Nat'l Bank v. Ins. Co., 95 U.S. 673

V0L v- 43 p. 674“ What is the cash value of the buildings, aside from hand and water power ? What is the cash value of the machinery ? ” The answer was: “ $15,000, building; $15,000, machinery.”

™ t0 th~ed that, in answerS’ e was assuming, or was expected to assume, the p. 676strict obligations which the law attaches to a warranty. There is no intimation anywhere in that instrument that the exact truth of the answers was a condition precedent, either to the consideration of the application or to the issuing of a policy. On the contrary, the application contains the covenant of the assured that he had in that instrument made a just, full, and true exposition of all material facts and circumstances in regard to the condition, situation, value, and risk of the property, so far as known to him. The taking of that covenant, at the threshold of the negotiations, was, in effect, an assurance that a frank statement of all such material facts as were within the knowledge of the applicant would meet the requirements of the company. It was a covenant of good faith on the part of the assured, — nothing more; and, so far as it related to the value of the property, was not broken, unless, the estimates by the assured were intentionally excessive. If the case turned wholly upon the construction to be given to the application, it is quite clear that the overvaluation of the property would not defeat a recovery upon the written agreement, since the assured, by the special finding, is acquitted of any purpose to defraud the company. That is equivalent to saying that the assured did not withhold any material fact within his knowledge concerning the condition, situation, value, or risk of the property.

It will be observed, from an examination of the questions propounded to the assured, that, among other things, he was asked whether the building was of stone, brick, or wood; how the premises were warmed; what materials were used for lighting them; whether a watchman was kept during the night; w at amount of insurance was already on the property ; whether it was mortgaged, &c. These and similar questions refer to matters of which the assured had actual knowledge, or about which he might, with propriety, be required to speak with perect accuracy. They are matters capable of precise ascertainment, and in no sense depending upon estimate, opinion, or mere probability., But his situation and duty were wholly difnt when required to state the cash value of his property7. He was required to give its “estimated value.” His answers oncermng such value were, in one sense, and, perhaps, in every just sense, only the expression of an opinion. The ordi• ^5 Va^ue ProPerty is the price it will command 6 ^ar °®ere^ f°r sale. But that test cannot, in the y a ure of the case, be applied at the time application is p. 678made for insurance. Men may honestly differ about the value of property, or as to what it will bring in the market; and such differences are often very marked among those whose special business it is to buy and sell property of all kinds. The assured could do no more than estimate such value; and that, it, seems, was all that he was required to do in this case. His duty was to deal fairly with the company in making such estimate. The special finding shows that he discharged that duty and observed good faith. We shall not presume that the company, after requiring the assured in his application to give the “ estimated value,” and then to covenant that he had stated all material facts in regard to such value, so far as known to him, and after carrying that covenant, by express words, into the written contract, intended to abandon the theory upon which it sought the contract, and make the absolute correctness of such estimated value a condition precedent to any insurance whatever. The application, with its covenant and stipulations, having been made a part of the policy, that presumption cannot be indulged without imputing to the company a purpose, by studied intricacy or an ingenious framing of the policy, to entrap the assured into incurring obligations which, perhaps, he had no thought of assuming.

e nion and Planters Bank of Memphis is a banking cor-ion, oing business at Memphis, Shelby County, Tennessee orgamzed under a charter granted by the General Assembly tpn+i? March 20, 1858’ and amended Feb. 12, 1869, the sec ion of which provides, that “ said company shall pay p. 680to the State an annual tax of one-half of one per cent on each share of the capital stock subscribed, which shall be in lieu of all other taxes.”

T CeU^ °n each share of the capital stock subscribed winch sW1 b« “ lieu of all other taxes.” the rib. ? Tennessee and the county of Shelby claiming of th. ’“ii • 46 MTe°Ue laws of the State- to tax the stock plaintiff m error, assessed and taxed it for the year 1872. was forT8688^ at va^ue' The tax imposed by the State y cents on the 8100, making the State tax 860. The p. 682county tax was SI.20 on the $100, making the county tax $180.

«Ball. 105, and Broom’s Legal Maxims, 34. of at an early period that it was the prerogative sam corPorations ; but he could not grant the one Powers to a second corporation while the prior alte U S1S^’ and’ un^ess the power was reserved, he could not ’ amen, or annul a charter without the consent of the p. 684corporate body to which it belonged. To the extent of such assent amendments were effectual, and no further. Dartmouth College v. Woodward, supra; The King n. Passmore, 3 T. R. 199, and the cases cited.

ase turns upon the construction to be given to the p. 686tenth section of the charter of the bank. Our attention has been called to nothing else.

Real estate belonging to the corporation and necessary p. 688for its business. Wilmington Railroad v. Reid, supra; The Bank of Cape Fear v. Edwards, 5 Ired. (N. C.) L. 516.

