#### FOLEY v. ROYAL ARCANUM.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

1. Life Insurance—Warranties—Statements in Application.

Where an application states that “I do hereby warrant the truthfulness of the statements in this application, and consent and agree that any untrue or fraudulent statement made therein” shall forfeit all rights under it, the statements contained therein are warranties.

*2.*Witness—Privileged Communications—Physicians.

Laws 1891, amending Code Civ. Proe. § 836, so as to provide that privileged communications by a patient to his physician may be waived only on the trial, does not apply to an action on a policy issued before the amendment, and containing an express waiver of the privilege as to communications between the insured and his physician.

*953Appeal from circuit court, Orange county.

Action by Annie Foley against the Eoyal Arcanum on a mutual benefit certificate. The' complaint was dismissed on the merits, and plaintiff appeals. Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

John M. Gardner, for appellant.

S. M. Lindsley, for respondent.

BROWN, P. J.

This action was brought to recover upon a benefit certificate issued by the defendant to Jeremiah B. Foley, and made payable upon his death to the plaintiff, who was his wife. By the terms of the certificate the statements made by Foley in his application for membership in one of the defendant’s councils, and the statements certified by him to the medical examiner, both of which were filed in the supreme secretary’s office, were made a part of the contract. The application contained the following:

*“I*have no injury or disease which will tend to shorten my life. Am now in good health. * * * I do hereby warrant the truthfulness of the statements in this application, and consent and agree that any untrue or fraudulent statement made therein, or to the medical examiner, * * * shall forfeit the rights of myself and my family * * * to all benefits.”

To the medical examiner he stated that he had never had any serious illness or injury, or undergone any surgical operation, and never had been subject to or had difficulty in urinating, excessive or scanty secretion of urine, and never had hemorrhoids, or any disease of the genital or urinary organs; and he warranted the truthfulness.of the statements so made. The defense was that these statements were false; and upon the trial it appeared by the testimony of the physicians who had treated and prescribed for Foley prior to the application for membership in the council of defendant, and by other witnesses who knew him intimately and saw him frequently, and to some of whom he had made statements as to his health, that for some months prior to his application he had hemorrhoids; also, a disease of the urinary organs and difficulty in urinating. That he suffered severely from these diseases was clearly established, if the testimony of the defendant’s witness was to be believed; and the inference was also permitted from the evidence that he had been a patient in Roosevelt Hospital in the month of November, 1889. The application for membership was made in March, 1890. The certificate was issued on the 5th of April following, and in June following he became a patient in the New York Hospital, where a surgical operation was performed upon him, and where, a few weeks later, he died. The learned trial judge held that the falsity of the statements made in the application was established by uncontradicted evidence, and, as a result, the plaintiff could not recover. The appellant asks to reverse the judgment on the following grounds: First, that the statements referred to were not warranties, but representations, and the question of their materiality was thus presented, and should have been determined by the jury; second, that there was a conflict of testimony upon the question of their truth or falsity; *954third, that evidence of physicians who had attended Foley in a professional capacity was admitted, contrary to the provisions of the Code of Civil Procedure.

It is, I think, of no importance to this appeal whether the statements be regarded as representations or warranties. Their materiality to the risk is apparent, and, if untrue, the policy was avoided. But the trial court properly held that the statements were warranties. By the express language of the certificate, the statements made in the application and those certified to the medical examiner were made a part of the contract. Their truthfulness was warranted, and it was agreed that, if they were untrue, the applicant and his family and dependents should forfeit all benefits thereunder. The two papers were, therefore, to be construed as a single instrument, and all the statements contained in the application and the answers made to the medical examiner were thus made warranties, and must be substantially true, or the policy will be avoided. Foot v. Insurance Co., 61 N. Y. 571; Cushman v. Insurance Co., 63 N. Y. 404; Insurance Co. v. Raddin, 120 U. S. 183, 7 Sup. Ct. 500.

There was no substantial contradiction of the testimony introduced by the defendant. The plaintiff’s evidence was drawn chiefly from the friends and associates of Foley, and showed nothing more than that they had not observed, in his daily conduct, indications of the sickness for which physicians had treated him. The certificate of Dr. Taylor, the medical examiner of the defendant, spoke only of his examination at the time of the application, and had no necessary tendency to show a condition of health during the year 1889. All this evidence was negative in its character, and raised no question for the jury to consider.

