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tive statement that the fact of such owner- exchange of land and relied upon by Linn, ship and possession existed. 2 Pom. Eq. who actually made the exchange. Here, in Jur. $ 877.

the simplest form, are all the essential ele[2] Brown's contract with Jackson was not ments necessary for a misrepresentation to recorded, and would not appear on an ab- constitute fraud in any case. 2 Pom. Ey. stract of title if one had been furnished, cer- Jur. $ 876. It has been held that in a sale tified to the date of the exchange of deeds. of land induced by false representations of Jackson's possession of the land in Missouri the vendor affecting the sufficiency of his tiwas the only notice that Linn had of Jack-tle, upon which representations the vendee son's rights, whatever they might be. Linn had a right to rely and did rely, it is immawas in Colorado. Under such circumstances, terial whether the vendor had knowledge there can be no question that Linn had the or not of the falsity of the representations. right to rely upon Brown's representations. Orendorff v. Tallman, 90 Ala. 441, 7 South.

[3] In the brief it is claimed that the rep- 821. Under the facts present Linn may reresentations made by Brown in his letters scind the contract. Orendorff V. Tallman, were made while the first proposition was supra ; Ballou v. Lucas, 59 Iowa, 22, 12 N. under consideration, and, because that prop-W. 745 ; Vaughn v. Smith, 34 Or. 54, 55 Pac. osition was not carried out, what was said 99; 29 Am. & Eng. Ency. of Law, 657. in the letters could have no bearing on the [6] Here, as in the court below, it is concontract made and which was the result of tended that the complaint does not state another proposition. The position is not at facts sufficient to constitute a cause of acall tenable. The representations made by tion. Usually complaints contain a superBrown were never changed by him, but were abundance of words and allegations. For permitted to stand and to have the same some reason, this one lacks that usual chareffect in the consideration of the second acteristic, and narrowly escapes being subproposition as in the consideration of the ject to the demurrer. The complaint, among first. The negotiations were continuous, and other allegations, alleges, in substance, that were made up of proposition and counter Brown represented to Linn that he was the proposition as usually characterize such absolute owner in fee and in possession of matters.

the Missouri land, and that Linn, relying [4] Brown was not the absolute owner of on these representations, made the exchange. the land in fee simple and in possession The objection which appears to be made to thereof either by himself or through a ten- the complaint is that it is not alleged that ant. Jackson was in possession under his these representations upon which Linn re contract of purchase. Loventbal v. Home lied were false. It is true that the comIns. Co., 112 Ala. 108, 20 South. 419, 33 L. plaint nowhere describes the representations R. A. 258, 57 Am. St. Rep. 17; Imp. F. Ins. by the word "false" or word of similar imCo. v. Dunham, 117 Pa. 460, 12 Atl. 668, 2 port, but it does allege, in substance, that Am. St. Rep. 686; M. M. Ins. Co. v. Rhea & Brown and Jackson had entered into a conSon, 123 Fed. 9, 60 C. C. A. 103. This was tract of sale and purchase of the land, and true even if Brown had talked with Jackson that Jackson was in possession of the land before making the exchange, for from as the purchaser, under this contract, and Brown's own evidence it appears that what had been in such possession for more than a ever took place between him and Jackson year before the commencement of the action before the exchange, if anything, did not re- and exchange of deeds. The one allegasult in a surrender or cancellation of the tion states the representations. The other contract between them, nor make Jackson allegation states facts which, if true, show a tenant of Brown. Jackson's contract and the representations to be false. The facts relation remained the same as before. alleged must be taken as true on demurrer, Brown knew of the contract with Jackson and the conclusion follows that the represenand the latter's possession, and knew that tations are false. This is sufficient as what he represented in his letters and by against the demurrer. Miller v. Hall, 14 his attitude was not a correct statement of Colo. App. 367, 60 Pac. 194; Kilpatrick v. the facts as they existed. These misrepre- Haley, 14 Colo. App. 399, 60 Pac. 361. sentations relate:1 to the subject of the trans [7] Brown paid the $600 mortgage on action, and were of such a character that Linn's land. The court ordered Linn to pay they would naturally induce Linn to make $800 into court for Brown, covering the the exchange, and were followed by the ex- amount paid on the mortgage, and the $200 change. It is therefore presumed that which Brown had paid Linn in the exchange. Brown made them for the purpose and with It is now claimed that Brown paid some inthe intention of having them relied upon and terest on the mortgage, and should receive of inducing Linn to make the exchange. 2 this interest. It was alleged in the comPom. Eq. Jur. & 880.