There is no reservation or discrimination as o p. 689tax.” All are alike included. Such is the natural effect of the language used. The most subtle casuistry to the contrary is unavailing. Under such a contract between individuals, a doubt could not have existed. It may as well be said the power is reserved to tax any thing else, as further to tax the shares. We cannot so hold, without interpolating into the clause a term which it does not contain. This we may not do. Our duty is to enforce the contract as we find it, and not to make a new one. If it was intended to make the exception claimed from the universality of the exemption as expressed, it would have been easy to say so, and it is fairly to be presumed this would have been done. In the absence of this expression, we can find no evidence of such an intent. Our view is fully sustained by the leading authorities upon the subject. We will refer to a few of them.

^■e case before us, the charter tax is upon the shares. VUL. v. .. x p. 690The tax complained of is a further tax on those shares. Without the phrase, “ in lieu of all other taxes,” the parallelism is complete. A further tax could no more be imposed upon the shares in one case than upon the capital stock in the other. The same negative considerations apply to both.

Shareh°lders of stock in the corporation. The capital °C ’ an^ the shares of that stock in the hands of »stockholders, ifferent properties, and consequently distinct subjects for tio ' exemption of the one is not of itself an exempn °. other, nor is the taxation of the one a tax upon the er in such a sense as to interfere with any exemption the p. 692latter may have from taxation. In The Delaware Railroad Tax, 18 Wall. 206, a clause in a charter providing that a company should, in addition to other taxes, pay to the treasurer of the State, for its use, one-fourth of one per cent upon the actual cash value of every share of its capital stock, was held to be not a tax upon the shares of the individual stockholders, but a tax on the corporation, determined by a rule which, though arbitrary, was yet approximately just. So, in Van Allen v. The Assessors, 3 id. 573, this court said a tax on shares of stock is not a tax on the capital of a bank, and that the shares are a distinct, independent interest or property held by the stockholder, and, like any other property that may belong to him, subject to taxation.

stantial difference in the extent of the exemption offere in these several charters, though there is some difference m e phraseology. But I think that the benefit of the exemption in each case for the corporation. It was not intended for e dividual stockholder. The legislature were dealing wi proposed corporations. The corporate power grante an immunities allowed were to the corporations, and t e tract found in the charter was with the artificial being c p. 693rather than with the natural persons who might have an interest in them. The language of the acts is, the “ institution ” shall pay, or the “company” shall pay, an annual tax, which shall he in lieu of all other taxes. It was, therefore, the institutions or corporations the legislature had in view, alike in imposing the tax and granting the immunity, and not the natural persons who might happen to own shares of stock in the corporations. It is true that in several of the charters the corporations are required to pay a tax on each share of capital stock subscribed, and in one upon the amount of capital stock paid in. Hence it has been argued the legislature had shares in view; and from this the further inference is sought to be drawn, that the purpose was to tax alike the corporations and the stockholders, and to exempt both from all other taxation. Such a construction is, however, directly in conflict with the ruling in The Delaware Railroad Tax, supra, and with the expressed declaration that the company or institution shall pay the tax to the State, which was to be in lieu of other taxation. Besides, the reference to each share of capital stock subscribed is easily accounted for, without holding that the shareholder, as well as the companies, were intended to be exempted. The amount of capital stock authorized for each company was fixed y its charter, and divided into shares. It was quite possible that the whole stock authorized might not be subscribed. In view of this, the companies were required to pay a tax, not upon eir entire authorized capital, but to the extent of the shares su sen ed. If such was the intent of the legislature, reference o t e shares was necessary, and it raises no implication that e tax imposed was designed to be for the individual interest e s areholders in the corporations, and that the exemption irom further taxation was granted to them.

?xpress terms between the State and a corporation, to p § proPerty and franchises from taxation, shall, by stoolrh and exempt the property of individual is entir which, for the purposes of taxation, thero ' 6 y 1 erent fr°m that of the corporation. I think imnlicatin° SUC^ a construction ; none for any such plication. If, however, I am mistaken, it is certainly true p. 694that such a construction is not necessary. The words of the charter granting the exemption are fully satisfied by confining their operation to the corporations themselves; and I do not feel at liberty to give them a broader significance, in view of the settled rule I have noticed, that a State’s right of taxation will not be held to have been surrendered unless the intention to surrender is manifested in words too plain to be mistaken. Had the legislature intended to extend the exemption beyond the companies themselves, it would have been easy to place the intent beyond doubt, by simply saying the tax should be in lieu of all other taxation of the company or its stockholders. But nothing like this, or equivalent to it, is found in the charter.

