By the Court.—Miller, J.
—The trial of this cause at the circnit occupied considerable time, and during its progress many intricate questions were raised and decided. Some of these questions related to the admission and rejection of evidence offered upon the trial. It is the opinion of one of the members of this court, that an error was committed by the justice who tried the cause, in refusing to allow certain questions to be put to the witness Barent P. Staats, the medical examiner of the company at Albany, upon an examination of the applicant prior to the taking of the risk. In that opinion I «cannot .concur, and propose briefly to examine the questions [281]*281arising, for the purpose of ascertaining whether any error was committed by the judge in this respect.
The witness was examined on the trial in reference to the circumstances attending the medical examination of Schumacher. On his direct examination, he testified generally to his appearance, size, &c.; and also, that when Schumacher said the amount was $10,000, he replied that he must take off his coat and jacket, and must have a good indorser; it was a large amount, and he must have a good indorser for so large an amount. That he meant he must have a more thorough examination. That Martin then observed that he must not judge from appearances, that Schumacher was the moneyed man of the concern. The witness then proceeded with a more thorough examination. Upon his cross-examination, he swore that his only business was to examine his person, and to examine and report as to the physical condition of his body. Upon being asked if that was all he did, and if he made any other report, he answered, “ That was all I did. I did not make any other report. I reported nothing to the company but what the certificate contains. That related exclusively to the person. The thoroughness of my examination does not depend upon the amount insured.” He also stated that his fees did not depend upon the amount insured.
It will be perceived that the examination made by the medical examiner was confined entirely to matters relating to the physical condition and the health of the insured. Such is the testimony of the witness as to the line of duty required at his hands, and such would appear to be the natural and necessary scope of an examination of such a character. It would be entirely inconsistent with the apparent duty of a physician required to examine and report as to the physical condition of a person, to include in his examination matters which properly belonged to another department. This duty would more appropriately be assigned to the general agent of the company, who conducted its general business, and who would be supposed to take charge of all matters pertaining to the risk.
Independent of the positive evidence of the medical examiner, that his business was merely to examine and report exclusively as to the physical condition of the person; the report that he made was entirely confined to this. The interrogate[282]*282ríes propounded, as will be seen, related entirely to the physical condition. The opinion required, was an “ opinion on the life,” evidently showing that it was the design and intention of the company to confine him entirely to the specific duty of medical examiner.
It is claimed that a decided opinion, recommending the acceptance or rejection of the proposal, embraced every thing which related to the physical or the pecuniary condition of the applicant. It strikes me that this view of the question cannot be upheld. The decided opinion required, was limited to an opinion based upon the interrogatories previously propounded, and in accordance with the last interrogatory but one, “ an opinion on the life.” If it were otherwise, the medical examination would include a range of inquiry more appropriately belonging to another sphere. It would actually embrace that of the general agent and the company itself, whose business it was to look after the general interests of the corporation, and the general characteristics of the risk. It would be absurd to say that a physician, assigned by an insurance company to examine as to the physical condition and health of an applicant for a policy of insurance, was required to look after every possible aspect of the case, and to be governed and controlled by his or her pecuniary circumstances, in forming his opinion “ on the life.” I think the doctrine contended for is irrational and cannot be sustained.
Upon the redirect examination of the witness by the defendants, he further stated that he always took a memorandum of the amount, to settle his accounts with the company, and to graduate the amount of his fees. Upon being asked, when Martin said Schumacher was the moneyed man of the concern, Did you believe it ? he replied: “ I thought it must be a very small moneyed concern, if he was the principal of it.” The question was then put. to the witness, whether, if it had not been for that representation, he would have recommended the acceptance of the proposal. The witness had already sworn that he thought it must be a small moneyed concern, if he was the principal of it, and notwithstanding this, he had recommended the risk; and the question put tended somewhat to contradict his evidence in reference to the opinion he had expressed as to the representation and his written recommendation of the risk. [283]*283In this respect, it may be questionable if it was admissible. I think, however, that it was incompetent on other and stronger grounds. It called for the opinion of the witness upon a point upon which he was not required or authorized, within the legitimate performance of his duties, to express an opinion. He was the medical examiner of the company. What had he to do with the question, whether this man was the moneyed man of the concern? No such inquiry was propounded to him. No such fact was within the scope of his authority. It was. the physical, not the pecuniary condition of the insured that he was to examine. He was required to express an opinion on his life, not his property. He had already given an opinion as to that, from the examination made of his person. With this evidence introduced, it cannot fairly be claimed that he was required to go further and qualify it, by basing that opinion upon a matter that could have no connection whatever with his duties and responsibilities.