plaint that Brown had paid the $600 mort[5] It thus appears that the representa- gage and the $200. In his answer Brown altions made by Brown were false statements leged that in the agreement for exchange of material facts, concerning the subject of he "was to and did pay $800, the difference the transaction, known by Brown to be un- in value, viz., $200 in cash and the mortgage

paid more than $800, it does not so appear , judge to instruct the jury that there was a from the answer or the evidence.

presumption of negligence from the mere Several errors are assigned on the admis- happening of the wreck, after the defendant sion of testimony over objections. The trial had offered some evidence tending to prove was to the court. The inquiry covering an that there was no negligence on its part.” alleged fraudulent transaction, calling for Both of these grounds urged for a rehearing the interposition of equity, was wide in its are ably and elaborately discussed in appelscope. It does not appear that the evidence lant's petition for a rehearing, which we was inadmissible. Several other errors are have given thorough and serious consideraassigned which need no particular notice tion. We are still convinced, however, that because they are manifestly without merit. the judgment affirmed in our opinion should The judgment is affirmed

not be disturbed. Judgment affirmed.

We desire to confess inadvertently assert

ing the fact that the conductor and engineer CAMPBELL, C. J., and GARRIGUES, J., in charge of the wrecked train were not concur.

called as witnesses, which we were led in error to make by reason of one of the briefs of

counsel, but still insist that, if such were (33 Nev. 385)

the fact, the law as expressed in the opinSHERMAN v. SOUTHERN PAC. CO. ion on this point is sound, and that had the (Supreme Court of Nevada. June 5, 1911.) company failed to have called them as wit1. TRIAL ($ 132*)-ARGUMENT—WITHDRAWAL. nesses, having been in charge of the train

Where, on the trial of an action against 'a as they were at the time of the wreck, they railroad for injuries to a passenger by collision, would still be considered to be in the emplaintiff's attorney in his argument inadvertently referred to the nonattendance of witnesses for ploy of the company until the contrary was defendant, when, in fact, they were present and shown or their absence explained by the de testified, it is no ground for reversal, where the fendant company, and, if not called as witstatement is withdrawn and defendant failed to account for the accident to the satisfaction of led for to the jury, that it would be legiti

nesses or their absence explained or accountthe jury, and to overcome the prima facie presumption of negligence which arises from the de- mate argument before the jury for counsel of railment of the car in which plaintiff is riding the plaintiff to have argued that their testi

[Ed. Note.-For other cases, see Trial, Dec. mony might be adverse to the company, and Dig. § 132.*]

such argument would .not be prejudicial er2. CARRIERS (88 316, 320*)-PRESUMPTION OF

The record shows that the remarks NEGLIGENCE-DERAILMENT OF CAR.

A presumption of negligence arises against made by counsel for the plaintiff during the a carrier immediately on plaintiff proving that course of his argument were in reference to he was injured by the derailing of the car in an engineer and conductor of another train, which he was riding, and it is for the jury to which, by the report of Conductor Trousdetermine from the evidence in rebuttal as to whether defendant sufficiently overcame this pre- dale of the wrecked train, were named as sumption.

persons "who witnessed the accident or con [Ed. Note.-For other cases, see Carriers, give any information regarding it," and the Cent. Dig. $ 1288; Dec. Dig. 88 316, 320.*]

inadvertence was in referring to these parOn petition for rehearing. Rehearing de ties in the former opinion as being the enpied.

