This action was brought to recover the weekly indemnity provided for under an accident insurance policy issued by the defendant to the plaintiff, in consequence of an injury received from a fall by the plaintiff from a veranda, which is alleged to have caused acute appendicitis, necessitating an operation which caused total disability and several weeks loss of time.
Upon the presentation by the plaintiff to the defendant of the proofs of loss the manager of the defendant wrote plaintiff a letter acknowledging its receipt, and then stating, "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 advise us, 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." Upon the receipt of this letter it appears that the plaintiff called upon Dr. McMorrow, who was his family physician, and thereupon the doctor wrote the company the following letter at the request of plaintiff: *Page 89
"SYRACUSE, July 7, 1908. "Mr. B.E. WATSON, "Ætna Life Insurance Co., Syracuse, N.Y.:
"DEAR SIR. — I have before me your letter to A.E. Aldridge, in which you request him to have me send you further statistics in regard to my treatment of Aldridge for appendicitis previous to this accident.
"I first attended Aldridge for appendicular involvement April 10, 11, 12 and 13, 1903. He had at this time localized tenderness over appendix. Tempt. 100 F. and vomiting. I next attended him for a recurrent attack from May 2, 1905, to May 11, 1905; attack was similar to above. The next attack commenced June 1, 1906, and lasted until June 11, 1906. The chief symptoms were pain, localized tenderness, vomiting and constipation, with slight fever. He was next confined to his bed from October, 1906, to November 1, 1907, with about the same symptoms. This last attack following accident all the symptoms were intensified. His temperature reached 104 F., there was severe pain and abdominal tenderness and rigidity, nausea and vomiting and a white blood count of 32000. During the intervals I frequently attended Mr. Aldridge at my office for digestive disturbances and a mild degree of discomfort in the appendicular region. Sometimes he would have a moderate amount of pain and slight fever, but not acute enough to cause him to take to his bed.
"Yours very truly, "F.M. McMORROW, M.D."
The defendant produced this letter upon the trial on the cross-examination of Dr. McMorrow, who identified it. Subsequently it was offered in evidence, but under objection it was excluded and an exception was taken by the defendant, it then appearing that the plaintiff had not seen the letter after it was written. The insurance policy in question was issued in January, 1905. The *Page 90 application of the plaintiff, upon which the policy was issued, contained the statement that he had not received medical attention within the past two years. That was one of the issues that was litigated upon the trial and was the issue upon which the company had asked the plaintiff for a statement of his physician as to the dates upon which he had been treated for appendicitis prior to the accident.
Referring to the statement contained in the letter of the doctor, we find that he stated that he attended the plaintiff for appendicular involvement in April, 1903, which would be within two years of the time that the application was made by the plaintiff for insurance. The question is thus presented as to whether the defendant had the right to rely upon this statement and as to whether it was competent evidence to be considered by the jury upon the trial. The rule, as stated by Greenleaf (Vol. 1, § 182), is as follows: "The admissions of a third person are also receivable in evidence against the party who has expressly referred 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 person referred to, in the same manner and to the same extent as if they were made by himself."
In the case of Rosenbury v. Angell (6 Mich. 508) CHRISTIANCY, J., in delivering the opinion of the court, criticised the rule stated by Greenleaf as being too broad and then, after considering the English cases upon the subject, reached the conclusion that the rule is based upon the principle of agency, in which a party has given another person authority to speak for him. He, consequently, held that, where a party, claiming property alleged to have been transferred to him for the purpose of defrauding creditors, was inquired of by a creditor as to his responsibility and referred the creditor to the business men of the place where he had formerly resided, to ascertain in regard to such responsibility, this reference *Page 91 did not authorize the statements of the business men of such place to be given in evidence in behalf of the officer who subsequently attached the property at the suit of the creditor.
In Lambert v. People (76 N.Y. 220) the defendant was indicted for perjury and a witness for the prosecution testified that, upon applying to the prisoner for information, he was referred to the bookkeeper, who, he said, would furnish "whatever information was contained in the books." The witness was then permitted, under objection and exception, to state that the bookkeeper had stated in the absence of the prisoner that certain entries in the books of the company as to policies issued were false and that the prisoner knew they were false. This was held error, upon the ground that it exceeded the authority given by the prisoner to the bookkeeper. (Allen v. Killinger, 8 Wall. (U.S.) 480; Duval v. Covenhoven, 4 Wend. 561.)
But with these and other similar limitations the rule, as stated by Greenleaf, appears to have been followed in many reported cases. Assuming, therefore, that the rule is based upon the principle of agency, the question arises as to whether the doctor was authorized by the plaintiff to write the letter which he did. As we have seen, the insurance company had called upon the plaintiff to furnish a further statement as to the dates upon which he had been treated for appendicitis by his doctor and that they wished a statement from the doctor over his own signature as to such dates. The plaintiff takes such letter to his doctor and requests the doctor to answer it and the doctor did so answer by the letter which was offered in evidence. It appears to us that this was brought within the rule to which attention has been called, and, consequently, the letter was evidence which the defendant had the right to have presented to the jury.
It is now contended on behalf of the plaintiff that, even if the letter was competent evidence, the substance of its contents has been made to appear in the defendant's *Page 92 cross-examination of Dr. McMorrow given upon the trial. It appears that the plaintiff did not see the letter after it was written and had no knowledge that it contained the statement that he had been treated for appendicitis in 1903. While the letter was competent, it was not conclusive evidence, and the plaintiff had the right to show that the statements therein contained were erroneous, and upon the cross-examination of the doctor by the defendant's counsel, when his attention was called to the contents of the letter, he testified that his statement made with reference to the first treatment of the plaintiff in 1903 was erroneous as to the date; that instead it was 1905. But we are of opinion that this did not cure the error in excluding the letter from evidence, for it involved the credibility of the witness and the defendant had the right to have the letter itself go to the jury in connection with the doctor's subsequent explanation that the date therein stated was erroneously given.
For the error above referred to the judgment should be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., WILLARD BARTLETT and CHASE, JJ., concur with WERNER, J.; GRAY and VANN, JJ., concur with HAIGHT, J.
Judgment reversed, etc.