It is said that he was as competent to show the effect of such representations, as are the vendors of goods to show that they were induced by false representations to sell them, and as insolvents are to negate an intent to defraud their creditors in making a general assignment.
The cases are not analogous. Where a person sells goods to a fraudulent debtor, the whole transaction is presented. The fraudulent representations are the grounds upon which a recovery is sought. These are the inducement for the sale, and the effect they produced upon the mind of the vendor is material, important, and controlling. So in regard to an insolvent. This intent to defraud is the very essence of the matter in controversy. In the case of a medical examiner, the pecuniary condition of the applicant can have but little, if any thing, to do with his physical state. It is not properly before him. He is confined and restricted to a mere medical examination. Upon this his opinion is to be based. It is not within the scope of his power to express an opinion upon any other point, and he is disqualified from so doing by all the rules of law applicable to such cases. In order to require an opinion of a witness upon any subject, it must be made to appear that the subject-matter was one upon which he might properly be called upon to form an opinion, which would govern his action. In [284]*284the present case, the interrogatories which were presented to the witness clearly showed that the inquiry was not properly before him, as it was in the case referred to. By these interrogatories, he was restricted to the physical condition of the party. Besides the infallible testimony of the interrogatories themselves, the witness positively swears that such was the case. Can he be called upon to contradict the interrogatories and his own evidence, and to express an opinion whether he would have recommended the acceptance of the proposal, but for a representation that he was the moneyed man of the concern ? I think not; and the question was properly excluded.
The second question, whether the representation had any, and if any, what effect upon the mind of the witness, is liable to the same objection, and the remarks already made are applicable.
The third question, whether the representation had any, and if any, what influence upon the subsequent action of the witness in making his certificate and report, is equally objectionable, and comes within the same category.
The two last questions were objected to upon the additional ground that they were cumulative. There may be some doubt whether the witness had not already sufficiently answered these questions, and virtually expressed his opinion as to the effect of the representation that Schumacher was the moneyed man of the concern, by signing the certificate, and by testifying that it was a very small moneyed concern, if he was the principal of it; in fact, whether he had not fully and completely negatived the idea that it had produced any effect and influence upon his ! mind, in recommending the risk, and in making his certificate and report. I am inclined to think that he had, and the defendant had, really, the whole benefit, by his answer to the question first put, which could be derived from an answer to all of the questions which were excluded on the trial. I am also of the opinion, that the questions were properly overruled for the reasons already given, and that this was not a case where the defendant was entitled to the opinion of the witness.
It is claimed that the question here presented is covered by the decision of the Court of Appeals, when this case was before them. (20 N. Y., 32.) The court there held that a policy of ■ insurance is avoided by a fraudulent representation in respect [285]*285to a fact not material to the risk, if, in the judgment of the insurer, it be material in respect to the inducements to undertake the risk. The question, in the Court of Appeals, arose upon an exception to the charge of the judge, and not upon a question as to the admissibility of evidence. There is a marked, distinction, in my judgment, between a fraudulent representation made to an insurer and a statement made to a medical examiner, whose duties are expressly confined to an examination of the physical condition of the applicant. I have already discussed somewhat the difference between the two cases, and perhaps it is needless to say more. It may not be amiss to observe, that while the insurer, who is represented by the general agent of the company, has a general jurisdiction and control over the whole matter, the duties of the medical examiner are more specific, more narrow and circumscribed. The latter is a subordinate officer, acting under the general direction of the company or its general agent. I think that it cannot be fairly claimed that it was within the province of the medical examiner to pass upon the question whether the applicant was the moneyed man of the concern. He was not called upon to decide any such question. And such a representation would not properly have exercised any influence whatever upon his judgment, unless he assumed far greater power than was conferred upon him.
On the other hand, the general agent is the representative of the company. He receives the application, examines into the whole case connected with the issuing of the policy, receives the premium, and delivers the policy. He is, in fact, the insurer. And any representation made to him, if it influences his mind, is material and important. There is a broad distinction between the two cases. And while there appears to be no propriety in asking the opinion of the medical examiner as to the pecuniary circumstances of the person examined, there is an eminent appropriateness, a peculiar fitness, in ascertaining whether the judgment of the general agent was influenced by any such representations.
It is also said that the judge, at the circuit, upon the request of the defendant’s counsel, charged that if the medical examiner of the company was induced by the false representation that Schumacher was the moneyed man of the concern, to rec[286]*286ommend the acceptance of the application, and such recommendation had a material influence with the company in inducing them to issue the policy, then the policy was void, and the plaintiffs could not recover. Considerable stress is laid upon this portion of the charge, to sustain the position that the questions were proper. I incline to the opinion that the charge may have been correct, in reference to the testimony already given. It must be borne in mind that the witness had already testified that he thought that it must be a small moneyed concern, if he was the principal of it; and hence it may not have been improper for the judge to have charged as he did in reference to the testimony presented, with this expression of the opinion of the witness, and his action showing that the representation could have no influence upon his judgment under the circumstances, and with the charge of the judge pointedly upon the question.
