I am unable to agree with the conclusion reached in the prevailing opinion.
The policy provides: "Proof of claim. In case of death of the Insured, proofs of claim shall be made on blanks to be provided by the Company and shall contain full answers of the claimant, physicians and other persons to all the questions asked therein and shall conform to all the requirements thereof."
That clause distinguishes this case from all those cited in Judge O'BRIEN's opinion to the effect that a doctor's affidavit served upon an insurance company as a part of the proofs of death constitutes an admission against interest by the beneficiary of the facts stated in such *Page 215 affidavit. In none of the cases cited was the beneficiary bound by the contract of insurance to furnish a physician's affidavit upon a blank to be furnished by the insurance company requiring the physician to make full answers to all the questions asked. It appears from the opinion in Buffalo Loan, Trust S.D. Co. v.Knights Templar, etc. (126 N.Y. 450) that the certificate of insurance required only "proof of death." The furnishing of a doctor's affidavit was a gratuitous act, voluntary and unnecessary. Under those circumstances the plaintiff in that case vouched for the truth of the doctor's affidavit, and it was held to constitute an admission against interest upon his part. The case of Spencer v. Citizens Mut. L. Ins. Assn. (142 N.Y. 505) is of the same nature, and in that case the record discloses that no objection was made at the trial to the receipt in evidence of the doctor's affidavit. To the same effect is the case of Hanna v. Conn. Mut. Life Ins. Co. (150 N.Y. 526). The other cases cited belong in the same class and rely upon the Spencer andHanna cases as authority for the general statement that a physician's affidavit, forming part of the proofs of death, is properly received in evidence as an admission against interest.
In Helwig v. Mutual Life Ins. Co. (58 Hun, 366) it was said: "Ordinarily, it may be said that a party who makes use of an affidavit thereby holds it forth as truthful, but we think the present case is an exception to the general rule, for it was a condition of the policy that the proofs of loss should be accompanied by the statement of the physician who attended the deceased in the last illness. The questions were upon a printed blank furnished by the company. It is not to be supposed that the claimant could control the responses or was in any degree responsible for their correctness. Had the forwarding of the physician's affidavit been a matter of choice with the claimant, it might well be argued that the statement was put forward as truthful and was evidence against the party using it. But as the claimant *Page 216 had no option and was compelled by the contract to forward the statement, it cannot be used as evidence against her." When that case was passed on in this court in 132 New York, 331, this court reversed upon the express ground that the policy did not require the plaintiff to furnish the doctor's affidavit. All that the beneficiary was required to do was to furnish proof of death.
In Redmond v. Industrial Benefit Association (150 N.Y. 167) the true rule was announced, although the statement was not necessary to the decision. Judge BARTLETT wrote, all the members of the court concurring: "It would seem that the attending physician of the insured did not represent the plaintiff, and the furnishing of his sworn statement was in no sense the voluntary act or admission of the plaintiff, but was made a condition precedent to his recovery on the policy by the contract of insurance." In that case the by-laws of the defendant required "that the proofs of death shall contain, among other things, a statement under oath of the attending physician made upon a blank furnished by the company." It will be noted that the requirement is very much like the one contained in the policy in this case.
The question is open in this court, and may be considered upon principle. The proofs of death must be furnished upon blanks provided by the company and must contain full answers by the physician to all the questions asked thereon. The claimant has no option. The physician's affidavit is a statement extracted from the claimant by the terms of the policy. How can it be held that she vouches for the truth of each statement therein? How can it reasonably be said that she adopted the statement of the physician as her own, especially in view of the fact that her own sworn statement, filed as a part of the proof of death, stated the facts, in so far as they are in issue here, directly contrary to the statement contained in the physician's affidavit? *Page 217
The claimant did not agree to adopt the statement of the physician; she did agree to furnish it. It may be of use to the company in determining its attitude in the adjustment of the claim. Ordinarily when a person tenders or serves an affidavit of a third person in support of a claim, he is held to approve the contents of the affidavit of which he thus makes use. There can be no question about the general principle. In the case at bar the policy provides that in consideration of the premium and on satisfactory proof of the death of the insured the company will pay the amount due. That is the primary contract. As a part of the policy it is further provided that the beneficiary shall furnish to the company certain information upon blanks furnished by it, containing questions to be answered by certain persons, among others by the physician. The claimant cannot know how the physician will answer those questions or whether she can agree that the answers are true. Neither can she control the answers to the questions. Still, she is bound by the terms of the policy to furnish a physician's affidavit. Under such circumstances it is a misuse of the word "admission" to say that by filing the affidavit which she was obliged to file she admitted the truth of the statements which it contains.
The judgment should be affirmed, with costs.
CARDOZO, Ch. J., POUND and LEHMAN, JJ., concur with O'BRIEN, J.; HUBBS, J., dissents in opinion, in which CRANE and KELLOGG, JJ., concur.
Judgments reversed, etc. *Page 218