#### McCORMICK v. UNITED LIFE & ACCIDENT INS. ASSOCIATION.

(Supreme Court, General Term, First Department.

June 15, 1894.)

1. Witness—Privileged Communications—Physicians.

Under Code Civ. Proc. § 834, forbidding physicians to testify as to any' information acquired while acting professionally, where the defense is set. up, in an action on a life insurance policy, that the insured falsely represented that he was in gooel health, when in fact he was suffering from* the disease of which he died, it is error to permit physicians to testify that the insured called on them for professional advice, and that they were specialists in the disease of which he died.

3. Appeal—Harmless Error—Admitting Incompetent Evidence.

Error in admitting incompetent evidence is harmless where competent-evidence of the same fact has been introduced.

Appeal from circuit court, Hew York county.

* Action by William McCormick against the United Life & Accident. Insurance Association. From an interlocutory judgment, and from a final judgment dismissing the complaint, entered on a verdict directed by the court in favor of defendant, and from an order denying a motion for a new trial made on the minutes, plaintiff appeals.

Affirmed.

The defendant is a corporation incorporated prior to February 8,1886, undeichapter 175 ot the Laws of 1883, entitled “An act to provide for the incorporation and regulation of co-operative or assessment life and casualty insurance associations and societies.” On the 8th day of February, 1886, William H. Story applied to the defendant, in writing, for insurance to the amount of" 810,000,—85,000 under a policy known as “Club Insurance,” and 85,000 under a policy known as the “Regular Life Policy.” The application contained,, among others, the following inquiries to, and answers given by, the applicantr “(8) Are you now in good health, and is your health usually good? Ans. Yes. (9) Have you ever had any serious illness, local disease, or personal injury?' If yes, state nature, date, duration, and severity of attack? No. (12) Have-any material facts regarding your past health or present condition been omitted? State facts fully. No. (13) Name and residence of your medical attendant? Dr. Ruppaner, Hoffman House.” On the 9th of February, 1886, the defendant issued a club policy on said application to William H. Story,, which contains the following provision: “By this policy of insurance, [defendant] agrees to pay to William H. Story and members of club No. 7, in equal proportion to those who have kept their certificates in force, if living, if not, then to the heirs at law of said member, within ninety days after due proof" of the death of said member, a sum equal to the amount received from a death assessment, but not to exceed the sum of 85,000.” Among other conditions contained in the policy is the following: “First. That the statements and declarations made by and on behalf of said member, in his application to become a member of said association, which are hereby referred to as the basis-of this contract, and are a part thereof, and on the face of which this certificate is issued," are in all respects true, and that no fact has been suppressed, relating to his health, or circumstances affecting the interests of said association, or their inducement to accept the risk.” The application was received, accepted, and the policy issued on the 9th of February, 1886; but the insured did not pay the premium until May 16, 1886, when the policy was delivered to him. Prior to February 27,. 1886, the defendant issued nine other such policies to persons who were associated as members of *365club No. 7, one of which was issued February 9, 1886, to the plaintiff, for $5,000. The policies issued to the ten persons constituting club No. '7 were in all respects alike. It is admitted that William H. Story d ed November 1,1886, due proof of which was filed with defendant March 1, 1887, .and that the death assessment made on account of the policy and said death ■exceeded the sum of $5,000. It is alleged in the complaint that only six members of said club, who had kept their policies in force,—one of whom was the plaintiff,—survived William H. Story, and that plaintiff was entitled to recover ,one-seventh of $5,000, $714.28, with interest from March 1, 1887. This action was begun August 25, 1887, to recover a judgment (1) that the policy be reformed so as to provide, in accordance with the alleged agreement between the parties, omitted from the policy by mutual mistake, as follows: “By this policy of insurance, [defendant] agrees, upon the death of any member of ■club No. 7, to pay, in equal proportions, to the wife or heirs of the deceased member, and to the surviving members of said club who have kept their policies in force, a sum equal to the amount received from a death assessment, not to exceed the sum of $5,000;” and (2) for $714.28, with interest from March 1, 1887. The issue, whether the policy should be reformed, was tried before the court without a jury, and the relief sought denied on the ground that the policy, if reformed in accordance with the prayer of the plaintiff, would be prohibited by law, and void; and an interlocutory judgment was •entered in accordance with the decision. At the same circuit, the issue whether the plaintiff was entitled to recover any sum was tried before a jury. At the close of the eidence a verdict was directed for the defendant, and a motion for a new trial, made on the minutes, was denied; and from this or■der, and the judgment entered on the verdict, and also from the interlocutory judgment, the plaintiff appeals.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

J. Aspinwall Hodge, Jr., for appellant.

E. T. Oldham, for respondent.

FOLLETT, J.

Construing the 10 policies issued to the 10 persons forming club No. 7, and the club circular (Exhibit A) explanatory of the defendant’s plan of club insurance, together, the legal ■effect of the contract of insurance is as alleged in the complaint, and the reformation of the policy in accordance with the prayer of the plaintiff would not affect the rights of the litigants. It is not .alleged in the answer that the contract set out in the complaint is a wager policy, or that it is, for any cause, Aroid, under the laws of the state, and on the trial the defendant expressly waived this -defense. As a defense, it is alleged in the answer that the answers given to questions 8, 9, and 12 were untrue, and that William H. Story was not, at the time the insurance was effected, in good health, but was suffering from a disease of the throat and tongue, from whim he died, which disease he concealed from the defendant. A breach ■of warranty or false representations on the part of the insured are a defense to an action brought by any of the members of the club to enforce his rights under the 10 policies, as a member of the club stands in the same position as the representatives of a deceased member; and an action in his behalf is subject to the same defenses that an action would be, brought by the wife or heirs of the decedent. On the trial of this action the defendant sought to show that William H. Story died of cancer of the tongue, and that he shad this disease at the date of his application for the policy. One *366of his partners (Mr. Hancock) testified that Story sailed for Europe May 18, 1886, and returned to New York about the middle of August of the same year, and, while absent, his tongue had been removed. This witness testified:

