In this case we are all agreed that the judgment must be reversed, but we differ as to the reasons for that result. The action is upon an accident policy, under which the plaintiff claims to be entitled to a specified weekly indemnity for injuries which caused appendicitis. The question is whether a certain letter, written to the defendant by the plaintiff's attending physician, is binding upon the plaintiff as though it had been written by himself. We think the proper determination of that question obviously depends upon the law of agency, for we can think of no principle upon which the plaintiff can be charged with responsibility for the representations concerning his physical condition and treatment made by his attending physician, unless it be that he constituted the physician his agent by authorizing him to make the representations. The theory upon which the opinion of our brother HAIGHT seems to be based is that the plaintiff is bound by the admissions of his physician simply because the latter wrote a letter at the request of the former, and that is precisely the point upon which we differ. There can be no doubt that "if one party refers another, on a disputed fact, to a third person as authorized to answer for him, he is bound by what his referee answers upon the occasion, as much as if the answer had been given by himself." Our position is that this rule is not applicable to the case at bar, first, because the particular *Page 85 statements in the letter over which this controversy has arisen were not written at the request of the plaintiff, but rather upon the demand of the defendant; and, second, for the reason that the plaintiff did not see the letter or know its contents until it was produced in court.
After the plaintiff had presented to the defendant the usual proofs of loss, the defendant's manager wrote to the plaintiff, stating that "under the circumstances surrounding the case it will be necessary for us to have further statistics or a statement from the attending physician. We wish him to adviseus, over his own signature, on what dates he treated you for Appendicitis previous to this accident which is claimed to have been sustained on May 16th, 1908." This written request made by the defendant's manager was taken by the plaintiff to Dr. McMorrow, his attending physician, whom he asked to write to the defendant in reply to the letter received from its manager. That is all the plaintiff ever had to do with the letter written by the doctor. The plaintiff did not see it or know its contents. It was not a letter dictated by the plaintiff, but one which he asked his physician to write in compliance with the demand made by the defendant. This request by the defendant was not for a more comprehensive or specific statement of fact from the plaintiff, but "for further statistics" from the attending physician "over his own signature." The request was for information peculiarly within the knowledge of the attending physician, and for which he alone was to be held responsible. In these circumstances we think the doctor cannot be regarded as the agent of the plaintiff, and that he is rather an independent outsider for whose mistakes or misstatements the plaintiff cannot be held responsible.
Under the head of "admissions" Mr. Greenleaf states the rule, which we are discussing, to be that "admissions of a third person are * * * receivable in evidence, against the party who hasexpressly referred *Page 86 another to him for information, in regard to an uncertain or disputed matter. In such cases, the party is bound by the declarations of the persons referred to, in the same manner, and to the same extent, as if they were made by himself." (Greenl. on Ev. [14th ed.] § 182.) In the case of Rosenbury v. Angell (6 Mich. 508) this statement of the rule is criticised as being inadvertently too broad because it ignores the fundamental idea of agency, which is the only logical basis for the rule. That case was identical in principle with the case at bar. There the plaintiff had referred some of his creditors to certain business men for information concerning the plaintiff's pecuniary responsibility. A witness for one of these creditors was asked whether he had made such inquiries, and if so what he had learned. Counsel for the plaintiff objected to this testimony, but the court admitted it. Upon review in the Supreme Court it was held that this was error. With characteristic perspicacity Judge CHRISTIANCY, who wrote in that case, laid bare the danger of so general a statement of the rule. He said: "Here the whole element of agency — the only element which can sustain that rule — seems to be inadvertently overlooked; and a rule is laid down which will in all cases bind parties by the declarations of any third person to whom any man may refer another for mere inquiry, though the party referring had no idea or intention of giving to such third person any authority to speak for him, or of being bound by his declarations; and the person referred to had no reason to suppose any such intention. Such a rule would operate as a trap upon parties, and render it wholly unsafe for a man ignorant of the nature of any facts or transaction in which he might be interested and honestly desiring to put his neighbor in the way of ascertaining them, to advise him to inquire of any third person who he might suppose could explain it. It would put an end to all honest mutual inquiries of this kind." Further on in the opinion the learned judge refers to the true rule which *Page 87 we have already quoted, to the effect that "if one party refers another, on a disputed fact, to a third person, as authorized to answer for him, he is bound by what his referee answers upon the occasion, as much as if the answer had been given by himself." (1 Phillips on Evidence [4th Am. ed.], p. 517.) This is the rule with a clear statement of the reason upon which it rests. It is only when the third person "is authorized to answer for" the person who has referred to him, that the latter is bound by what the former may say.
A similar disposition of the same question was made inProstor v. Old Colony R.R. Co. (154 Mass. 251) where the plaintiff sued for damages for the unlawful setting back of water which overflowed his land. The plaintiff offered to prove that he went to the president of the defendant about the matter and was referred by him to the attorney for the railroad, with the statement that "they wanted to leave it to our attorney Judge Harriman." That thereupon the plaintiff submitted the matter to Judge Harriman, who made an examination of the premises and stated that a certain amount of money was due the plaintiff. This offer was excluded. Upon appeal the ruling was sustained, the Supreme Judicial Court saying: "It would not follow from the plaintiff's offer of proof that Judge Harriman was referred to in such a way as to constitute him an agent for the defendant, with authority to make admissions of promises to the plaintiff." It seems to us that the case at bar affords a much stronger illustration of the principle for which we contend than either of the cases we have cited. Here the insurance company requested the plaintiff to get a further statement from the doctor over his own signature. In this letter there was nothing to indicate that anything which the doctor might say would be regarded as binding upon the plaintiff. The latter in asking the doctor to write to the defendant merely followed instructions; he himself gave none. The defendant did not ask *Page 88 for any further statement from the plaintiff, but for an independent statement of the physician. In these circumstances we can find nothing which authorized the physician to bind the plaintiff by his statements.
Although the letter of Dr. McMorrow, which was excluded, was not admissible upon the theory that it was binding upon the plaintiff, it was competent for the purpose of impeaching the testimony of the doctor himself. The very fact that the doctor undertook, upon his oral cross-examination, to explain certain matters referred to in the letter, was of itself sufficient reason why it should have been received in evidence. If it contained anything in the nature of an admission, it was competent against him even though it was not binding on the plaintiff. Its exclusion was clearly error, and for that reason we concur in the result reached by our brother HAIGHT.