Page:North Dakota Reports (vol. 48).pdf/349

 J. Bodman, the.defendant issued a policy in which policy it insured the said Fred J. Bodman against injury or death by violent, external, and accidental means.” So, leaving wholly on one side the question of the sufficiency of defendant’s pleading to raise the issue of its limited liability, it seems clear to me that the trial court committed no error in giving the instruction which it gave and in refusing to give the instruction which defendant requested. The instruction which it gave is concededly correct in the absence of evidence on the part of the defendant showing that its liability was limited by virtue of provisions in its articles of incorporation or by-laws. The instruction which defendant requested purported to be based upon, and asked that there be submitted to the jury for consideration, provisions of the by-laws of the defendant corporation which were not in evidence. In other words, the trial court did what the law required it to do—instructed upon the issues which were properly raised by the pleadings and the proof, and refused to instruct with respect to matters for which there was no basis either in the pleadings or in the proof.

I concur in an affirmance of the judgment and the order appealed from. My reasons for doing so are those set forth above. I express no opinion upon any question except those discussed by me in this opinion.

and, JJ., concur.

, C. J. I dissent. In this case there has not been a fair trial on the merits. There is a question as to whether or not the insurance pol- icy is in evidence. The pleadings are dead wrong. There should be a new trial on amended pleadings and a judgment based on real facts, and not on finespun theories. This court should see that the legal procedure is not made a game of skill and chance, and that a decision for $5,000 does not turn on the skill or adroitness of counsel in the making of stipulations or in anything they may do or leave undone.