gineer and conductor, respectively, of the For former opinion, see 111 Pac. 416. wrecked train. A further examination of

Charles R. Lewers (Frank Thunen, of the record in regard to this assignment of counsel), for appellant. A. E. Cheney, R. M. crror discloses that counsel for the plaintiff Price, 0. J. Smith, and W A. Massey, for withdrew his remarks with reference to the respondent.

failure of defendant to call these witnesses,

and that the final exception taken by counsel SWEENEY, C. J. On the 3d day of De for the defendant did not go to this portion cember, 1910, in an opinion unanimously of his remarks. We quote from the record agreed to by this court, we affirmed a $15,- the following excerpt bearing upon this prop000 judgment awarded to the plaintiff by a osition: “Mr. Shoup: Upon both proposijury against the defendant for injuries sus- tions; that is, as to the witnesses as well as tained in a railway accident by reason of the injuries? The Court: As to the witnessa derailed car on which the plaintiff was es? Mr. Shoup: Yes. The Court: I do not riding as a passenger at the time of receiv- understand that counsel desired to extend ing the injuries. Counsel for appellant pe- to that. Mr. Cheney: Well, it is immaterial, titions for a rehearing upon the following if the court please. If counsel objects to grounds: "(1) Because this court inadver- what I said about these other parties, as to tently misconstrued evidence in assuming the conductor or engineer not being witnessthat the conductor and engineer in charge es, that may be withdrawn, if desired.' Mr. of the wrecked train were not called as wit. Shoup: We desire to have an exception to nesses. (2) That the court did not pass upon the ruling of the court as to the contents the question as to the power of the trial l of the report. So far as it relates to the

ror.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

plaintiff's injuries, we would like to have an | to prove there was no negligence on its part. exception upon that. The Court: Note the The presumption of negligence against the exception."

company arose immediately upon the plain[1] However, aside from this inadvertent tiff proving the accident to be due to the statement concerning the nonattendance of derailed car, and it was for the jury to de these witnesses, when, in fact, they were termine from the evidence in rebuttal to this present and testified, in view of the failure presumption, which arises in law, as to of the company to account for the accident whether or not the company sufficiently reto the satisfaction of the jury and overcome butted this presumption. When a passenger the prima facie presumption of negligence buys a ticket on a passenger train and enters against the company, which always arises in his compartment of travel, he practically law when the plaintiff proves the derailment places his life and limb in the custody and of the car, and which the defendant must care of the railroad company, and having overcome, we can see no such material prej- paid for the privilege of riding, with no auudice suffered by the defendant by reason thority to employ or select the employés of of the remarks of counsel for the plaintiff to the carrier, to inspect its train, or construct warrant this court in reversing the judg- its roadbed, he has the right to rely upon the ment. The plaintiff proved that he was a carrier for safety whilst on his journey, and passenger with paid fare on one of defend- it is both right and just that the responsibilant's trains, that the train was wrecked, and ity of seeing the passenger is safely conveyed by reason of said wreck he received certain rests solely upon the company; and if a physical injuries. Plaintiff further proved collision or derailment of the train or car that the train was operated by the defendant on which he is traveling occurs by reason of company, and that whatever defect there faulty construction of the car or the roadwas either in the roadbed, train, or its op- bed, or by reason of neglect of some of the eration which caused the derailment, that company's employés, it is right and proper such knowledge is presumed in law to be pe- that the burden of proving that they are not culiarly within the knowledge of the defend- in default in any of these respects rests upant, and its officers and agents, and without on the company, and the law is well and justthe knowledge of the respondent. Having ly settled that the presumption of negligence proved these facts, the plaintiff was privi- arises against the company whenever a deleged to rest his case, and, in the absence of railment or collision takes place. The rule any other proof, the wreck would be infer- as to the liability of the carrier was very red, as a matter of law, to be caused by the fully elucidated in a number of other indefendant's negligence, and plaintiff entitled structions given to the jury, and it cannot to judgment, unless this presumption was be said, we think, that the jury was not fully rebutted, which fact of whether or not the instructed upon the rule of liability and the presumption is overcome is for the jury to proof the defendant was required to offer to determine from all the evidence adduced. relieve itself from liability for the accident The law which we have laid down in our and the injury resulting therefrom. We opinion we believe without any question of think the jury was fully and fairly instructdoubt to be the law and supported by the ed, and that a greater degree of proof was great weight of modern authority to the ef- not required of defendant than the law imfect that, "where 'a passenger is injured by poses, and that the force, extent, and limithe derailment or collision of a train, there tations of the presumption of negligence arisis in law a presumption of negligence, which ing from the accident was fully pointed out immediately arises against the company, re- to the jury and the defendant's position in quiring evidence by the company to rebut the law fully presented. Murphy v.. Southit." If we have failed to make ourselves

