Appeal from circuit court, Pulaski county; Leigh B. Woodside, Judge.
BLAND, P. J.
The suit was commenced in the Pulaski circuit court on January 30, 1901. At the following March term the cause was continued, on the application and at the cost of the defendant, to the September term, 1901, with leave to defendant to file answer within 60 days before the first day of the term, which was the first Monday, and the 2d day, of September. On the 3d day of September defendant filed, instead of an answer, a demurrer to plaintiffs' petition, which was by the court overruled. Defendant thereupon filed its answer, and thereby waived its demurrer. Omitting caption, the petition is as follows: "Now come the plaintiffs, G. M. Sisk and Mrs. G. M. Sisk, and for their cause of action against the defendant corporation respectfully state to the court: That on the 2d day of October, 1899, the defendant, the American Central Insurance Company, in consideration of the sum of forty-one and seventy-five hundredths dollars to said corporation paid, did agree with plaintiff's to insure them from the 2d day of October, 1899, to the 2d day of October, 1900, against loss or damages by fire, to the extent of fifteen hundred dollars, as follows: $100 on store furniture and fixtures, also $1,400 on their stock of merchandise, consisting principally of dry goods, boots, shoes, and notions, contained in two-story frame building, with shingle roof, at Stoutland, Missouri, agreeably to their written policy of insurance herewith filed. That while said policy of insurance and agreement was in full force and effect, and on or about the 13th day of September, 1900, the said property was entirely destroyed by fire. That at the time said agreement was made and policy of insurance issued, and at the time the same was destroyed by fire, the said plaintiffs were the sole owners of said property, and said property was at said time situate in the building aforesaid, and said property so insured was at times herein referred to and at time same was destroyed by fire of the value of twenty hundred dollars, viz.: That said store furniture and fixtures were of value of two hundred dollars, and the stock of merchandise was of the value of two thousand dollars ($2,000), and plaintiffs were damaged in those amounts by said fire. That at times herein named the said defendant was duly incorporated under the laws of the state of Missouri, and doing a general fire insurance business. That as soon as the fire occurred the plaintiffs gave the company immediate notice of such loss, and within the time provided by policy made due proof of loss as provided by said policy, and have in all things complied with all the terms and conditions of said policy. That said corporation has vexatiously neglected to pay said policy and the amount due plaintiffs thereunder, by which they are entitled to penalty and attorney's fees. Whereupon the plaintiffs demand judgment for the sum of fifteen hundred dollars damages, and interest on same, and penalties and attorney's fees and costs of suit." The answer is as follows, omitting caption: "Said defendant, for an answer to the petition of the plaintiffs herein, denies each and every allegation, matter, and thing therein contained, except as is herein admitted or explained. Said defendant admits that on the 3d day of October, 1899, in consideration of the sum of forty-one and seventy-five hundredths dollars, it did issue its policy and contract of insurance to said plaintiffs, and that on the 13th day of September, 1900, a fire occurred which injured and damaged said property; but said defendant denies that said property, or the damage thereto, ever exceeded in value the sum of two hundred and fifty dollars ($250). Further answering, said defendant alleges that by the express terms and conditions of said policy it was expressly provided as follows: `In event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first elect a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire, and the award in writing of any two shall determine the amount of such loss. The parties thereto shall pay the appraisers respectively selected by them, and shall bear equally the expenses of the appraisal and umpire. This company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act, or proceeding on its part relating
to the appraisal, or to any examination herein provided for; and the loss shall not become payable until sixty days after notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required.' Further answering, said defendant alleges that soon after said fire (the exact time defendant cannot now more accurately state) a disagreement arose between said plaintiffs and said defendant as to the amount of loss which was occasioned to said property mentioned in said policy and contract of insurance, and said defendant thereupon duly demanded of said plaintiffs, and each of them, that the same be ascertained by appraisal, as is called for in said policy and contract of insurance; but said defendant alleges that said plaintiffs have always refused and declined to have the amount of such loss so ascertained, and said defendant alleges that whatever loss was occasioned by such fire has never been ascertained, as is called and provided for in said contract and policy of insurance, by appraisal. Further answering, said defendant alleges that by reason of said facts said action has been prematurely brought, and that said plaintiffs, and neither of them, have any claim against said defendant. And further answering, defendant denies all and singular the allegations in plaintiffs' petition not hereinbefore admitted to be true. And further answering, defendant says that the claim set up in said petition against said defendant for the penalties and attorney's fees, as therein stated, for its alleged vexatious refusal to pay said policy, is a claim based upon section 8012, Rev. St. 1899, which reads as follows: `Section 8012, Rev. St. 1899. In any action against any insurance company to recover the amount of any loss under a policy of fire, life, marine or other insurance, if it appear from the evidence that such company has vexatiously refused to pay such loss, the court or jury may, in addition to the amount thereof and interest, allow the plaintiff damages not exceeding ten per cent. on the amount of the loss and a reasonable attorney's fee; and the court shall enter judgment for the aggregate sum found in the verdict.' Which said section defendant says is contrary to the fourteenth and fifth amendments to the constitution of the United States, and to section 30, art. 2, of...