Can it be urged with any force that the exclusion of the evidence had any weight upon the decision of the jury? I deem it unnecessary to pursue the inquiry further, preferring to dispose of the question upon other, and what I deem more substantial grounds.
It will be remembered that the judge was called upon to charge upon over twenty distinct propositions by the defendants’ counsel. He charged upon most of these in favor of the defendants. Conceding that in the one referred to he made a mistake, it cannot be regarded a ground of complaint. The plaintiff may have excepted for this reason, but no argument in favor of the defendants’ position that the evidence was proper, can be drawn from the fact that the judge charged in conformity with it. It only shows that the judge charged more favorably for the defendants than was warranted, as he clearly did, if the charge covered the questions overruled. And it has been repeatedly held by frequent decisions of this general term that this is no ground of error.
Even if it shows the judge was inconsistent, which I am not prepared to admit (and this is the utmost which can be claimed for the charge in this particular, so far as it bears upon the question now discussed), yet it is no ground for urging that he erred in rejecting the evidence.
A judge is frequently called upon, at the close of an impor[287]*287ant and lengthy trial, to charge upon numerous propositions involving intricate and important questions, which he must necessarily dispose of without much examination, and with little deliberation. In my judgment, it should be his aim and object, so far as practicable, to divest the case of difficult and troublesome questions: while he guards the rights of all parties in his charge, he should be careful to injure none by refusing to charge upon propositions made to him by learned counsel. If his charge is more favorable than is demanded, it cannot be regarded by the party who has the benefit of- it as an argument in favor of a new trial upon another point of the very same character, and embracing the same principle taken by him upon the trial in another stage of the case. It is at most an error which the party who excepts to it alone can complain of. As I have already shown, the charge as made may have been pertinent as the case stood : if it was not, the defendants have not lost any rights, and their grounds for a new trial must not rest upon the fact that the judge charged as they claim was right upon one proposition, even although he may have committed an error in deciding differently upon another ruling. The defendants must stand or fall upon the correctness of the ruling of the judge upon the admissibility of the evidence rejected; and I think the judge properly excluded the questions put to the witness.
I have confined my remarks to a discussion of the question presented in the opinion of the learned judge; but upon an examination of the other questions involved, I am satisfied that no error was committed on the trial. In a case of this magnitude, which has been twice tried at great length, and at large expense, while the forms of law should be duly observed, while the rights of all parties should be carefully and sacredly guarded, while we should rigidly scrutinize the proceedings of the trial to see that no error was committed, even if it is purely technical, and that no injustice has been done, a new trial should not be granted unless some plain legal rule or principle has been violated. I cannot see that such has been the case. I am therefore constrained to differ from the opinion of the learned judge in favor of granting a new trial.
A new trial should be denied, and judgment affirmed with costs.
[288]*288Gould, J.
The sole point discussed in the two opinions before me relates to the rejection of the testimony (offered by the defendants) of Dr. Staats, as to his being influenced by fraudulent representations to recommend the risk to the company.
ISTo doubt the charge, given at the request of the defendants, did say that if the medical examiner of the company was influenced by the false representations that Schumacher was the moneyed man of the concern, to recommend the acceptance of the risk, and that recommendation had a material influence on the company in inducing it to issue the policy, the policy was void, and the plaintiff could not recover. But the judge’s seeing fit to gratify the defendant by stating such .a point, cannot make relevant testimony not otherwise relevant. And, from a careful examination of the case, it would seem that the excluded testimony, as well as that admitted, as to Dr. Staats being influenced by the false representations, could, in no view, be relevant.
The last question of those addressed to him by the company’s circular was, of necessity, but a summing up of the prior questions, equivalent to asking, “ Since you have, in detail, stated the particulars as to the applicant’s health, will you state, in conclusion, whether on the whole his health is such that you consider the risk a desirable one; and would you, as to that ground, recommend its being taken ?”
This question is to be considered as applied to the subject-matter before him. And the company must have understood it, as this court would understand it, precisely as it purports. And, taken in that sense, it is merely impossible that the element of his pecuniary condition, instead of his sanitary, could have influenced the answer. The doctor would hardly say that his being a moneyed man would alter the number of pulsations, the liability to coughs, or the likelihood of living long. And as it could not alter any of the prior answers, how could it affect the concluding inference ?