The testimony of Foley’s attending physicians was properly admitted, under the conditions and stipulations of the contract. In re Coleman, 111 N. Y. 220, 19 N. E. 71; Alberti v. Railroad Co., 118 N. Y. 77, 23 N. E. 35. There was an express waiver by the assured of the provision of the Code, and a consent that any physician oilier-wise disqualified might testify concerning his health and physical condition. The amendment of section 836 of the Code in 1891, providing, in substance, that the provisions of the three prior sections could only be waived on the trial, assuming it has the effect claimed for it by the appellant, has no application to this case. Laws must be construed so as to lie prospective, and not retrospective, in their operation, unless they are specifically made applicable to past transactions (People v. McCall, 94 N. Y. 587); and there is no evidence that this amendment was intended to apply to old cases. Moreover, at the time of its enactment, the rights of all parties were fixed. The contract was made effective by delivery in April, and the insured died in July, 1890. The defendant’s liability must be adjudged upon the agreement as it then stood. It was entirely competent for the parties to stipulate what evidence should be received as to any fact upon which defendant’s liability was made conditional, and the legislature could not change or impair the obligation. To exclude the right to avail itself, upon the trial, of the evidence of the attending physicians, would be to destroy the contract made by the parties. *955and impose an obligation upon the defendant which it had not assumed. The legislature could change the rule of evidence, but it could not make the new rule applicable to a past transaction, if its effect was to impair the obligation of a contract. No other question needs consideration. The judgment must be affirmed, with costs.

DYKMAN, J., concurs.

PRATT, J. (concurring).

The rule is well settled that upon the trial of a case at circuit, if the weight of evidence is so decided in favor of either party that a verdict against such party would be set aside, it is proper for the judge to direct a verdict. In this case the weight of evidence was so decidedly against the plaintiff that a verdict in his favor would have been immediately set aside, and the judge very properly dismissed the complaint upon the merits. The action was upon a mutual or fraternal certificate or policy issued by the defendant to the husband of the plaintiff. Prior to the issuance of the certificate, there was an application and medical examination, which, by the terms of the certificate, was made a part of the contract. Under the questions and answers contained in the examinations, and signed by the deceased beneficiary, was the following clause: *“I*hereby warrant the truthfulness of all the answers given to the above questions.” The court was clearly right in holding that this was a warranty. Ripley v. Insurance Co., 30 N. Y. 157; Clemans v. Supreme Assembly, 131 N. Y. 485, 30 N. E. 496; 1 Bid. Ins. § 543; and other cases too numerous to refer to. It was proved beyond question that these answers, in many particulars, were false and fraudulent. These matters avoided the certificate. It is immaterial whether the answers made by the assured were considered as warranties or representations to obtain the certificate. U false, they equally avoid the contract. Cushman v. Insurance Co., 63 N. Y. 408; Higbie v. Insurance Co., 53 N. Y. 603; 1 Bid. Ins. § 531. The weight of evidence was so clearly in favor of the defendant that no other course was open to the court except to dismiss the complaint. Dwight v. Insurance Co., 103 N. Y. 341, 8 N. E. 654, and cases there cited. What I have now stated is upon the assumption that the court was right in permitting the doctors to testify as to information they acquired while attending the insured in a professional capacity. We think the court, in this respect, committed no error, as the privilege contained in section 834 of the Code of Civil Procedure had been expressly waived by the insured. In the application for insurance, which is made a part of the contract, are the following words:

“And for myself, and for any person accepting or acquiring any interest in any benefit certificate issued on this application, I hereby expressly waive any and all provisions of law now existing, or that may hereafter exist, preventing any physvfihn from disclosing any information acquired in attending me in a professional- capacity or otherwise, or rendering him incompetent as a witness in any way whatever; and I hereby consent and request that any such physician testify concerning my health and physical condition, past, present, or future.” "

*956There can be no doubt that such a waiver was effective,' and had reference to a trial upon the policy after the death of the insured, as there could be no occasion to use it until such time. In re Coleman, 111 N. Y. 220, 228, 19 N. E. 71; Alberti v. Railroad Co., 118 N. Y. 77, 23 N. E. 35; Rosseau v. Bleau, 131 N. Y. 177, 184, 30 N. E. 52; Cahen v. Insurance Co., 41 N. Y. Super. Ct. 296; Railroad Co. v. Martin, 41 Mich. 667, 3 N. W. 173; Adreveno v. Association. 34 Fed. 870. This- agreement to waive the privilege was an essential part of the contract,—as much so as the payment of the premium. The defendant was not prevented from showing what were the real facts, by the production of the medical certificate of their own medical examiner, any more than they would have been from showing that any witness they put upon the stand was mistaken or incorrect upon some point in his testimony, so long as it was not done to impeach him. No point is made by the plaintiff as to change of beneficiary, or that the declarations of the insured were not properly received in evidence. There are no other points raised that require notice. Judgment affirmed, with costs.