JI'. & M.
(Oircuit Oourt, D. Minnesota. October 24, 1884.) 1.
FIRE INSURANCE-POLICY-EXAMINATION OF INSURJllD UNDJllR OATH.
A stipulation in a policy of insurance that "the assured shall, if required. submit to an examination or examinations under oath by an7. person appointed by the company, and subscribe thereto, when reduced to wrlting, and a refusal to answer any such questions or sign such examination shall cause a forfeiture of all claim under the policy," is valid.
SPJllOIAL VERDlOT GENERAL
SAME - INCONSISTIl\NT DEFENSES- ELEOTION VERDICT-JUDGMENT.
A defense that the fire by which the insured property was destroyed was of an incendiary character and plaintiff implicated therein, may be joined in the answer with a defense that the poliCf contained a condition that plaintiff should submit to an examination under oath, and that such examination had been demanded and refused; and where the jury, in answer to special questions. find that plaintift has refused to submit to such exammation when demanded, and plaintiff has not movcd to compel defendant to elect as to which defense it will rely upon, judp;ment may be entered in favor of the defendant notwithstanding a general verdict against it.
On Motion for Judgment. BREWER, J. This was an action on a policy of insurance. The answer alleged, as a separate defense, that the policy contained the following stipulation:
"The assured shall, jf required, submit to an examination or examinations under oath by any person appointed by the company, and subscribe thereto, when reduced to writing, and a ref.usal to answer any such questions or sign such examination shall cause a forfeiture of all claim under this policy."
-And also. that the company demanded. and the plaintiff refused to submit to such an examination. The policy, when produced on the trial, contained the stipulation, and the jury, in answer to special questions submitted, found that there was a demand and refusal as alleged. Upon this the company moved for judgment notwithstanding the general verdict against it. Plaintiff insists that this defense must be disregarded blilcause inconsistent with another specially pleaded, to the effect that the fire was of an incendiary character and the plaintiff implicated therein. That defense, counsel argues, was that no ever existed; this admits that one existed, but claima that it has become discharged by subsequent action of the plaintiff. Both cannot be true. But, if inconsistent, no motion was made to compel defendant to elect. Conway v. Wharton, 13 Minn. 160, (Gil. 145.) And why should defendant be now compelled to stand upon that defense which the jury have found against it? But they were not in· consistent. The facts alleged in each may have been true. The plaintiff may have burned the property, and he may also have refused to submit to an examination. The defendant may set up all the defenses it claims, and ·if it fails to prove one, may rely on another. In an action to charge an indorser on a note, the defendant may plead no notice and the statute of limitations. Both, as facts, may be true, and
STATE OF TENNESSEB V. WHITWOBTH.
set the former proves that there never was anyestablisheclliability;
while the latter, that all liability has been discharged by the act of the plaintiff in neglecting to sue. Oonway v. Wharton, supra; Shed v. Augustine, 14 Ran. 282. Again, it is insisted by counsel that defendant has waIved the right Surely not by its conduct to insist upon this defense. But how prior to the suit, for it demanded the examination; not by its pleading, for it specifically set up this defense; nor by its course on the trial, for it proved the demand and refusal. A party waives only when he fails to act when he ought to act. But defendant has at all times insisted on this defense. It has never Plisled the plaintiff, 01' acted in such manner as to induce him to believe that it had been waived. An insurer, it is true, by accepting preliminary proofs without objection, or alleging defects therein in its answer, waives all such defects and admits the proofs sufficient. 'That principle was recognized on this trial in respect to the magistrate's certificate; and that is the rule enunciated in the authorities cited by counsel. But that rule does not control in this respect. The right was insisted on in time. The answer pleaded the defense, and the proof on the trial sustained it. Finally, it is a defense. The stipulation is a valid one. It is one for the protection of the insurer, and not onerous to the insurer. It is akin to the stipulation requiring the insured to exhibit his books of account, invoic'es, etc.; 'one in the interests of justice and fair dealing. The insurer may insist on compliance, and the insured must comply or give a valid excuse therefor. Mueller v. Insurance 00. 45 Mo. 84; Dewees v. Insurance 00. 34 N. J. Law, 244. Judgment will be entered in favor of the defendant for costs.
(Oircuit Oourt, M. D. Tennessee. 1884.)
TAXATION-CHARTER EXEMPTION OF CAPITAL STOCK OF RAILROAD-EXEMPTION OF INDIVIDUAL INTERESTS OF STOCKHOLDERS-OBLIGATION 01' CoNTRACT.
The perpetual exemption of the capital stock of a railroad corporation from taxation, by the provisions of its charter, covers the individual interest therein of the stockholders; and a subsequent law imposing a tax on the shares owned by them impairs the obligation of the contract between them and the state, and is unconstitutional and void.
The of a state may distinguish between the interest of a corporate body in Its capital or capital stock and that of the individual shareh9lder as separate subjects of taxation: so that ont! may be taxed and the other exempt, or both governed by the same rule of taxation or exemption, at its discretion. 3. SAME-NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY COMPANY. The Nashville, Chattanooga & St. Louis Hailway ,Company succeeded to all the rights and franchises of the Nashville & Chattanooga RaIlway Companyand the Nashville & Northwestern Railway Company, the shareholders
SAME-POWER OF LEGISLATURE.