Opinion
No. 27799.
February 21, 1950.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, WILLIAM B. FLYNN, J.
Franklin E. Reagan, St. Louis, Adolph K. Schwartz, St. Louis, Sievers Reagan, St. Louis, for appellant.
Charles E. Gray, St. Louis, for respondent.
This suit was instituted in the magistrate court of the City of St. Louis by James W. Duncan as administrator of the estate of his deceased wife, Ella Duncan, on a petition which alleged that the defendant on January 19, 1946, and January 30, 1946, issued policies of insurance, insuring Ella Duncan and legal representatives against loss by fire on the premises located at 3970 Cook Avenue, St. Louis, Missouri, in the total amount of $4,000 for a period of three years; that the policies further provided that the insured could apply up to ten per cent of the total amount of insurance to cover private structures appertaining to the insured's premises and located thereon; that on December 1, 1946, Ella Duncan died intestate, and letters of administration were granted to James W. Duncan on December 23, 1946; that a fire occurred January 1, 1948, in a garage located on the premises, causing damage in the amount of $369.60; that demand was made from the defendant, but payment was refused.
The defendant filed no answer, the issues thereby being joined as if a general denial had been filed. From the judgment in the magistrate court an appeal was perfected to the circuit court of the City of St. Louis, and a trial was held in the circuit court on the pleadings as made up in the magistrate court, except that L. C. Dyer was substituted as party plaintiff, as successor administrator de bonis non for James W. Duncan, administrator. The parties waived the intervention of a jury, and the cause was tried by the court resulting in a judgment in plaintiff's favor for $369.60.
The evidence, which is not in dispute, will be referred to together with appellant's assignments of error.
As contended by appellant, it is unquestionably the law that real estate descends directly to the heirs and not to the administrator. Such law of inheritance has nothing to do with the issues in this case. This is a suit on fire insurance contracts, and seeks a judgment for money, personal property, to indemnify the insured for a fire loss. Estes v. Great American Ins. Co. of New York, Mo.App., 112 S.W.2d 153; Millard v. Beaumont, 194 Mo.App. 69, 185 S.W. 547. These policies clearly provided that a loss could be recovered by the insured, Ella Duncan, or if she were deceased then by her "legal representatives", that is, her executor or administrator. The law generally is stated in 46 C.J.S., Insurance, § 1149, as follows: "Where the policy runs to insured and his `legal representatives,' and the loss occurs after the death of insured, any person natural or artificial who by operation of law stands in the place of and represents insured is entitled to recover under the policy."
And in 29 Am.Jur., Insurance, § 1295, as follows: "It appears to be uniformly held that the term `legal representatives' in an insurance policy must be given its primary meaning of executor or administrator, and that a policy so payable is payable to the executor or administrator of the insured, unless a contrary intention in such respect is manifested by the context of the policy or the surrounding circumstances."
In the case of Ordelheide v. Modern Brotherhood of America, 268 Mo. 339, 348, 187 S.W. 1193, 1195, is the statement, "Generally speaking, `legal representatives,' do not mean heirs." Suit was properly prosecuted by the administrator. If as appellant argues the insurance money would belong to the heirs and not to the creditors, that question does not concern the appellant, because this administrator would still be entitled to make the claim as trustee and entitled to sue for the benefit of the heirs. Sauner v. Phoenix Ins. Co. of Brooklyn, 41 Mo.App. 480; Coil v. Continental Ins. Co., 169 Mo.App. 634, 155 S.W. 872.
Not only is there no merit to defendant's contention that the administrator is not a proper party to sue for the fire loss here involved, but we do not find that any such question was raised in the trial court.
Appellant's next point is that the garage building was not owned by Ella Duncan. James W. Duncan testified that he had paid for the erection of the garage, but he also testified that the property covered by the insurance belonged to his wife. It is a rule of law that where a husband makes improvements on the separate estate of his wife, the presumption is that, because of the marital relationship, they were gifts to the wife. Pursley v. Pursley, Mo.App., 215 S.W.2d 302, 306.
Appellant contends that the garage was a mercantile establishment and not a private structure, and hence was not covered by the insurance. The provision in the policy is as follows: "The Insured may apply up to ten per cent (10%) of the amount specified for Item 1 to cover on private structures appertaining to the above described premises and located thereon."
