Superior v. Allouez Bay Dock Co. 166 Wis. 76. For the appellant Douglas County the cause was submitted on the brief of Archibald McKay of Superior. For the respondent there was a brief by J. A. Murphy, attorney, and E. C. Lindley, of counsel, both of Superior, and a reply brief and oral argument by Mr. Murphy. The following opinion was filed May 15, 1917: WINSLOW, C. J. As indicated in the foregoing statement there are two fundamental questions in the case, viz.: (1) Was the tax in question a burden upon interstate commerce? and (2) Was the defendant's property exempted from income taxation under the statutes of the state because it was railroad property? 1. It must be admitted that the defendant's income arose entirely from interstate commerce business. The ore which it handled was all consigned from the Minnesota mines to lower lake ports and simply passed through the defendant's docks in its transit, the defendant receiving a fixed charge for its part in facilitating the continuous interstate voyage, namely, the transferring of the ore from the land carrier to the water carrier. Is the levying of an income tax measured by the income so derived a burden upon interstate commerce? The question is not free from difficulty, but we think it must be answered in the negative. Income taxation is not taxation of property, but is more nearly akin to taxes levied upon privileges or occupations. Its amount may be measured by the receipts of a business, but it is not in any true sense a tax upon the business itself. The subject is covered, as it seems to us, by the decisions of this court in the cases of United States G. Co. v. Oak Creek, 161 Wis. 211, 153 N. W. 241, and Northwestern Mut. L. Ins. Co. v. State, 163 Wis. 484, 155 N. W. 609, 158 N. W. 328, and the cases therein cited. 2. Sec. 1087m-5, Stats., provides for the exemption of certain incomes from income taxation, among which are Superior v. Allouez Bay Dock Co. 166 Wis. 76. named in sub. 3 of the section "Incomes derived from property and privileges by persons now required by law to pay taxes or license fees directly into the treasury of the state in lieu of taxes." Railroad companies are required by law to pay taxes directly into the state treasury, and the defendant claims and the trial court held that it was to be considered a railroad company for the purposes of taxation and hence not subject. to income taxation. We can see no escape from the argument. The law governing the taxation of public utilities provides (sub. (2), sec. 51.02, Stats.) that "Any person. or corporation owning and operating a railroad, owning or operating any station, depot, track, terminal, or bridge, in this state, for railroad purposes . . shall be deemed a railroad company." or The ore dock under consideration here was unquestionably a terminal within the meaning of that section. Minneapolis, St. P. & S. S. M. R. Co. v. Douglas Co. 159 Wis. 408, 150 N. W. 422. It was used exclusively as a railroad terminal and hence should have been assessed and taxed as a railroad. It is said that it cannot be so taxed because the defendant corporation was not a railroad corporation, but a corporation organized for dock and warehousing purposes, and hence that it would be violating the law if it attempted to do a railroad business. The argument is fallacious. When a railroad operates a terminal itself, or when a terminal is owned by a third person or corporation and operated solely as a terminal for the railroad, it is as truly a part of the railroad as its trains, and its business as truly a part of the railroad business as the operation of the trains. No reason is perceived why, for the purposes of taxation, such property should not be classified as railroad property and subjected to the same methods of taxation. A warehousing or dock company which operates such a terminal does not thereby violate its charter or commit any act ultra vires; it does the business which its VOL. 166-6 Superior v. Allouez Bay Dock Co. 166 Wis. 76. charter authorizes it to do, but the state, perceiving that this business is, under such circumstances, simply a branch of the railroad business, directs that it be taxed in the same class with railroad companies. This was the conclusion of the trial court, and must be approved. The court limited the costs to the sum of $25 and disbursements under that clause of the statutes which provides that in actions at law on contract the costs, exclusive of disbursements, shall not exceed $25. The defendant appeals from this ruling on the ground that an action to recover unpaid taxes is not an action upon contract, or, in other words, that an unpaid tax is not a debt or a contract. This abstract proposition may be conceded, but we do not regard it as controlling. Our statute which authorizes the bringing of the action provides that it shall be "an action of debt." Sec. 1107a, Stats. An action of debt at common law arose only to enforce contract rights. The legislative intention that any recovery in such an action should be a recovery as upon contract seems plain, and there seems no reason why effect should not be given to that intention. By the Court. The judgment and order appealed from are affirmed, the defendant to recover one bill of costs. KERWIN and VINJE, JJ., dissent. A motion for a rehearing was denied, with $25 costs, on June 28, 1917. McGinty v. Brotherhood of Railway Trainmen, 166 Wis. 83. MCGINTY, Respondent, vs. BROTHERHOOD OF RAILWAY TRAINMEN, Appellant. May 15-June 28, 1917. Life insurance: Forfeiture: Breach of warranties in application: Pleading: Amendment of answer: False representations: Connivance with examining physician: Estoppel: Evidence: Physicians: Privilege: Waiver: Admissions: Competency of witnesses: Officer of local lodge: Death certificate: Contradiction: Cause of death: Declarations by physician: Instructions to jury: Burden of proof. 