ern Pac. Co., 31 Nev. 120, 101 Pac. 322: clear on this point, we desire to reaffirm Burch v. Southern Pac. Co., 32 Nev. 75, 104 that in our judgment there is no question but Pac. 225; Sherman v. Southern Pac. Co., 33 that this is sound law, and fou

led on rea- Nev,

- 111 Pac, 416. son and justice.

Again, we reaffirm the law to be sound and [2] Unquestionably the lower court had the well settled that "where a passenger proves legal power to instruct the jury that there that he was injured by a collision or derailed was a presumption of negligence arising train that there is in law a presumption of against the company when the wreck was negligence against the carrier," and in view proved to have been the result of a derail of the thorough review which we gave to ment, and while the company had the privi- the case in our original opinion, and being lege and authority, and it was its duty, to still satisfied after a review of the same that rebut this presumption, if it could, yet we the law therein stated is correct, the petition believe there was no invasion of the exclu- for a rehearing must be, and is hereby, desive function of the ury, as declared by nied. counsel in his petition for a rehearing, when

Let such be the order. the court instructed the jury, even after the

ATION.

(43 Mont. 243)

among the several states, within the meanNEW YORK LIFE INS. CO. V. DEER ing of that clause of section 8, art. 1, of the LODGE COUNTY.

Constitution of the United States, which in(Supreme Court of Montana. April 25, 1911.) | vests the Congress with power to regulate 1. COMMERCE ($_74*)--INSURANCE COMPANIES commerce among the several states. -Excess OF PREMIUMS OVER LOSSES-TAX- Said tax was and is illegal, unlawful, and

Rev. Codes, $ 4073, providing that every in- poid, for that said defendant was without surance company transacting business in the jurisdiction to levy or collect said tax, and state must be taxed upon the excess of premiums the levy and collection thereof was and is over losses and ordinary expenses within the state a burden upon interstate commerce.” The during the previous year, applies only to busi- district court of Deer Lodge county sustainness transacted within the state, and is not objectionable as an interference with interstate ed a general demurrer to the complaint, commerce.

whereupon plaintiff refused to further plead, [Ed Note.-For other cases, see Commerce, and judgment was entered in favor of the Cent. Dig. $$ 124-133; Dec. Dig. § 74.*]

defendant. The appeal is from the judg2. COMMERCE ($ 45*)—SUBJECTS OF REGULA- ment. Appellant's contention is that the tax "TION-INSURANCE. The business of life insurance conducted

was illegal and void for the reasons set in the state by a foreign corporation under a forth in the complaint. . Section 4073, Reviscertificate of authority from the state, collected Codes, reads as follows: "Each and every ing premiums and paying losses on policies and insurance corporation or company transactmaking loans to policy holders on the security of their policies, is not commerce" within Const. ing business in this state must be taxed upU. S. art. 1, $ 8.

on the excess of premiums received over [Ed. Note. For other cases, see Commerce, losses and ordinary expenses incurred withCent. Dig. $ 33; Dec. Dig. $ 45.*

in the state during the year previous to the For other definitions, see Words and Phrases, year of listing in the county where the agent vol. 2, pp. 1287-1298; vol. 8, pp. 7606, 7607.)

