Dyer v. Standard Fire Ins. Co. of N. J.

• Decision Date: 21 February 1950
• Docket Number: No. 27799,27799
• Citation: 227 S.W.2d 520
• Parties: DYER v. STANDARD FIRE INS. CO. OF NEW JERSEY.
• Court: Missouri Court of Appeals

Page 520

227 S.W.2d 520

DYER v. STANDARD FIRE INS. CO. OF NEW JERSEY.

No. 27799.

St. Louis Court of Appeals, Missouri.

Feb. 21, 1950.

Franklin E. Reagan, St. Louis, Adolph K. Schwartz, St. Louis, Sievers & Reagan, St. Louis, for appellant.

Charles E. Gray, St. Louis, for respondent.

HUGHES, Judge.

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, Sec. 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, Sec. 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...