The medical examiner was selected and paid by the defendant. He was, in fact, its representative. The acts he did were for the *478defendant, and they stamp his relation to it regardless of what the policy and its precedent application may state. The attempt to evade responsibility for his acts on the assumption he was the' agent of the insured finds no warrant in what he did or the position he occupied. It is against public policy to hold that.a physician who is the salaried appointee of an insurance company is not its agent, but is acting for every applicant for insurance in such company. He occupies his position by its grace. It created him as examiner, and directs the seeker for insurance to appear before him. The candidate cannot choose his own jihysician. The rule is invariable that the examiner named and paid for by the company must first pass upon the fitness of the applicant to be received by the company, and it is a matter of common knowledge that the decision of this official is potential "with his principal.
The applicant for insurance, whether illiterate or educated, is prone to rely upon the advice of the medical examiner. What are trivial or serious ailments, and the importance of any consultation with a _ physician, are determined by this official. lie possesses superior knowledge, and can better appreciate what is required than the layman submitting to the examination. If the examiner says that a scratch on the hand is not a personal injury within the meaning of the question on that subject, or that a slight cold, which has been visited upon every one in this climate, is not the cold contemplated by the inquiry, the suitor for insurance will yield to the suggestion of the experienced physician without question.
It is known in the locality where the physician resides that he acts for the company on every application. The position is one of trust. He has been chosen for his medical skill, for his standing in the community, to represent not each man who appears for examination, but for his employer. He cannot be the agent of both parties to the contract of insurance. Their interests may clash. If he represents the candidate his duty is inconsistent with his relation to the company to whom he looks for his compensation.
Appointed and paid by the company, and every act as its representative, it is a cheat to strip him of authority when the day of payment arrives and endow him with a relation to the insured in the teeth of his open agency for his paymaster.
The defendant hopes to escape liability because it is contended *479that a fair construction of the contract makes the examiner the agent of the insured. It does not by specific declaration, and in that respect it may be distinguished from Bernard v. United Life Ins. Assn. (14 App. Div. 142). Beyond that, the position of the examiner is different from that of the ordinary soliciting agent. The professional skill of the physician carried with it a -weight of authority peculiar to itself.
I am averse to maintaining the doctrine that when the company has carefully.chosen its medical examiner it can refuse to pay to the widow or children of the insured the money he believed he had provided for them when the bread winner was gone, on the pretext that the physician hired was in the employ of the one insured instead of the company for which he acted. The trend of authority, as I understand it, is not in harmony with the prevailing opinion in this ease. (See O'Farrell v. Metropolitan Life Ins. Co., 22 App. Div. 495; Pudritzky v. Knights of Honor, 76 Mich. 428; Flynn v. Eq. Life Ins. Co., 78 N. Y. 568; Grattan v. Metropolitan Life Ins. Co., 80 id. 281; Royal Neighbors of America v. Boman, 177 Ill. 27; Beach Ins. § 415.)
The O'Farrell case construes a contract closely akin to the present one, and the reasoning of the court is decisively against holding that the medical examiner is the agent of the insured.
The plaintiff offered to show that the ailments omitted were slight and were so regarded by the medical examiner. If they were such in fact they were not within the intended scope of the questions. (Breese v. Metropolitan Life Ins. Co., 37 App. Div. 152, 159; Tooker v. Security Trust Co., 26 id. 372.)
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Judgment affirmed, with costs.