conducts the business, properly proportionAppeal from District Court, Deer Lodge ed by the corporation or company at the County; Geo. B. Winston, Judge.

same rate that all other personal property Action by the New York Life Insurance is taxed, and the agent shall render the list, Company against Deer Lodge County. Judg- and be personally liable for the tax; and if ment for defendant, and plaintiff appeals. he refuse to render the list or to make afAffirmed.

fidavit that the same is correct, to the best R. L. Clinton and Jas. H. McIntosh, for of his knowledge and belief, the amount appellant. Albert J. Galen, Atty. Gen., and may be assessed according to the best knowlJ. A. Poore, Asst. Atty. Gen., for respondent. edge and discretion of the assessor. Insur

ance companies and corporations are subject SMITH, J. The plaintiff is a life insur- to no other taxation under the laws of this ance company, incorporated under the laws state, except taxes on real estate and the of the state of New York, doing a general fees imposed by law." life insurance business in every country of Several paragraphs of the complaint are the civilized world, including all of the devoted to a narration of the manner in states, territories, and possessions of the which the business of life insurance is carUnited States. During the year 1909 it re- ried on and transacted between the plaintiff ceived from policy holders residing in Deer and its policy holders. Among others we Lodge county in this state premiums aggre- find paragraph 5, which we quote: "Said gating the sum of $14,233.41. The insurance several policies provide for advances or loans losses sustained and the ordinary expenses to the policy holder on the pledge of the polincurred, in the county, during the year icy as security, and pursuant to said proviamounted to $8,888.41; the excess of premi-sion the plaintiff has outstanding advances ums over losses and ordinary expenses being or loans made to its policy holders in said the sum of $5,345. In the year 1910 the state aggregating the sum of, to wit, $432,county assessor of the county, claiming to 878. For more than 10 years last past the act by virtue of section 4073, Revised Codes, plaintiff has had outstanding advances or placed the plaintiff's name on the assessment loans to policy holders in said state aggreroll as the owner of personal property in the gating a large sum. Said loans have each said sum of $5,345, and thereupon the taxing and all been made by the policy holder transauthorities imposed a tax against it in the mitting to the home office of the plaintiff an sum of $209.79, based upon said excess of application for the loan, which said applicapremiums over losses and ordinary expenses. tion the plaintiff considered and acted upon This latter sum it paid under protest, and at its home office, and, if it accepted it, the this action was brought to recover the same. plaintiff made out at its home office a loan It is alleged in the complaint that "all the agreement which it forwarded by mail for business of the plaintiff now doing or hither- execution, and, after executing it, the policy to done with the state, or with residents, holder forwarded the loan agreement and citizens, or inhabitants thereof, * * is the policy to the home office, and, on receipt interstate intercourse, and is commerce thereof at its home office, the plaintiff for*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

warded the proceeds of the loan by mail to y amount of business done by the company, as the policy holder within said state by the well as the situs of its tangible property, plaintiff's check drawn to the policy hold- may be considered in applying the various er's order on its bank account in the city of systems of taxation. The franchise of a corNew York. In this manner the plaintiff is poration is granted by the jurisdiction where continuously making advances to its policy the company is incorporated, and its situs is holders in Montana.” Whether this and oth in the state or country of its origin; but, beer paragraphs of the complaint were insert- fore the company can do business in this ed in order to distinguish the case from that state, it must comply with the terms of the of Northwestern Mutual Life Ins. Co. v. statute relating thereto, and upon such comLewis & Clarke County, 28 Mont. 484,- 72 pliance a certificate of authority is issued to Pac. 982, 98 Am. St. Rep. 572, and other it. It then stands under this law on the cases herein cited, we do not know, At the same footing with domestic companies, and argument no suggestion to that effect was is subject to the same taxation on the same advanced, and we find nothing of it in the class of property. This certificate of authorprinted brief. We shall therefore assume ity issued to a foreign insurance company that the plaintiff company is engaged in the confers upon such company a privilege or same general line of business as was the right not possessed or enjoyed by citizens plaintiff in Northwestern Mutual Life Ins. generally, and not conferred upon it by its Co. v. Lewis & Clarke County.

