delivered the opinion of the Court:
There being conflicting evidence as to the condition of the insured when she signed the paper purporting to release the company from liability under the policy, and as to her capacity to understand what she was doing, the court properly submitted the question to the jury. It is not controverted that the release was obtained within a few days of her death. Two witnesses testified, in effect, that she was very weak and incapable of understanding the nature of her act when she signed the *190paper. Clearly it was for the jury to say whether, in the circumstances, the paper she signed constituted a release. Rockwell v. Capital Traction Co. 25 App. D. C. 98.
The second assignment of error relates to the refusal of the court to instruct the jury, as matter of law, that the statements and representations contained in the application were warranties; and that, if any of said statements and representations were untrue, their verdict should be for the defendant. We think this case ruled by Moulor v. American L. Ins. Co. 111 U. S. 335, 28 L. ed. 441, 4 Sup. Ct. Rep. 466. In that case the application contained a paragraph in which the applicant stated: “It is hereby declared and warranted that the above are fair and true answers to the foregoing questions; * * * and that, if there be, in any of the answers herein made, any untrue or evasive statements, or any misrepresentations or concealment of facts, then any policy granted upon this application shall be null and void, and all payments made thereon shall be forfeited to the company.” The insured, at the date of his application, was afflicted with one of the diseases which, in his answers, he had stated he did not have. The court ruled, after a careful consideration of the application, upon the faith of which the policy was issued, that, notwithstanding the clause above quoted,, the company “did not require the insured to do more, when applying for insurance, than observe the utmost good faith, and deal fairly and honestly with it, in respect of all material facts about which inquiry is made.” The court reached this conclusion because, taken together, the policy and application might be so construed. In the present case it will be observed the application does not declare the contract null and void if the answers of the insured to the questions propounded to her are in any respect untrue; neither is there anything in the policy to-that effect. The policy, however, does contain paragraphs in-' consistent with the interpretation insisted upon by appellant.. However untrue the representations of the insured, it is expressly provided “that the policy shall be incontestable one year after its date if all due premiums shall have been paid.” This provision lends itself to the interpretation that the com*191pany intended to fix a time limit of one year within which, it might ascertain whether an application had been made fraudulently to obtain a policy, and that if, at the expiration of one year, no evidence to that effect had been obtained, the company waived any further right to interpose such a defense. It would be a harsh interpretation of the policy to hold recovery barred because the insured, within one year from death, innocently made statements in reference to her health which were not true, and permit recovery in a case where a year and a day had elapsed since the making of an application containing statements known to be false when made.
The provision that, if the insured makes a misstatement as to age, the policy shall be adjusted in accordance with the correct age, adds cogency to the argument that the utmost good faith is all the company intended to require. It is, of course,, impossible for a person to state accurately his age except from hearsay. Notwithstanding that he has already “declared and warranted” his age, the policy, recognizing that he must rely upon others in making his answer, provides that, if his age is incorrectly stated, the policy shall be adjusted in accordance with his correct age. The absence of any provisión voiding the policy in the event of untrue answers to questions propounded the insured, the fact that the policy would be incontestable, even for fraud, after one year, and the provision with respect to a misstatement of age, lead us to the conclusion that the company did not require more than the utmost good faith on the part of the insured when she made her application.
In the next assignment of error it is contended that the court should have instructed the jury “that the statements made to the-medical examiner form a part of the res gestee, and could betaken into consideration by them in determining whether they were made for the purpose of deceiving appellant company.” These statements were admitted without objection, and were before the jury. The court, upon the request of appellant, gave-the following special instructions: “If the jury believe from the evidence that the insured was in bad health at the time of' making application for the policy of insurance sued on, and. *192had been in bad health for some time prior thereto, and concealed such condition of health from the insurance company for the purpose of obtaining the policy sued on, then your verdict should be for the defendant.”
It was the duty of appellant’s counsel, in argument, to direct the jury’s attention specifically to this evidence, if they so desired, and not the duty of the court. The court’s charge as given was sufficient.
It is next urged that the court erred in refusing to allow insured’s physician to answer the questions propounded to him by appellant in regard to the nature of the disease he found to exist in October, 1905, the duration of said disease, and the cause of death. Sec. 1073 of the Code ([31 Stat. at L. 1358, chap. 854]) provides that “in the courts of the District of Columbia no physician or surgeon shall be permitted, without the consent of the person afflicted, or of his legal representatives, to disclose any information, confidential in its nature, which he shall have acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity,” with certain stated exceptions. We think no error was committed in excluding these questions, since the information which it was sought to have disclosed was “confidential in its nature” and obtained in a professional capacity. Manifestly the statute was designed to prevent a disclosure by a physician of just such information as was attempted to be elicited by these questions. The witness had already, without objection, testified generally as to the health of the insured during the period he had been her physician. To state the nature of the disease with which she suffered he would have been compelled to disclose information highly confidential in its nature and which came to him in his professional capacity, and hence within the inhibition of the law.
The contention that, on -the whole evidence, the jury should have been instructed to find for appellant, is without merit. The insured was not asked when she last consulted a physician. She was asked when she “was last attended by a physician,” and her answer was responsive to the question propounded. *193The evidence disclosed that she continued to work until about July 26, 1906, and the company’s physician testified that “she appeared in good health for one of her age” when she applied for a policy. There was no direct evidence that she knew, or even suspected, that she had anemia, pernicious or otherwise, when the policy was issued, and we think the question of her good faith was properly left to the jury.
The judgment is affirmed, with costs. 'Affirmed.