which were made a part of the contract. They were presumed to know the contents of the paper which they received, and if they had read it they would have observed that it referred to and adopted the provisions of the other instrument. They had the right to demand an inspection of that instrument, and, if inspection had been refused, to de

"Warranted free from confiscation by the | in which were embodied the limitations, and government in the ship's port or ports of discharge." In the third case the stipula. tion was, "Warranted free of capture and seizure in the port of discharge." But it will be observed that while these so-called "warranties" are in their substance exemptions of the insurance companies from liability from the specified causes, they are in form undertakings upon the part of the incline to enter into the contract. sured, and not upon the part of the insurer: and this fact undoubtedly accounts for the use of the terin "warranted,"-a use not in harmony with the generally accepted meaning of the word in modern policies of fire insurance.

It is contended, further, that the property was not directly or indirectly destroyed by order of civil authority; that there was no law authorizing the supervisors of a county to destroy the property of the citizens thereof; and that the property of the plaintiffs in error was destroyed by accident or neg

of the findings of the trial court shows that the fact was established that the fire was started under an order of the supervisors of the county. The Statutes of California of 1897, chap. 277, pp. 465, 466, confer authority upon the supervisors of a county to provide for the destruction of insects injurious to fruit trees, vines, or plants, and to make and enforce local police, sanitary, and other regulations not in conflict with general laws. But whether or not there was lawful authority to start the fire which indirectly caused the damage in this case, there was de facto authority. The order was in fact made, and made by the officers to whom the said powers were given, and thereby the loss occurred. This, we think, excuses the insurance company. Barton v. Home Ins. Co. 42 Mo. 156, 97 Am. Dec. 329. The facts that the loss was the result of a fire started on other property, and that the property of the plaintiff's in error was not ordered to be Lurned, do not render the exemptions of the policy inapplicable. There was but one fire. It was ordered by civil authority. It indirectly caused the loss, and there was no intervening cause. Etna F. Ins. Co. v. Boon, 95 U. S. 117, 24 L. ed. 395; Grand Trunk R. Co. v. Richardson, 91 U. S. 454. 23 L. ed. 356; Krippner v. Biebl, 28 Minn. 139, 9 N. W. 671.

The plaintiffs in error rely upon the decision of the supreme judicial court of Mas-lect, and without their fault. The record sachusetts in Eastern R. Co. v. Relief F. Ins. Co. 98 Mass. 420, but the statute of California, it is to be regretted, differs material ly from that of Massachusetts. The latter adopts the salutary provision that in fire insurance "the conditions of the insurance shall be stated in the body of the policy, and neither the application of the insured, nor the by-laws of the company, shall be considered as a warranty or a part of the contract, except so far as they are incorporated in full into the policy and so appear on its face before the signatures of the officers of the company." The court in that case pointed out the beneficent features of the statute, and said that its purpose was to prevent just claims under policies of insurance against loss by fire from being defeated by the provisions of other documents which the courts had previously been obliged to hold to be binding on the assured, because in law a part of the contract of which he often had no actual knowledge or appreciation. The plaintiffs in error cite this expression of the court as applicable to their case, and advert to the fact that they paid for and accepted the certificate of insurance, which declared in general terms that they were in sured against loss by fire, but which else where referred to another instrument, presumably a blank form of policy, containing certain limitations of the risk assumed. which policy they never saw and the terms of which they never knew. To that contention the law makes this answer: The plain tiffs in error accepted an instrument which contained a reference to another instrument 70 L. R. A.

The judgment of the Circuit Court is affirmed.

Petition for rehearing denied March 3, 1905.

MONTANA SUPREME COURT.

NORTHERN PACIFIC RAILWAY COM- Rep. 1 S. C. 305; Filion v. Dawes, Rap. Jud.

2. General testimony by a person injured by another's negligence, as to his condition, does not waive his statu-Glover, 43 Neb. 737, 62 N. W. 62; Lawrence tory privilege to exclude testimony by his attending physician as to facts discovered in professional attendance upon him.

court, to determine the nature and extent | Keist v. Chicago G. W. R. Co. 110 Iowa, 32, of such injuries.

