Nalley v. Home Ins. Company

• Decision Date: 31 May 1913
• Citation: 157 S.W. 769,250 Mo. 452
• Parties: T. J. NALLEY v. HOME INSURANCE COMPANY, Appellant
• Court: Missouri Supreme Court

157 S.W. 769

250 Mo. 452

T. J. NALLEY v. HOME INSURANCE COMPANY, Appellant

Supreme Court of Missouri, First Division

May 31, 1913

Appeal from Pike Circuit Court. -- Hon. D. H. Eby, Judge.

Reversed and remanded.

J. D Hostetter and Fyke & Snider for appellant.

(1) The Act of 1895 (Laws 1895, p. 194, being Sec. 7030, R.S. 1909) is unconstitutional. Constitution, art. 4, sec. 28. The act consists of but one section. The first part of the section delegates to fire insurance companies doing business in the State of Missouri and the Insurance Commissioner authority to agree upon a uniform form of policy for use by said insurance companies in the State of Missouri to be classed and known as the Missouri fire insurance policy. That part of the section is unconstitutional because it attempts to delegate to the fire insurance companies and the Insurance Commissioner authority which is vested only in the Legislature. O'Neil v. Insurance Co., 166 Pa. St. 72; Dowling v. Ins. Co., 92 Wis. 63; Anderson v. Fire Assn Co., 59 Minn. 192; Lockes' Appeal, 72 Pa. St. 491; Railroad v. Commissioners, 1 Ohio St. 88. (2) It cannot be claimed that the title to the act embraces any risk except against loss by fire, nor can it be claimed that if the act does embrace other classes of risks, the subject is clearly expressed in its title. State v. Coffee Co., 171 Mo. 634; State ex inf. v. Bordon, 164 Mo. 221; State v. Smith, 233 Mo. 255. Insurance against loss or damage by lightning or by windstorm, cyclone or tornadoes, is not germane to insurance against loss by fire. They are entirely distinct and separate. Hence an "act relating to fire insurance and form of policies" cannot be held to relate to insurance against lightning or to insurance against loss by windstorm, cyclone or tornadoes.

Pearson & Pearson for respondent.

(1) The question of the constitutionality of Sec. 7030, R.S. 1909 has previously been before this court; and by this court held to be constitutional. Business Men's League v. Waddell, 143 Mo. 495. (2) This is no legislative authority delegated to the commissioner. It is only a duty imposed upon him to see that the laws of the State are enforced. The Legislature has enacted into a law, that all insurance companies doing business in this State shall agree upon and use a uniform policy of insurance. And, by this section, the Legislature has simply charged it as a duty upon the Insurance Commissioner to see that such uniform policy, so agreed upon by the insurance companies, is satisfactory, and in all other particulars complies with the laws of the State. (3) The statutes of Missouri classify as one subject insurance other than life. Art. 6, chap. 61, R.S. 1909. The one subject of this entire article, within the meaning of the Constitution, is, broadly speaking, insurance other than life. Under this head, there are four subdivisions any one of which is merely incidental to, and a part of "one subject," insurance other than life. The first subdivision of which covers insurance against loss or damage by "Fire, Lightning, Hail and Windstorm." Sec. 6995, R.S. 1909. Fire insurance is the great predominant insurance of this class. The legislators have used the term Fire Insurance, for all insurance of this class, and especially of this subdivision. Hanna & Co. v. Ins. Co., 109 Mo.App. 159; Gibson v. Ins. Co., 82 App. 521. (4) Appellant charges error on the part of the court, in giving plaintiff's instruction as to the value of the property at the time of issuing policy. A similar instruction to this has been before the courts many times, and has been universally approved by the appellate courts. Hanna & Co. v. Insurance Co., 109 Mo.App. 157; Stevens v. Insurance Co., 120 Mo.App. 88; Gibson v. Ins. Co., 82 Mo.App. 515; Crossam v. Ins. Co., 133 Mo. 539; Siegler & Son v. Ins. Co., 107 Mo.App. 456; Ritchey v. Home Ins. Co., 104 Mo.App. 146.

GRAVES, J. Woodson, P.J., and Lamm, J., concur in separate opinions.

OPINION

GRAVES, J.

This is an action upon what is ordinarily called a "Cyclone or Tornado policy" of insurance, wherein the plaintiff seeks to recover $ 2000 for damages to his residence in Pike county, Missouri. 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:

"1st. 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.

"2nd. It admits that on the 10th of January, 1906, it made the policy of insurance mentioned in the petition.

"3rd. 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, Illinois, and within sixty 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.' And 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 $ 1750 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 $ 2000. 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 $ 2666.66, 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 $ 2666.66.' 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, Revised Statutes 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 in 1895, Laws 1895, p. 194, is violative of section 28 of article 4 of the Constitution 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.

I. The constitutionality of section 7030, Revised Statutes 1909, is challenged by the defendant. This section comes from the Act of 1895. [Laws 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...