March 3, 1926, plaintiff caused the life of her son, aged fifteen years, to be insured by defendant. The application is not made part of the policy nor was any medical examination had. The policy, by its terms, is not to take effect unless, at the time of its issue, the insured is in sound health, and it is declared to be void, if, within two years prior to its date, he has been attended by a physician for any serious disease, complaint or operation, or if, before such date, he has had any disease of the heart. It also 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, physician and other persons to all the questions asked therein and shall conform to all the requirements thereof." On June 3, 1926, exactly three months after the date of the policy, the insured died, and plaintiff filed with defendant proofs of death prepared on forms provided by defendant. These documents in part consist of an undertaker's certificate and the claimant's certificate in which she states that the insured first complained of illness four weeks before his death, that such illness consisted of swelling of the feet, that the cause of death was hydrops and that the duration was only four weeks. She delivered another document to defendant as part of the proofs of claim. It is the attending physician's certificate prepared upon defendant's form. She introduced in evidence the undertaker's certificate and her own, but she marked only for identification that of the attending physician. Upon her objection the court refused to admit it. The error assigned in this judgment is the rejection of this document. If competent evidence, it would raise the most *Page 212 serious issues of fact whether, at the time of the writing of the policy, the insured was in sound health, whether, within two years prior to its date, he had been attended by a physician for a serious disease and whether, before such date, he had any disease of the heart. In his certificate, the physician states that his first visit or prescription in the last illness of the insured was January 3, 1926, two months before the date of the policy and five months before the death of the insured, that health had been impaired two years before death, that he had attended the insured during the year 1924 for grippe and weak heart, that the cause of death was oedema, with "insufficientiavalv. mitr. et aortae" as a contributory cause and that such condition had existed for two years. Attached to the certificate is a statement signed by plaintiff as claimant agreeing that the certificate shall be considered a part of the proofs of death under the policy in accordance with its conditions. After this document had been rejected, testimony was admitted to the effect that it had been read to plaintiff prior to the trial and that she had conceded its correctness. Plaintiff seeks to support this judgment upon the theory that the certificate was hearsay, that her act in supplying defendant with it was involuntary and, therefore, does not constitute an admission by her of the facts therein stated and that it is privileged.
The statements in the certificate do not constitute hearsay. Rather, the paper must be viewed as prima facie evidence of a voluntary admission by the claimant that such statements are true. (Buffalo, L.T. S.D. Co. v. Knights Templar, etc.,126 N.Y. 450; Hanna v. Conn. M.L. Ins. Co., 150 N.Y. 526;Leonard v. John Hancock M.L. Ins. Co., 76 Misc. Rep. 529, per LEHMAN, J.; Wigmore on Evidence [2d ed.], § 1073.) The physician's certificate was one of three papers submitted as proof of loss. The whole admission should have been taken together. If it was sufficient to establish the death of the insured, *Page 213 as plaintiff admits, it was also sufficient to show that death was occasioned in such a manner as to relieve defendant from responsibility. (Ins. Co. v. Newton, 22 Wall. [U.S.] 32.) Plaintiff made the physician her agent in respect to reporting dates and duration and nature of previous illnesses. She may not be held to a personal knowledge of the cause of death as described in abbreviated medical Latin, but she must be assumed to understand the statement that the insured had been attended for two weeks in the year 1924 for grippe and weak heart, an illness which is described by the physician in plainly written English, and the statement that the first visit or prescription during the last illness was in January, 1926, as well as the statement that health had been impaired two years prior to death. These expressions of fact she made her own. Indeed there is testimony which, if credited, proves that she conceded the contents of the certificate to be correct. Very different in principle is the decision in Goldschmidt v. Mut. L. Ins. Co. (102 N.Y. 486), where proofs furnished by a claimant were accompanied by a protest that the facts therein alleged were untrue. Here, plaintiff gave no expression of dissent. This paper unexplained by her and admitted by her to be part of the proofs of death is as much hers as if she had orally related their contents as facts. Its production by her is, prima facie, admission that the facts therein recited are true. (Buffalo,L.T. S.D. Co. v. Knights Templar, etc., supra; Spencer v.Citizens M.L. Ins. Assn., 142 N.Y. 505, 509.) How claimant's act in supplying defendant with this certificate can be regarded as involuntary is difficult to discover. The attending physician was referred to defendant as one authorized to answer for her. She saw the answer in the form of a certificate, for she herself took that certificate to the physician and requested his answers to the questions. (Aldridge v. AEtna L. Ins. Co., 204 N.Y. 83. ) She acted under no coercion.
The reception in evidence of the certificate for the *Page 214 purpose of proving an admission of facts by the claimant would not constitute a violation of the provisions of sections 352 and 354 of the Civil Practice Act which relate to privileged communications. In the absence of express waiver at the trial, the attending physician could not be allowed orally to testify to the facts as stated in the certificate (Redmond v.Industrial Benefit Assn., 150 N.Y. 167; Holden v. Met. L.Ins. Co., 165 N.Y. 13; Meyer v. Knights of Pythias, etc.,178 N.Y. 63), nor is that paper competent original evidence. It operates, however, as an admission by claimant that the facts are as stated. Its reception would violate no confidence for, as observed by Chief Judge ANDREWS in a similar case, the confidence had already been violated by the conjoint action of the physician and the claimant. (Buffalo L., T. S.D. Co. v. KnightsTemplar, etc., supra, at p. 456.) Of course it is not conclusive against her but is binding until corrected or explained. (Ins.Co. v. Newton, supra; Goldschmidt v. Mut. L. Ins. Co., supra;Spencer v. Citizens M.L. Ins. Assn., supra; Hanna v. Conn.M.L. Ins. Co., supra.)
The judgment of the Appellate Division and that of the trial court should be reversed and a new trial ordered, with costs to abide the event.