Изображения страниц
PDF
EPUB

18 Minn. 133; Pinney v. First Division etc. R. R. Co., 19 Minn. 251; 164 Arthur v. St. Paul etc. R. R. Co., 38 Minn. 95.

In the first of these cases, it was held that if the consignee resides elsewhere than at or in the immediate vicinity of the place of final destination, has no agent there, and his residence is unknown to the carrier (which was this case), the carrier can place the goods in its freighthouse, and after keeping them a reasonable time, if the consignee does not call for them, its liability as carrier ceases. We do not mean to lay down as an inflexible rule, applicable to all cases, that, in order to terminate the carrier's liability, the goods must be removed from the car and put into the carrier's freighthouse. The nature of some kinds of goods, such as coal, lumber, and the like, precludes this. It is usual for the consignees themselves to unload and carry away these kinds of freight directly from the cars. It is also true, as suggested by defendant's counsel, that there is nothing to prevent a carrier, at least under special circumstances, from using the car as its warehouse for the storage of freight. But in the case of portable boxes or packages of valuable merchandise, we think that, under any ordinary circumstances, public policy requires that it should be held the inflexible rule that, in order to terminate the carrier's liability, he must remove the goods from the car in which they were transported and place them for safe-keeping in his freighthouse. We will take notice of the fact that it is the general custom to do so with this class of goods, and to deliver them to the consignees from the freightroom, and not from the car. To allow the carrier to terminate his liability for such kinds of goods by any less formal and expressive act would be against public policy. The unloading of cars may be, and often is, delayed for the mere convenience of the carrier; and to permit him in such cases to say that the cars constituted his warehouse for the time being, and that, if the goods had been called for, they would have been delivered to the consignee, and therefore he is not liable for their loss, would inaugurate a very dangerous rule.

If the facts existed which had terminated defendant's liability as a common carrier, the burden was on it to prove them, and this it certainly failed to do, even under the most favorable view of the law. The court was right in directing a verdict for plaintiff. We are by no means sure that this direction would not have been 165 correct, even conceding that defendant's liability was only that of a warehouseman; for it would seem grossly negligent to leave a car containing portable packages of valuable merchandise unlocked, and merely fastened with a strip of tin, called a "seal,” which anyone could easily remove.

Order affirmed.

Gilfillan, C. J., absent on account of sickness, tock no part.

CARRIERS-TERMINATION OF LIABILITY.—A carrier who wishes to wholly terminate bis liability for goods must store them: Note to Gregg v. Illinois Central R. R. Čo., 37 Am. St. Rep. 247; note to Schen v. Benedict, 15 Am. St. Rep. 429; and the note to Mobile etc. R. R. Co. v. Prewitt, 7 Am. Rep. 591.

ANDERSON V. MANCHESTER FIRE ASSURANCE CO.

[59 MINNESOTA, 182.]

INSURANCE - CONSTITUTIONAL LAW.-A statute directing the insurance commissioner of the state to prepare and adopt a blank policy, together with such provisions and conditions as may be added thereto, or indorsed thereon to form a part thereof, such form to conform as near as the same can be made practicable to the form known as the New York Standard Life Insurance Policy, and requiring all insurance corporations, after the adoption of such form, to use it in all policies for fire insurance, and all renewals thereof, does not, of itself, adopt the form referred to as in use in New York, but leaves the commissioner a discretion to add to, or omit from, the provisions of such policy, and is, therefore, void, because it delegates to the commissioner legislative power which can be exercised only by the legislative department of the state.

CONSTITUTIONAL LAW.-THE LEGISLATURE CANNOT DELEGATE to any person or body the power to determine what the law shall be, except when authorized by the constitution to do

80.

INSURANCE-WAIVER.-The delivery of a policy of insur ance, with knowledge of other insurance on the same property, waives the condition in the policy making it void if the assured has other insurance.

Action against an insurance company to recover damages sustained by the loss of a frame building from fire. At the time the policy was issued, the building was already insured in the sum of five hundred dollars, as was known to defendant's solicit ing agent when he made a delivery of the policy, but consent to such insurance was not indorsed thereon. The plaintiff could not read or write English, and could converse in that language only imperfectly, and was not aware that the policy contained a stipulation against other insurance.

S. T. & William Harrison, and Kitchel, Cohn & Shaw, for the appellant.

John Jenswold, Jr., and Bunn & Hadley, for the respondent.

191 CANTY, J. This case was argued and decided in favor of appellant at the last term of this court. It having been then suggested that the laws of 1889, chapter 217, which provides for the preparation and adoption of the "Minnesota standard policy," was unconstitutional, for the reason that it attempted to delegate legislative powers to the insurance commissioner, a motion for reargument was made, on the ground of such unconstitutionality, the motion was granted, and the case has since been reargued.