Union P. R. Co. v. Botsford, 141 U. S. 250, 35 L. ed. 734, 11 Sup. Ct. Rep. 1000; McQuigan v. Delaware, L. & W. R. Co. 129 N. Y. 50, 14 L. R. A. 466, 26 Am. St. Rep. 507, 29 N. E. 235; Illinois C. R. Co. v. Griffin, 25 C. C. A. 413, 53 U. S. App. 22, | 80 Fed. 278; Mills v. Wilmington City R. Co. 1 Marv. (Del.) 269, 40 Atl. 1114; Gulf, C. & S. F. R. Co. v. Pendery, 14 Tex. Civ. App. 60, 36 S. W. 793; Gulf, C. & S. F. R. Co. v. Nelson, 5 Tex. Civ. App. 387, 24 S. W. | 588; Missouri P. R. Co. v. Johnson, 72 Tex. 95, 10 S. W. 325; Cole v. Fall Brook Coal Co. 87 Hun, 584, 34 N. Y. Supp. 572; Stack v. New York, N. H. & H. R. Co. 177 Mass. 155, 52 L. R. A. 328, 83 Am. St. Rep. 269, 58 N. E. 686; McSwyny v. Broadway & S. Ave. R. Co. 27 N. Y. S. R. 363, 7 N. Y. Supp. 456; Peoria, D. & E. R. Co. v. Rice, 144 Ill. 227, 33 N. E. 951; Parker v. Enslow, 102 I11. 272, 40 Am. Rep. 588; Gulf, U. & S. F. R. Co. v. Gibbs (Tex. Civ. App.) 76 S. W. 71; Gulf, | C. & S. F. R. Co. v. Brown (Tex. Civ. App.) 75 S. W. 807; Austin & N. W. R. Co. v. Cluck (Tex. Civ. App.) 73 S. W. 569; Pittsburgh, C. C. & St. L. R. Co. v. Story, 104 Ill. App. 132.

If, however, the right of physical examination does exist at all in law, it is not an absolute right of the defendant, but it rests in the sound discretion of the trial court under the peculiar circumstances of each case; and such discretion will not be reversed upon review, except upon a manifest

abuse of it.

Shepard v. Missouri P. R. Co. 85 Mo. 629, 55 Am. Rep. 390; Hill v. Sedalia, 64 Mo. App. 494; Norton v. St. Louis & H. R. Co. 40 Mo. App. 642; Owens v. Kansas City, St. J. & C. B. R. Co. 95 Mo. 169, 6 Am. St. Rep. 39, 8 S. W. 350; Loyd v. Hannibal & St. J. R. Co. 53 Mo. 509; Kinney v. Springfield, 35 Mo. App. 97; Sidekum v. Wabash, St. L. & P. R. Co. 93 Mo. 400, 3 Am. St. Rep. 549, 4 S. W. 701; Louisville R. Co. v. Hartlege, 25 Ky. L. Rep. 152, 74 S. W. 742; O'Brien v. La Crosse, 99 Wis. 421, 40 L. R. A. 831, 75 N. W. 81; Stuart v. Havens, 17 Neb. 211, 22 N. W. 419.

Plaintiff did not waive the privilege concerning the testimony of her physician.

Citizens' Street R. Co. v. Shepherd, 30 Ind. App. 193, 65 N. E. 765; Munz v. Salt Lake City R. Co. 25 Utah, 220, 70 Pac. 852; Green v. Nebagamain, 113 Wis. 508, 89 N. W. 520; Keast v. Santa Ysabel Gold Min. Co. 136 Cal. 256, 68 Pac. 771; Dunkle v. McAllister, 70 App. Div. 273, 74 N. Y. Supp. 902; Metropolitan Street R. Co. v. Jacobi, 50 C. C. A. 619, 112 Fed. 924; James v. Kansas City, 85 Mo. App. 20; Finnegan v. Sioux City, 112 Iowa, 232, 83 N. W. 907;

81 N. W. 181; Baxter v. Cedar Rapids, 103 Iowa, 599, 72 N. W. 790; Dotton v. Albion, 57 Mich. 575, 24 N. W. 786; Jones v. Brooklyn, B. & W. E. R. Co. 121 N. Y. 683, 24 N. E. 1098; Briesenmeister v. Supreme Lodge K. of P. 81 Mich. 525, 45 N. W. 977; Cooley v. Foltz, 85 Mich. 47, 48 N. W. 176; Kling v. Kansas City, 27 Mo. App. 231; Raymond v. Burlington, C. R. & N. R. Co. 65 Iowa, 152, 21 N. W. 495; Pennsylvania Co. v. Marion, 123 Ind. 415, 7 L. R. A. 687, 18 Am. St. Rep. 330, 23 N. E. 973; Heuston v. Simpson, 115 Ind. 62, 7 Am. St. Rep. 409, 17 N. E. 261; Williams v. Johnson, 112 Ind. 273, 13 N. E. 872; Feeney v. Long Island R. Co. 116 N. Y. 375, 5 L. R. A. 544, 22 N. E. 402.