> “Before he went to Europe, I looked at his tongue. I presume I saw it half a dozen times. I knew for two or three years, not that he had any disease of the tongue, but that he had a peculiar-looking tongue. His tongue had a pimpular appearance. I know that it had this peculiar appearance during the period I have stated. I saw it. He showed it to me for the purpose of having me see it. His tongue had at times an appearance of having a heavy coating, and at times it would be red. No soreness, apparently, about it. Mr. Sto y said he thought the appearance of his tongue was occasioned by disordered digestion,—a disordered state of the stomach. That is dll the reason he ever gave for it. In regard to his smoking habits, I think he thought that aggravated the condition of his tongue. At one time he stopped smoking, and I think that was the reason of it. Q. When you discovered this redness of the tongue, on the occasion that he showed it to you, was the entire tongue-involved, or was it confined to any particular part of it? I don’t know that there was any difference in any particular part of the tongue, in this appearance. Q. Did you at any time, before he went to Europe, see his tongue, when you-discovered that there was a sore upon it? A. Yes, I did. Q. On how many different occasions? A. Not more than twice. I don’t know as more than once. Once or twice. Q. How long was that before his departure? A. I should think, a few days. I could not swear positively about it. Q. No portion of his tongue had been eaten away by that sore before his departure 10;-Europe?”

Upon the cross-examination the witness testified that the sore which he saw on Story’s tongue before he left was of the size of an ordinary field pea,—was on the right side of, and about one-half inch back of, the point of the tongue,—but that it had not festered. He also testified that, up to the day he sailed for Europe, he was a strong, powerful, robust man, in excellent health, and had been peculiarly free from sickness.

Another partner of Mr. Story (Mr. Mascord) testified that the insured, prior to his sailing for Europe, appeared to be a man in' vigorous health, but that just before he sailed he saw his tongue, and it seemed to be inflamed, but there was no festering,—no part of it-gone,—but it was red. A third partner of Mr. Story (Mr. Halstead) testified that he knew Story had some trouble with his tongue prior to his sailing for Europe, and that he stated that he was going abroad in the hope of being benefited by the water of some German spring which had been recommended by Dr. Euppaner. This witness testified that he knew as early as January, 1886, that Story had trouble with his tongue.

That the insured died of some disease of the tongue and throat was not denied, nor was any evidence given tending to contradict that given by his partners. The defendant’s surgeon, who examined Story when he applied for insurance, testified that he appeared to be a perfectly healthy man, and free from disease, though he told him he had- a pimple on his tongue, which Dr. Euppaner said was not serious. He testified that he examined the tip of Story’s tongue, and noticed a pimple like those that people have when it is said they have told a lie. Under this state of the evidence, we think there was no question of fact for the jury as to whether the insured had the disease at the date of the policy.

*367It is urged that the court erred in permitting three physicians— Drs. Buppaner, Keys, and Dennis, who had treated Story—to testify to certain facts. Their evidence was objected to on the ground that it was inadmissible under section 834 of the Code of Civil Procedure, which provides:

> “A person duly authorized to practice physic and surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity which was necessary to enable him to act in that capacity.”

The objection was overruled, and an exception was taken. Dr. Buppaner testified that between May 28, 1885, and May 17, 1886, Story called on him for professional advice on 24 different occasions. The witness did not state what information he received from Story, or what advice he gave him; but he did testify that all of the visits were professional, and that for 26 years he had made a specialty of treating diseases of the throat, chest, and heart, and that he had no relations with Story, except professional ones.

Dr. Edward L. Keys was permitted to testify:

> “I have had experience in treating cancers. Been general surgeon in the hospital for fifteen years. I have treated cancer of the tongue. I have not had very much experience in treating those. I have had, during my practice, not more than half a dozen, at the outside. Not many. I knew William H. Story in his lifetime. I first made his acquaintance in my office. I suppose he called on me because I was a physician. He called to consult as such. He made his first call in January, 1885. January 6th, I think it was. He made six calls in my office, in all. The last call was made in March, 1885. None of those calls were of a social nature. They were all made upon me as a physician. I prescribed for him on all occasions, I believe, when he called at my office. I remember his disease particularly, because it interested me.”

Dr. Frederick S. Dennis was called, and testified that he was a physician, and that he saw Story professionally twice in April, 1886, and also after he returned from Europe. This witness was allowed to testify that, on the occasion of his first interview with Story, he examined his tongue and throat, and that for 15 years the witness had been engaged in treating diseases of the tongue and throat.

It is urged that these physicians disclosed no information derived from Story while they were treating him in a professional capacity. While this may be technically true, we think that by permitting the defendant to show by these witnesses that they had treated him for some disease for a long time anterior to the date of the policy, and that they were specialists, and accustomed to treat cancers, and diseases of the tongue and throat, the spirit of the section was violated, and an error was committed in admitting this evidence over the objection of the plaintiff. But, under the state of the record, we do not think this error calls-for a reversal of the judgment; for, if all of the testimony given by the physicians be stricken from the record, there remains the uncontradicted evidence of the.three partners of Story that for some months before he sailed for Europe he had been suffering from some disease of the tongue, and that after his return from Europe they saw that his tongue had been removed, and that November 1st he died from the effects of the disease. The evidence not presenting a question of fact for the jury, and no ques*368tian of fact arising over the issue to which the incompetent evidence was relevant, we are not called on to reverse the judgment, which ¡should be affirmed, with costs. All concur.