192 Since the granting of the motion for reargument, the supreme court of Pennsylvania has declared a somewhat similar statute unconstitutional, as being an attempted delegation of legislative power: See O'Neil v. American etc. Ins. Co., 166 Pa. St. 72; 45 Am. St. Rep. 650. It is now conceded by appellant that, if the Minnesota statute is the same as that of Pennsylvania, it would be unconstitutional. But, while the statute of Pennsylvania attempted to give the insurance commissioner power to adopt, as the standard policy, any form of insurance contract he saw fit, it is claimed that the Minnesota statute requires the insurance commissioner to adopt the New York standard policy, and gives him no discretion, as to the substance of the contract to be so adopted, and that, therefore, there was no such attempt to delegate legislative power to him. So far as it is necessary here to consider chapter 217 of the laws of 1889, it reads as follows:

"Section 1. The insurance commissioner shall prepare and file in his office on or before the first (1st) day of August, A. D. eighteen hundred and eighty-nine (1889), a printed form in blank of a contract or policy of fire insurance, together with such provisions, agreements, or conditions as may be indorsed thereon, or added thereto, and form a part of such contract or policy, and such form, when so filed, shall be known and designated as the Minnesota Standard Policy. Said insurance commissioner shall, within sixty (60) days from the passage of this act prepare, approve, and adopt a printed form in blank of a contract or policy of fire insurance, together with such provisions, agreements, and conditions as may be indorsed thereon, or added thereto and form a part of such contract or policy, and such form shall, as near as the same can be made applicable, conform to the type and form of the New York Standard Fire Insurance Policy, so called and known. Provided, however, that five (5) days' notice of cancellation by the company shall be given, and provided that proof of loss shall be made within sixty (60) days after a fire.

AM. ST. REP., VOL. L-28

"Sec. 2. The insurance commissioner may call upon the attorney general for such assistance as to him may seem necessary in the preparation of the aforesaid standard insurance policy, and it is hereby made the duty of said attorney general to perform such service."

193 ❝Sec. 4. On and after the first (1st) day of January, A. D. eighteen hundred and ninety (1890), no fire insurance company, corporation, or association, their officers or agents, shall make, issue, use, or deliver for use, any fire insurance policy, or renewal of any fire policy, on property in this state, other than such as shall conform, in all particulars as to blanks, size of type, context, provisions, agreements, and conditions, with the printed form of contract or policy so filed in the office of the insurance commissioner, as provided for in the first (1st) section of this act, and no other or different provision, agreement, condition, or clause shall, in any manner, be made a part of said contract or policy, or be indorsed thereon or delivered therewith, except as follows, to wit."

Then follow provisions which authorize the insertion in the insurance policy of matters of description, and other particulars and provisions peculiar to the particular insurance company or the particular risk, and not inconsistent with the provisions or conditions of the standard policy. It is contended, in substance, that all of this statute above quoted which provides for the preparation and adoption of a standard form is surplusage, except the part of the laws of 1889, chapter 217, section 1, which provides that "such form shall, as near as the same can be made applicable, conform to the type and form of New York Standard Fire Insurance Policy, so called and known."

If this contention is correct, why were the provisions inserted, which immediately follow this, and require five days' notice of cancellation by the company, and provide for sixty days in which to make proof of loss? It is conceded by counsel for appellant that these identical provisions were in the New York standard form when this act was passed. If the legislature intended to require all of the provisions of that form to be adopted, why did they thus specify only those two?

Again, if the insurance commissioner had no discretion, and was to act merely as a copyist of the New York form, why was it deemed necessary to provide for him the assistance of the attor ney general in his onerous duties of copying the same? Again, why should the words "provisions, agreements, and [or] conditions" occur so often in the statute where they are of no particular importance, and be left out in the very connection and very

place where they would be all-important? Again, the statute provides that "such 184 form shall, as near as the same can be made applicable, conform to the type and form of the New York 'standard.""

It is insisted that this authorizes only such changes as striking out the words "New York," and inserting "Minnesota," and that, for the purpose of permitting such changes, the words, "as near as the same can be made applicable," were used. There are no such changes to be made. The words "New York" do not occur in the provisions of the New York standard. There is not a word in the provisions of the New York form which it is necessary to change in order to apply the form to Minnesota. Then the legislature must, at least, have intended to give the insurance commissioner power to exercise his judgment in determining which of the provisions of the New York form were applicable to Minnesota, and which were not, and this would be an unconstitutional delegation of power. Conceding, without deciding, that this would be a proper way to make the New York form a part of the Minnesota statute, if the legislature intended to adopt the New York form, they could have said so in a very few words.

The words "type and form," above quoted, are written together in the same connection, and it is fair to presume that they both refer to matters of the same general kind; that is, to matters of form. Construing these words in connection with the other provisions of the statute, we are of the opinion that they are equivalent to "type and style," that the legislature intended to give the insurance commissioner power to insert in the standard form such provisions as he saw fit, and that, while it might be materially different from the New York form in substance, it should conform to it, as far as practicable, in the size and character of the type, and in the arrangement of provisions. The object of this was obviously to prevent the use of type so small and obscure, and the arrangement of provisions so misleading, that an ordinary man would not read these provisions, and, if he did, could not understand them.

Then the legislature attempted to clothe the insurance commissioner with power to enact a general law, prescribing what provisions and conditions should be inserted in a policy of insurance, and what should not. There was no reason why the legislature could not pass this act as well as the commissioner. There may be 105 necessity for police regulation in the insurance business, for the protection of the insured and the insurer; and the regulation of many matters of detail, exceptional matters, and

« ПредыдущаяПродолжить »