Woodson, P. J., dissenting in part.
Appeal from Circuit Court, Pike County; J. H. Eby, Judge.
Action by T. J. Nalley against the Home Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
J. D. Hostetter, of Bowling Green, and Fyke & Snider, of Kansas City, for appellant. Pearson & Pearson, of Louisiana, Mo., for respondent.
GRAVES, J.
This is an action upon what is ordinarily called a "cyclone or tornado policy" of insurance, wherein the plaintiff seeks to recover $2,000 for damages to his residence in Pike county, Mo. The petition is in usual form and unchallenged here; therefore further particulars of this pleading may be omitted. The crux of the case lies in the answer and other matters injected in the course of the trial. The points in the answer can best be stated by the terms of that pleading. Such answer is as follows:
The defendant for answer to plaintiff's petition says:
"First. It admits that it is licensed to do business in the state of Missouri, and has engaged in doing the windstorm, cyclone, and tornado business.
"Second. It admits that on the 10th of January, 1906, it made the policy of insurance mentioned in the petition.
"Third. Further answering defendant says it is provided in said policy as follows: `In case of loss the assured shall give this company immediate written notice thereof at the office of the Western Farm Department of the company at Chicago, Ill., and within 60 days thereafter shall render to such office, under oath, a particular and detailed statement and proof of the actual cash value at the time of the loss of any property or articles upon which loss or damage is claimed.' Defendant alleges that if plaintiff sustained any loss by windstorm, cyclone, or tornado on the 22d day of November, 1908, he did not give to defendant immediate notice thereof, and never did at any time, and never has furnished defendant under oath a particular and detailed statement and proof of such loss as required by the terms of said policy, by reason whereof plaintiff is not entitled to recover.
"Further answering defendant denies each and every allegation, matter, fact, and thing in the petition alleged not herein expressly admitted, and having fully answered asks to go hence with its costs."
Reply was in conventional form. Plaintiff had a verdict for $1,750 and interest, and from a judgment thereon the defendant has appealed.
The case reached this court by reason of a constitutional question which first arose upon the giving of an instruction for the plaintiff, and later pressed in the motion for new trial thus: "The following instruction given by the court at the request of the plaintiff
to wit: `The court instructs the jury that the defendant insurance company is forbidden by the law to insure any property for more than three-fourths of its value at the time of issuing its policy of insurance on the property therein described; that the sum insured on the one and two story brick and frame dwelling house described in defendant's policy of insurance sued on is $2,000; that for the purpose of this case the law fixes the value of said property at the time of issuing said policy of insurance at the sum of $2,666.66, and defendant cannot now deny that the said one and two story brick and frame dwelling and foundation was at the time of issuing said policy of the said value of $2,666.66' — is erroneous, prejudicial, and misleading for the reason that there is no law so fixing the value of said property. That is, the court bases said instruction on section 7979 of the Revised Statutes of the state of Missouri for the year 1899; said instruction is erroneous because said section is not applicable to companies writing windstorm, cyclone or tornado policies, and for the further reason that said act, which was passed by the Legislature of the state of Missouri in 1895 (Session Acts 1895, p. 194), is violative of section 28 of article 4 of the Constitution of the state of Missouri in that said bill or act as passed by the Legislature aforesaid contains more than one subject, and all the subjects contained in said act, are not clearly expressed in its title, and said act attempts to delegate legislative functions to insurance companies and the Insurance Commissioner of the state of Missouri." Such is a fair outline of the case, leaving to the opinion the further details both of evidence and pleadings.
1. The constitutionality of section 7030, R. S. 1909, is challenged by the defendant. This section comes from the act of 1895. Laws of 1895, p. 194. The title to that act reads: "An act relating to fire insurance and form of policies." The body of the act, which contained but one section, is as follows: "Section 1. Fire insurance companies doing business in the state of Missouri are hereby required, on or before the first day of January of the year 1896, to agree upon a uniform form of policy for use by them in the state of Missouri, covering the responsibilities of the companies as well as the duties of the assured, to be classed and known as the Missouri fire insurance policy. Said policy shall be approved of by the insurance commissioner of this state, and after the first day of January, A. D. 1896, no policy shall be issued in this state carrying risks by fire or lightning by any company which does not embrace the form made and approved of as herein directed. To all such policies shall be attached a blank notice, with the address of the company fully printed thereon, to be used by the assured in case of loss in notifying the company of such loss, which notice shall be given within ninety days thereafter. The appearance of an adjuster of any company at the place of fire and loss in which said company is interested by reason of an insurance on such property, shall be considered evidence of notice, and to be held as a waiver of the same on the part of the company. No company shall take a risk on any property in this state at a ratio greater than three-fourths of the value of the property insured, and when taken, its value shall not be questioned in any proceeding."
The first point urged against the validity of the law is that it is an unwarranted delegation of legislative powers. The contention is that there was left to the insurance companies then doing business in the state and the then Insurance Commissioner the power to fix a form of policy to be used in Missouri, and that the exercise of that power is the performance of a duty incumbent upon the Legislature, which duty cannot be delegated to another. There is no question from the case law that the Legislature can prescribe a form of policy to be used in this state. Nor do we think that there is much question about that portion of the act of 1895, which refers to the adopting of a form of policy by the insurance companies and the Insurance Commissioner being invalid as being an unwarranted delegation of legislative power. Whether it invalidates the whole act, we discuss later. It is claimed by the plaintiff that this court held the act of 1895 constitutional in the case of Business Men's League v. Waddill, 143 Mo. 495, 45 S. W. 262, 40 L. R. A. 501. In this plaintiff is in error. In the Waddill Case we made no attempt to discuss the constitutionality of the act. We did say that such question was urged, but this court saw fit to permit that case to ride off upon another question; i. e., that ...