1. Where, in an action on a life insurance policy, the answer alleged that the assured had, in his application, wilfully and falsely warranted that he had never had certain specific diseases, it was not an abuse of discretion, after the action had been pending nine months and had once been continued for a term, to refuse leave to amend the answer by setting up a breach of other warranties in the application that the assured had never had any of the numerous diseases therein specified. 2. In an action on a life insurance policy or certificate the defendant company or association may show that false warranties in the application of the assured were made with the connivance of the medical examiner. 3. Under sec. 4202s, Stats., if the certificate or report of the medical examiner of a life insurance company, falsely stating that an applicant was a fit subject for insurance, was made by connivance with the applicant, the company is not estopped to plead and prove such falsity in an action on the policy. 4. Sec. 4075, Stats., prohibiting disclosure by a physician of information obtained by him for the purpose of treating a patient, does not apply to information obtained by the medical examiner of a life insurance company from an applicant for insurance who had ceased to be his patient and whose visit to him was as such applicant and not for the purpose of treatment. 5. Where such applicant, of his own volition and at a time when he was not a patient, obtained the statement or certificate of the examining physician who, as the applicant knew, had knowledge as to his former health and condition, and then joined with the physician in making material representations to the insurer, upon which the policy was issued, he waived any privilege under said sec. 4075, Stats.; and the physician should have been permitted to testify, in contradiction of the representation so made, that he had previously treated the applicant for a venereal disease and not for la grippe. 6. Admissions of the assured, not part of the res gesta, are not ad McGinty v. Brotherhood of Railway Trainmen, 166 Wis. 83. missible against the beneficiary to prove the falsity of statements in the application. 7. But admissions made by the beneficiary, showing knowledge on her part as to the health and condition of the assured at or prior to the making of the application for the insurance, are admissible against her to show the falsity of statements in such application. 8. The mere fact that a person was an officer of a subordinate lodge of a fraternal benefit society did not make him a stockholder or officer of the corporation itself within the meaning of sec. 4069, Stats., or preclude him from testifying as to conversations between himself and the beneficiary in a policy, so far as they tended to show admissions by her as to her knowledge of the health and condition of the assured at the time of his application for insurance. 9. "Presumptive evidence," in sec. 4160, Stats., means the same as prima facie evidence in sec. 1022-12. 10. A physician's certificate of death being a matter of public record, its contents are not to be treated as privileged; being but prima facie evidence of the facts stated therein, it is subject to contradiction by proof as to the real facts concerning the death; and the physician who made it may testify as to such facts. 11. In an action by a mother, as beneficiary, upon a policy of insurance on the life of her son who, in his application, had stated that his father never had had any cancerous disease, admissions by plaintiff showing her knowledge that the father had died of cancer were not mere hearsay and were admissible against her as tending to show a material misrepresentation in the application. 12. Correspondence between the examining physician and the insurer relative to the facts involved in alleged mispresentations ' in an application for insurance, was not admissible against the beneficiary. 13. An instruction to the jury to the effect that if a question "is left in doubt and uncertainty" the jury should answer it against the party upon whom the burden of proof rested, is criticised. APPEAL from a judgment of the circuit court for Juneau county: JAMES O'NEILL, Circuit Judge. Reversed. This action was brought by the plaintiff, beneficiary and mother of John McGinty, on a policy of life insurance issued by defendant. John McGinty died February 25, 1913. His written application for this insurance, together with the report of an |