“The burden is on . . . the insurer to establish that the claim is specifically 26 excluded.”
How later courts described this case
- “The burden is on . . . the insurer to establish that the claim is specifically 26 excluded.”
- “[A]n alteration by a stranger to the instrument or an agent acting 22 beyond the scope of his authority is a mere spoliation and does not affect the right of the 23 parties to enforce the instrument as it was originally written.”
Written by the judges who cited it.
The opinion
Rhodes, J.,
also-concurring specially:
I concur in the judgment for the reasons expressed by the Chief Justice; but I am unable to concur with Mr. Justice McKinstby in the conclusions announced upon the second and third grounds discussed by him. Some of the propositions laid down by him might, perhaps, with propriety, have been accepted and applied at the commencement of the judicial history of the State as sound rules and maxims in the construction of our Constitution, and others, *41 perhaps, are deserving of a place in the instrument itself; but at an early day a different construction was adopted in respect to the power which the Legislature might exercise over municipal corporations, and in respect to persons and property within their territorial limits, until now many and valuable interests are held which had their origin in and are now dependent on such construction, and in my judgment that construction ought not to be changed except upon more cogent reasons than are presented in this case. I am not prepared at this time to enter upon a discussion of these important questions, but it is not improper to say that there are no reasons upon which it should be held that the power of the Legislature over the matters of “assessment” within municipal corporations are limited, that will not equally apply in respect to the power of the Legislature over the matters of borrowing money, contracting debts, or taxation for municipal purposes, mentioned in section thirty-seven, Article IV of the Constitution. The grounds upon which the authority is denied to the Legislature to direct a particular assessment within a municipal corporation to be levied, would also prohibit the Legislature from requiring that a particular debt should be contracted, by the municipality, or a particular tax levied for municipal purposes. If a change in these important provisions is necessary or desirable, it should, in my opinion, be made in the organic law itself, and not by means of a change in its construction.