that organ. The court held that the testimony failed to establish that he had a disease of the liver at the time as matter of law; that the question contemplated whether there was disease of that organ, and mere slight and temporary attacks of congestion of the liver did not establish a breach of warranty as matter of law. A similar rule is announced in Schmitt v. Michigan Mut. Life Ins. Co. (101 App. Div. 12); Billings v. Met. Ins. Co. (70 Vt. 477).

Applying these rules of law to the facts of this case it is manifest that a breach of warranty was not established as matter- of law. Assuming that the attendance by Dr. Bishop was within two years of the time when the answers were given, yet it was not made to appear that the assured was afflicted with any disease which called for medical attendance, or that it was other or different than a mere fear engendered in the 'mind of the mother that the son was in need of some medical attendance. It is made - affirmatively to appear that the trouble at the most was a slight nervous twitching which did not interfere with the physical vigor of the insured or with his ability to attend to his business. The purpose of the question and answer was to inform the defendant as to the physical condition of. the applicant arid his probable duration of life, and before the court is justified in holding that there is a breach of warranty, it must appear that attendance by a physician had been for some substantial disorder and not for a mere functional and temporary indisposition. This the evidence failed to establish, and the court was not, therefore, justified in determining the question as matter of law.

The court also committed error in permitting, over the objection and exception of the plaintiff, an answer to the following question : “ Of course your Son was afflicted at that time and needed medical attention \ ” To which the witness answered “Yes.” This was clearly , error. It called -for the conclusion of the witness upon a vital point in the case. The objection raised the precise. question. As we have seen, upon this subject the witness was the defendant’s; it was engaged in establishing its defense, -and the conclusion given by the witness tendfed directly to settle the issues in favor of the defendant, and-that without the intervention of either the court or jury. The witness was not qualified to speak as to the need of the insured of medical attendance; and, so far as she testified to facts, there is nothing to show that he was in need of such attendance at the time when she first called upon Dr. Bishop or at any other period prior to the application. The examination contains several such errors.

Upon redirect examination the witness testified that her son was in business up to the time lie died. The plaintiff was asked: “ Did he attend his business regularly ? ” Objection was interposed as irrelevant and immaterial. The objection was sustained, and plaintiff excepted. The question was proper and the answer should have been permitted. It bore directly upon the question as to whether the insured was suffering from any disease or in need of medical attendance at the time when it is claimed Dr. Bishop attended him. It tended directly to rebut the evidence which the defendant deemed essential, that medical attendance upon the insured was necessary.

. It follows from these views that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event. The appeal from the order is dismissed, without costs, as the appeal from the judgment is all that was necessary to present the question.

O’Brien, P. J., Patterson and McLaughlin, . JJ., concurred; Ingraham, J., dissented.

Appeal from order dismissed, without costs, judgment reversed, new trial ordered, costs to appellant to abide event.  