It was brought out in the cross-examination of James W. Duncan that he kept kindling wood and a little coal in the garage, and occasionally sold ice and wood and oil to friends in the neighborhood and had not kept an automobile in the garage for four or five years; that he had a sign on the door of the garage reading "Ice and Oil"; that he kept about 100 gallons of fuel oil at a time in the garage and occasionally sold some of it to his friends in the neighborhood. His testimony more in detail was as follows: That the structure damaged was a two car garage in the rear of the dwelling house described in the policies; it was constructed in 1927, and was about 24 feet in length and 23 feet in depth. The foundation was of concrete and the building was brick from the foundation up, with 13-inch walls. It was divided into two sections. The roof was lumber and roof paper. The fire occurred in the east end of the structure on January 1, 1948. He said the building cost $1,500, and that it was in perfect condition and was reasonably worth $1,500 immediately before the fire. He estimated its value at $1,000 after the fire. He further said that he kept about 100 gallons of fuel oil in the west side of the building and would sell oil to a few friends that would come around. He said that he was not able to do any work and "different friends and fellows come around and give me a lift." He said he would sell a few gallons of oil, "but I never made a business of it." That he would sell a few baskets of kindling wood, what he was able to carry around when they needed it, "not by the load or nothing like that, just basket wood." He said he would sell ice just around the neighborhood. He had not kept an automobile in the building for four or five years.
There is no condition or restriction in the policy as to the use the "private structures" covered were to be put. There was no warranty as to the use of the property. The testimony at most was that the husband of the insured occasionally sold small amounts of ice, wood or oil from his supply in the building. Even in those cases, as cited by appellant, where the policies contain prohibitions as to certain uses of the property, it has been held, as said in the case of Packard Mfg. Co. v. Indiana Lumbermens Mut. Ins. Co., 356 Mo. 687, 203 S.W.2d 415, 420, `The holding in these cases, when analyzed, is that a temporary or occasional use of a prohibited article in small quantities in a reasonable way and necessarily incidental to the insured's occupation does not breach a provision against storing, such use being considered within the intention of the parties at the issuance of the policy unless explicitly prohibited."
Therefore, cases as cited by appellant involving policies which contain provisions or conditions against certain use of the property, and avoiding the policy if violated, are not controlling here, because there are no such prohibitions or conditions in these policies. Appellant does say in its brief that the insured misrepresented material facts in the procurement of the policies. There is no evidence on which to base such argument, and no such point is made under the "points relied upon." The point made is that "The garage was a mercantile establishment and not a private structure." The same may be said as to the statement in the argument that the policies were void because of increased hazard and risk. Not only so, but there is no evidence that the occasional sales of small quantities of wood, oil or ice would increase the hazard. And so, not only was no such point made in appellant's brief, but there was no evidence that the use of the structure did increase the hazard over and above the storage of two automobiles for which the structure was originally designed, and no evidence that the insured knew of such activities. The clause as to increased hazard in these policies provides that the company "shall not be liable for the loss occurring (a) while the hazard is increased by any means within the control or knowledge of the insured." (Emphasis ours.)
These policies were written and the premium fixed by the appellant. There was no formal application for the policies and no representations whatever. The appellant had the right at all times before and after delivering the policies to inspect the property. It did not do so. And if it had, there is no evidence to justify a finding that it would not have insured the property just as it did do. This structure was not a public mercantile establishment. At most the evidence shows a few sales to neighborhood friends by an old crippled man from his oil barrel or wood pile and then in small quantities, which could not properly be designated as a mercantile pursuit or establishment where the public generally is invited to come and engage in buying goods, wares and merchandise.
As to the damages caused by the fire James W. Duncan testified that he had had the garage constructed himself and paid for the construction himself; that its cost at the time of the construction in 1927 was around $1,500, and that it was in perfect condition prior to the fire and was then worth $1,500; that the reasonable value of the garage after the fire was around about $1,000. This testimony was sufficient to show the value of the building immediately before and immediately after the fire.
The court admitted in evidence in connection with the testimony of L. C. Dyer, the administrator de bonis non, an estimate made by a contractor of what it would cost to repair the building after the fire. This was not admitted for the purpose of showing the amount of damages; that had already been proven by the testimony of Duncan. It was admitted merely as showing that the administrator had given notice of the loss and the amount of the claim that he was making as a basis for a settlement in his negotiations with the company's adjuster. The case was tried before the court without the aid of a jury, and the court would not likely be misled as to the true measure of damages by the admission of the contractor's estimate in showing the negotiations for settlement, when it had before it the evidence of Duncan as to the amount of damages. Neither is there merit in appellant's argument that Duncan was not qualified to testify as to the value of the building before and after the fire. Witnesses testifying as to the value of property are not required to be expert or skilled in the strict sense of the term in order to express an opinion on the value; their testimony is admissible where it appears that the witness had and utilized means superior to those of the trier of fact for forming an intelligent opinion. Lee v. Allen, Mo.App., 120 S.W.2d 172.
The judgment of the circuit court should be affirmed. It is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.