original franchise. This right or privilege In Paul v. Virginia, 8 Wall. 168, 183, 19 L. so conferred is in that sense a franchise, and Ed. 357, the Supreme Court of the United by it the company is authorized to establish, States, speaking through Mr. Justice Field, conduct, and maintain an insurance business, said: “Issuing a policy of insurance is not a the value of which is ascertained in the transaction of commerce. The policies are manner prescribed by statute; that is, the simply contracts of indemnity against loss (by excess of premiums over losses and ordinary fire), entered into between the corporations expenses incurred.' It applies only to busiand the assured, for a consideration paid by ness transacted within the state, and is not the latter. These contracts are not articles objectionable as interfering with interstate of commerce in any proper meaning of the commerce." word. They are not subjects of trade and [2] We therefore hold that the life insurbarter offered in the market as something ance business from which arose the excess having an existence and value independent of premiums over losses and ordinary exof the parties to them. They are not com- penses upon which the assessor of Deer modities to be shipped or forwarded from Lodge county levied a tax is not interstate one state to another, and then put up for business, and is not commerce within the sale. They are like other personal contracts meaning of section 8, art. 1, of the federal between parties which are completed by their Constitution. signature and the transfer of the considera The judgment is affirmed. tion. Such contracts are not interstate trans Affirmed. actions, though the parties may be domicil. ed in different states." See, also, Ducat v. BRANTLY, C. J., and HOLLOWAY, J., Chicago, 10 Wall. 410, 19 L. Ed. 972, Philadelphia Fire Ass'n v. New York, 119 U. S. 110, 7 Sup. Ct. 108, 30 L. Ed. 342, Hooper v.

(43 Mont. 189) California, 155 U. S. 648, 15 Sup. Ct. 207, 39 L. Ed. 297, Nutting v. Massachusetts, 183

O’MEARA V. MCDERMOTT. U. S. 553, 22 Sup. Ct. 238, 46 L. Ed. 324, and (Supreme Court of Montana. April 17, 1911.) Western Union Tel. Co. v. Kansas, 216 U. S. 1. JUDGMENT (533*) - CONSTRUCTION – RES 1-45, 30 Sup. Ct. 190, 54 L. Ed. 355, also the

JUDICATA. case of New York Life Ins. Co. v. Cravens, judgment construed, and held to show that the

In an action on a pote and for services, a 178 U. S. 389-401, 20 Sup. Ct. 962, 967, 14 sole question decided was that an alleged agreeL. Ed. 1116, where the court again said, in a

ment of partnership was never entered into because to which this appellant was a party: not estopped to claim that the note was given

tween the parties, and that hence plaintiff was "The business of insurance is not commerce." į for services.

[1] But the question here yolved has [Ed. Note.-For other cases, see Judgment, been decided in this state à Northwestern Dec. Dig. $ 533.*] Mutual Life Ins. Co. v. Lewis & Clarke 2. BILLS AND NOTES (8 537*)—ACCEPTANCE OF County, supra, although it does not appear

NOTE-JURY QUESTIONS. from the report of that decision that section cept the same when offered to him held, under

Whether the payee of a note refused to ac8, art. 1, of the federal Constitution, was the evidence, for the jury. in terms invoked by the plaintiff. The court [Ed. Note.-For other cases, see Bills and in that case said: “The Legislature has the Notes, Dec. : $ 537.*] right to prescribe reasonable terms upon 3. ELECTION OF REMEDIES ($ 11*)—MISTAKE. which foreign corporations may do business

Where plaintiff first brought his action for

an accounting alleging that he was a partner in this state. The character, kind, and of defendant, and as evidence that some amount

concur.

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