Holloway, J., delivered the opinion of the court:

In September 1903, Mary May commenced this action against the Northern Pacific Railway Company to recover damages for personal injuries alleged to have been occasioned by the negligence of the agents and employees of the defendant company. The answer of defendant denies all the material allegations of the complaint. Prior to the date set for the trial of the cause the defendant company attempted, unsuccessfully, to induce the plaintiff to submit to a physical examination by surgeons selected by the company, presumably. Immediately prior to the trial the defendant made application to the court for an order compelling the plaintiff to submit to a physical examination by physicians and surgeons appointed by the court. This application was denied. The cause having been brought on for trial, and the plaintiff having testified as to the cause of her injuries and their nature and extent, and having produced Drs. Brethour and Buchen, her attending physicians, as witnesses in her behalf upon cross-exami

nation admitted that one Dr. McGrath had also attended her in the early stages of her illness as her physician. The defendant in its behalf called Dr. McGrath, and asked him

to state in what condition he found the

plaintiff when he called upon her. This was

objected to on the ground that it called for testimony from a physician concerning matters discovered by him while acting as physician for the plaintiff, and the giving of such testimony by Dr. McGrath would violate the confidential relation of physician and patient, contrary to the provisions of $3163 of the Code of Civil Procedure. This objection was sustained, and exception taken. The jury returned a verdict in favor of the plaintiff, and from the judgment entered thereon, and from an order denying

defendant's motion for a new trial, it ap- this view. In the opening paragraph of the pealed.

13 Okla. 121, 74 Pac. 107, by the court of | er, 156 Ind. 418, 54 L. R. A. 396, 83 Am. St. civil appeals of Texas in Austin & N. W. R. | Rep. 200, 60 N. E. 271, and, so far as we are Co. v. Cluck (Tex. Civ. App.) 73 S. W. 569, | aware the last decision from that court asand by the supreme court of Massachusetts serts the power. Belt Electric Line Co. v. in Stack v. New York, N. H. & H. R. Co. 177 | Allen is affirmed in Belle of Nelson DistillMass. 155, 52 L. R. A. 328, 83 Am. St. Rep. ing Co. v. Riggs, 104 Ky. 1, 45 S. W. 99, and 269, 58 N. E. 686. in Louisville & N. R. Co. v. Simpson, 111 Ky. 754, 64 S. W. 733. In Wanek v. Winona, 78 Minn. 98, 46 L. R. A. 448, 79 Am. St. Rep. 354, 80 N. W. 851, decided in 1899 the dictum in the Hatfield Case is declared to be the law in Minnesota. Parker v. Enslow is followed in Peoria, D. & E. R. Co. v. Rice, 144 Ill. 227, 33 N. E. 951, and in Pittsburgh, C. C. & St. L. R. Co. v. Story, 104 Ill. App. 132. In International & G. N. R. Co. v. Underwood, 64 Tex. 463, and Missouri P. R. Co. v. Johnson, 72 Tex. 95, 10 S. W. 325, the court, without deciding, intimated that the trial courts in Texas had the power to compel such examination; but in Austin & N. W. R. Co. v. Cluck (Tex. Civ. App.) 73 S. W. 569, decided in 1903, the question is squarely met and decided, and the authority denied. This last case is affirmed, and the doctrine reannounced upon appeal to the supreme court of Texas, in 97 Tex. 172, 64 L. R. A. 494, 104 Am. St. Rep. 863, 77 S. W. 403. The question has been before the supreme court of Nebraska, but not decided, in Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578, 49 Am. Rep. 724, 20 N. W. 860, in Stuart v. Havens, 17 Neb. 211, 22 N. W. 419; Ellsworth v. Fairbury, 41 Neb. 881, 60 N. W. 336, and Chadron v. Glover, 43 Neb. 732, 62 N. W. 62. The syllabus to the decision in Mills v. Wilmington City R. Co. 1 Marv. (Del.) 269, 40 Atl. 1114, announces that the superior court of Delaware denies the power, but there is nothing in the body of the opinion with reference to the question. The case of Carrico v. West Virginia C. & P. R. Co. 39 W. Va. 86, 24 L. R. A. 50, 19 S. E. 571, is frequently cited in these opinions, but the question is not decided by the West Virginia court at all. The Federal and territorial courts have followed the decision in the Botsford Case, in Illinois C. R. Co. v. Griffin, 25 C. C. A. 413, 53 U. S. App. 22, 80 Fed. 278, and in the Oklahoma case cited.