Our jurisdiction cannot be invoked until the final judgment below has been rendered; and we cannot open the record to look for errors until jurisdiction has been established. The court below retains full control of a cause until final judgment has been entered ; and it follows that, if for any reason a judginent is given against a defendant in a case involving the plaintiff’s cause of action alone, unaffected by counter-claim or set-off, for a sum less than our jurisdictional amount, we have no power, at the instance of the defendant, to correct errors that may have een committed in settling the amount. We can only look at a verdict through the record; and, if the record is closed to Us, so necessarily must be the verdict. In this case, therefore, we are precluded from inquiry into the propriety of allowing the ver ict to be reduced before judgment was entered upon it. Necessarily, verdicts are, to some extent, subject to the control t e court. It is not unusual for a court to announce that a new trial will be granted unless a part of a verdict shall be 1 ted, and to enter judgment upon the reduced amount if i p suggestion is followed. All such matters may properly be tri 1 * judicial discretion of the court in which the is ad, and errors committed under this power can only rected by an appellate court in the same manner that p. 696other errors are. Undoubtedly, the trial court may refuse to permit a verdict to be reduced by a plaintiff upon his own motion; and, if the object of the reduction is to deprive an appellate court of jurisdiction in a meritorious case, it is to be presumed the trial court will not allow it to be done. If, however, the reduction is permitted, the errors in the record will be shut out from our re-examination in cases where our jurisdiction depends upon the amount in controversy. In Sampson v. Welch, 24 How. 207, we refused to take jurisdiction upon an appeal in admiralty, where a decree had been rendered against a respondent for more than $2,000, with leave to him, if he chose, to set off an amount due him for freight, and he afterwards, by the set-off, reduced the decree below our jurisdictional amount, notwithstanding, in signifying his election to make the set-off, he expressly stated in a writing, which appeared in the record, that he did not thereby waive his right of appeal.

hls was an action against the Chicago, Rock Island, and p. 698Pacific Railroad Company, brought under a statute of Missouri, which subjects a corporation to a penalty of $5,000 where death is caused by an injury resulting from “ the negligence, unskilfulness, or criminal intent ” of any of its officers, agents, servants, or employés, whilst running, conducting, or managing a locomotive, car, or train of cars. In this case, the deceased was the wife of the plaintiff; her death was caused by injuries inflicted by the defendant’s locomotive whilst the train was passing through the village of Cameron in that State. The defendant had two tracks, one main and the other a side track, which extended through a considerable portion of the village, and passed south of Second Street. The tracks were separated from each other by only a few feet. The house at which the deceased resided was north of Second Street and east of Harris Street, which the tracks crossed. South of the two tracks, and about ninety feet east from Harris Street, was situated a building belonging to the company, called the section-house, near which was a well of water. The building and well were on the com pany’s right of way. The train was due, on the evening when the accident occurred, at half-past six, and it entered the village from the west. At that time a gravel-train had been switc e on the side track east of Harris Street, between the section house and the depot. Freight-cars were also standing on e side track west of, but near, Harris Street. There was a p an crossing over the railway at Harris Street. When cars w not standing on the tracks there was nothing to preven passing in a direct or nearly direct line from the house o deceased to the section-house. Persons, in going to from that house, sometimes passed the road at the pu i ing, and sometimes on the right of way of the company Harris Street. The evidence disclosed by the record r to the accident only shows that at about hal -pas six evening of the 13th of March, 1872, the deceased took a p^ upon her arm and left her house, and, it is suppose, the well near the section-house. She was seen y as she left, and by the engineer only a few secon s was struck by the locomotive. It does not appear seen by any other person after leaving t e ou was injured. When discovered by the engineer, the locom p. 699was within four feet of her. She was then on the main track of the railway, about ninety feet east of Harris Street, and was apparently passing from the track south. She was struck by the extreme end of the beam of timber running across the engine, known as the bumper, and was thrown into a ditch about ten feet from the section-house. The engineer testified, that when he discovered her it was impossible to stop the train so as to avoid striking her. She died within an hour after receiving the injury.

^phia # Reading Railroad Co. v. Hummell, 44 Pa. St. p. 700375; Finlayson v. Railroad Company, 1 Dill. 579; Illinois Central Railroad Co. v. Godfrey, 71 Ill. 501.

the positions most advantageous for the plaintiff be p. 702assumed as correct, that the train was moving at an unusual rate of speed, its bell not rung, and its whistle not sounded, it is still difficult to see on what ground the accident can be attributed solely to the “ negligence, unskilfulness, or criminal intent ” of the defendant’s engineer. Had the train been moving at an ordinary rate of speed, it would have been impossible for him to stop the engine when within four feet of the deceased. And she was at the time on the private right-of-way of the company, where she had no right to be. But, aside from this fact, the failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employés in these particulars was no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and to see the train which was coming. If she omitted to use. them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet undertook to cross the trac, instead of waiting for the train to pass, and was injured, t e consequences of her mistake and temerity cannot be cast upon the defendant. No railroad company can be held for a fai ure of experiments of that kind. If one chooses, in such a position, to take risks, he must bear the possible consequences.of fa nre. Upon the facts disclosed by the undisputed evidence in t e ca we cannot see any ground for a recovery by the plainti. 0 even a plausible pretext for the verdict can be suggeste, un we wander from the evidence into the region of conjecture a speculation. Under these circumstances, the court wou have erred had it instructed the jury, as requested, to ren verdict for the defendant. ,