Page:North Dakota Reports (vol. 48).pdf/348

 the contents of the articles of incorporation and of the by-laws, this statement and caution would hardly have been necessary.

In the circumstances, how can it be said that the trial court erred in not considering the articles of incorporation and the by-laws of the defendant corporation in the instructions to the jury? How can it be said that the trial court in admitting the certificate of insurance must, for the purposes of the submission of the case to the. jury, be deemed to have admitted the certificate, among others, for the purpose of proving the articles of incorporation and the by-laws? There is nothing obscure about the rules of evidence relating to the mode of proving the contents of the articles of incorporation and the by-laws of a corporation. Aside from the applicable statutory provisions, the various legal treatises deal fully with the subject. See 3 Ency. Evidence, 657; Jones’ Commentaries on Evidence. §§ 200a, 522; Bacon, Life & Accident Insurance (4th ed.) § 103; Fletcher’s Ency. of Corporations, § 488. See, also, §§ 7909, 7919, subd. 7, C. L. 1913.

In the case at bar the defendant was permitted to introduce the certificate of insurance in evidence. This constituted an essential foundation for the introduction of proof as to the contents of the articles of incorporation and of the by-laws. Whether defendant had or desired to present such proof was a matter for it to determine. It failed to present such proof. As the trial court said in a memorandum opinion filed with the order denying a new trial in this case:

“As the matter now stands, there is no proof of the existence or contents of the by-laws.”

This, in my opinion, correctly states the condition as it existed at the time when the trial court instructed the jury; and, of course, the instructions given were properly limited to the issues raised by the pleadings and the proof. As already stated under the pleadings, only one issue was preserved, namely, whether the death of the insured was occasioned by accidental means, or whether such death was occasioned by “the willful and premeditated self-destruction of the said deceased with suicidal intent.” Upon this issue the court had before it the policy of insurance, which specifically referred to the articles of incorporation and the by-laws of the corporation for the other elements of the contract. No attempt was made to prove the contents of such articles or by-laws. There was, however, not only the admission in the defendant’s answer, but the stipulation made at the commencement of the trial that “during the lifetime of Fred