The foregoing review shows the decisions of courus upon the first presentation of this question to them. The case of Walsh v. Sayre was followed in Shaw v. Van Rensselaer; but in 1891 the question came before the court of appeals of New York in McQuigan v. Delaware, L. & W. R. Co. 129 N. | Y. 50, 14 L. R. A. 466, 26 Am. St. Rep. 507, 29 N. E. 235, and Walsh v. Sayre and Shaw v. Van Rensselaer were overruled. The McQuigan Case was followed in Cole v. Fall | Brook Coal Co. 159 N. Y. 59, 53 N. E. 670. decided in 1899. The legislature of New York, however, circumvented the effect of these last decisions by enacting a statute di- | rectly conferring upon trial courts the power to make and enforce such an order. In Shepard v. Missouri P. R. Co. 85 Mo. 629, 55 Am. Rep. 390, decided in 1885, a view contrary to that expressed in Loyd's Case is intimated by the supreme court of Missouri, and in Sidekum v. Wabash, St. L. & P. R. Co. 93 Mo. 400, 3 Am. St. Rep. 549, 4 S. W. 701, a decision was rendered which had the effect of directly reversing the Loyd Case; and the Sidekum Case was followed in Owens v. Kansas City, St. J. & C. B. R. Co. 95 Mo. 169, 6 Am. St. Rep. 39, 8 S. W. 350. The Schroeder Case was followed by the supreme court of Iowa in Hall v. Manson, 99 Iowa, 698, 34 L. R. A. 207, 68 N. W. 922, and Atchison, T. & S. F. R. Co. v. Thul was approved and followed in Ottawa v. Gilliland, 63 Kan. 165, 88 Am. St. Rep. 232, 65 Pac. 252, and again in Atchison, T. & S. F. R. Co. v. Palmore, 68 Kan. 545, 64 L. R. A. 90, 75 Pac. 509. Wnite v. Milwaukee City R. Co. was followed by the supreme court of Wisconsin in O'Brien v. LaCrosse, 99 Wis. 421, 40 L. R. A. 831, 75 N. W. 81. Sibley v. Smith, 46 Ark. 275, 55 Am. Rep. 584. was followed in St. Louis S. W. R. Co. v. Dobbins 60 Ark. 481, 30 S. W. 887, 31 S. W. 147. The supreme court of Indiana | has been most uncertain in its treatment of the question. Kern v. Bridwell, 119 Ind. 226, 12 Am. St. Rep. 409, 21 N. E. 664, was decided in May, 1889; but in November of the same year, in Hess v. Lowrey, 122 Ind. 225, 7 L. R. A. 90, 17 Am. St. Rep. 355, 23 N. E. 156, a contrary doctrine is an- | Iowa, Indiana, Kansas, Kentucky, Michinounced. In 1891, in Pennsylvania Co. v. Newmeyer, 129 Ind. 401, 28 N. E. 860, the announcement in Hess v. Lowrey, is pronounced dictum, and the authority is again distinctly denied. But the Newmeyer Case is distinctly reversed in South Bend v. Turn-legislative enactment.

If the last announcements of these several courts may be taken to indicate the law in their respective states, a review of the decisions discloses that the power of trial courts to compel such examination is asserted in Alabama, Arkansas, Georgia,

gan, Minnesota, Missouri, North Dakota, Washington, and Wisconsin, and denied in the Federal courts, and in Illinois, Massachusetts, and Texas, and was denied in New York until specifically granted by direct