To have the answer influence the company, it was necessary that it be an answer to the company’s question; and we are to view it in the light in which the company would, from the paper, understand it. And there is in the case no shadow of proof as to any effect it had on the company.
In that view, I see no error in the ruling. And whether I [289]*289should have found the verdict or not, I hardly deem this ground sufficient to order a new trial.
Hogeboom, J.
When this case was before the Court of Appeals, it was held that a policy of insurance is avoided by a fraudulent representation in respect to a fact not material to the risk, if in the judgment of the insurer it be material in respect to his inducements to undertake the risk. The particular request which the defendants’ counsel made to the judge at the circuit, in the trial then reviewed, was, that if it was untruly represented by Schumacher, or in his behalf, to the agent of the defendants, that Schumacher was the moneyed man of the concern, and that the defendants would not have issued the policy without this, then the policy was void. The judge refused so to charge, and the Court of Appeals granted a new trial) for that and kindred errors. The general principle established was, that fraudulent representations made to the insurer, though not material to the risk, yet material in the judgment of the insurer, and inducing the risk, will avoid the policy. The court made no distinction in this case between representations made to the defendants, or their directors or officers in New York and their agent at Albany.
The judge at the present trial charged in accordance with this doctrine. He went further, and in conformity with the request of the defendants’ counsel, charged that if the agent, but for the false representation made by or in behalf of Schumacher, that he was the moneyed man of the concern, would not have acted further on the representation (that is, npt have recommended to his principals the issuing of the policy), then the policy was void. It appears to have been assumed that if the agent had recommended the rejection of the application, it would have been rejected by his principals.
In another part of the charge the judge held, and I think properly, within the scope of the decision of the Court of Appeals, that if the defendants were induced to issue the policy by the false representation made to their agent, that Schumacher was the moneyed man of the concern, it was void. Mr. Lacey, the agent, had stated in-substance, that but for the representation that Schumacher was the moneyed man of the concern he would have recommended the rejection of the application.
[290]*290The judge at the circuit, upon the request of defendants’ counsel/went further still, and charged that if the medical examiner of the company was induced by the false representations that Schumacher was the moneyed man of the concern to recommend the acceptance of the application, and such recommendation had a material influence with the company in inducing them to issue the policy, then the policy was void, and the plaintiff could not recover.
I think this charge also was within the spirit of the rule laid down by the Court of Appeals. The medical examiner must be regarded as much, and in as important a sense, the agent of the company as the local agent at Albany, Mr. Lacey. And his recommendation of the acceptance of the risk must be deemed likely to have had a material and controlling influence with the company in inducing the acceptance of the application.
All testimony, therefore, properly tending to show that the representation of the pecuniary responsibility of the applicant had an influence upon the medical examiner in inducing his recommendation of the acceptance of the application, was admissible.
There was testimony in the case tending to show that representations of that - character were made to Doctor Staats. There was also testimony to show that these representations were false.
The effect which these representations had upon the mind and the action of Doctor Staats was sought to be ascertained, on the part of defendant, by three questions put to him, all of which were overruled, and I think improperly. The first was, whether he would have recommended the acceptance of the proposal but for this representation ?
The object, of course, was to show he would not, and the question was material. He was competent to show the effect of such representation upon his action; as are vendors of goods to show they were induced by false representations to sell'them; and as are insolvents who make a general assignment, to negate an intent to defraud their creditors in making the assignment.
The second question was, Did the representation produce any, and if any, what effect upon your mind ?
This question was equally admissible; and although it was not as comprehensive as the first, it tended in the same diree[291]*291tion, and was perhaps designed to remove any doubt as to its being leading.
The third question was, whether the representation had any, and what influence upon his subsequent action in making his certificate and report.
This question was, I think, of the same character, and directly tended to favor facts material to the case, and material to the view which the judge subsequently took of it in his charge to the jury.
Similar evidence to that here excluded was admitted from the witness Lacey. I do not perceive any solid distinction between the two cases, nor why, in law, the recommendation of the general business agent of that locality should be regarded as of any more competency than that of the medical agent.
If my brethren agree with me in this view of the case, it is not indispensable to examine any of the other questions which arose on the trial; and as some of them are of some difficulty and complexity, I prefer not to embarrass a future trial with the discussion and decision of doubtful points.
With regard to the defendant’s application to amend his answer, and as that failed to be acted on by reason of the denial of the motion for a new trial, I think the more appropriate disposition of it belongs to the special term, where the plaintiffs can be heard in opposition to the application.
My opinion is, that the judgment should be reversed and a new trial granted, with costs, to abide the event, and without prejudice to a renewal of the application by defendants at special term to amend their answer.
Judgment affirmed.