author: LAURANCE M. HYDE, Special Commissioner.

text:
    The CITY OF ST. LOUIS, a Municipal Corporation, Appellant-Plaintiff, v. GOLDEN GATE CORPORATION, a Corporation, et al., Respondents-Defendants.
    No. 52568.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1967.
    Thomas F. McGuire, City Counselor,. Aubrey B. Hamilton, Associate City Counselor, James J. Wilson, Asst. City Counselor, St. Louis, for appellant.
    Jack Greenberg, Leroy D. Clark, Gabrielle A. Kirk, New York City, for NAACP Legal Defense and Educational Fund, Inc., and the National Office for the Rights of the Indigent, Margaret McCrory, Washington, D. C., of counsel.
    J. E. Sigoloff, Charles S. Sigoloff, Sidney Rubin, St. Louis, for respondents.
   LAURANCE M. HYDE, Special Commissioner.

Plaintiff’s petition alleged violations of its “Minimum Housing Standards Law,” Ordinance 51637; and it sought to obtain compliance by appointment of a receiver, an injunction against further violations and a mandatory injunction under authority of the provisions of Ordinance 53995. The court dismissed the petition with prejudice on constitutional and other grounds raised by defendants; and plaintiff, hereinafter referred to as the City, has appealed.

The City says it acts under Art. I, Sec. 1, subsec. 29, of its charter, giving authority: “To regulate the construction and materials of all buildings and structures, and to inspect all buildings, lands and places as to their condition for health, cleanliness and safety, and, when necessary, prevent the use thereof and require any alterations or changes necessary to make them healthful, clean or safe.” City says this charter provision has the effect of an enactment by the Legislature, citing Ex parte Smith, 231 Mo. 111, 132 S.W. 607, 610. This is true of a charter provision within the authorization of Art. VI, Secs. 31-33, Const., V.A. M.S. See also City of St. Louis v. Nash, Mo.Sup., 260 S.W. 985; Kalbfell v. City of St. Louis, 357 Mo. 986, 211 S.W.2d 911.

Ordinance 53995 contains the following provisions :

“Section Two. Whenever an owner shall fail to comply with an order of the Building Commissioner or of the Health Commissioner within 60 days, as herein provided, a petition may be filed by the City in the Circuit Court of the City of St. Louis, alleging one or more violations of the Revised Code of the City of St. Louis (hereinafter referred to as ‘the Code’) and more especially Chapters 392 and 393 thereof, in such respect, and praying for an order for the appointment of a disinterested person to act as receiver of said property, for the purpose of keeping, preserving and managing the property in question. Such remedy shall be sought only when it shall appear to the Building Commissioner or the Health Commissioner, that the safety, health or welfare of persons on, about or near said premises has been or will be endangered by the condition thereof.
“In any such case, the owner, or owners of record of said property and all other persons holding or claiming any interest, title, right or lien therein or thereon, if the same shall appear of record, shall be made parties defendant and service of process may be had upon them as provided by law.
“Any receiver appointed pursuant hereto may, at the discretion of the Circuit Court, collect all rents and profits accruing from said property, pay all costs of management, including all general and special real estate taxes or assessments thereon, and make any necessary repairs thereto. Such receiver may, with the approval of the Circuit Court, borrow money against and encumber said property as security therefor, in such amounts as may be necessary to meet the standards required by the Code.”

Section Three of the ordinance further provided “a petition may be filed by the City in the Circuit Court of the City of St. Louis, alleging one or more violations of the Code in such respect, and praying for relief in the form of a decree of injunction against continued violations of the Code by the owner or owners or the person or persons in charge of said property. * * [T]he City may pray for a prohibitory injunction by which it shall seek an order against further violations of the Code, or for a mandatory injunction whereby it shall seek an order directing the defendants in said case, upon a proper showing, to comply with the provisions of the Code, or, in the alternative, if such owner shall have failed to comply timely with Section 393.-080 of the Code then for an order to raze said property so as to prevent its continued threat to the safety, health and welfare of any person or persons on, about or near said premises. Said petition may also pray for both such prohibitory and mandatory injunctions, as the nature of the case may require.”

The petition in this case sought all of these remedies, including authority for a receiver “to borrow money to make necessary repairs and in so doing to place a lien on said property for the amount of said repairs.” The Court sustained defendants’ motions to dismiss specifying the following reasons which defendants have briefed: Plaintiff had an adequate remedy at law provided by Ordinance 51637 (condemnation, action to repair at owner’s expense, fines and imprisonment) ; no cause of action stated and no jurisdiction because sole purpose of the City’s suit is appointment of a receiver; Ordinance 53995 denies defendants due process of law, takes property for public use without just compensation and violates vested rights of defendant in its property, contrary to Art. I, Sec. 10, Constitution of Missouri, and Sec. 1, 14th Amendment to U. S. Constitution, and is not a reasonable exercise of the police power but is an unreasonable, arbitrary and capricious invasion of private rights; authorizes appointment of a receiver, as a remedy for enforcement of ordinances and not for the purpose of preserving property pending litigation and is an invalid exercise of the charter powers of the City contrary to Art. VI, Sec. 19, Constitution of Missouri, and Sec. 515.240, RSMo., V.A.M.S.; delegates legislative authority to the judiciary in violation of Art. II, Sec. 1, Constitution of Missouri; authorizes receiver to keep property without providing for revest-ing, depriving defendants of their property without just compensation contrary to Art. I, Sec. 26, Missouri Constitution, and Sec. 1, 14th Amendment to U. S. Constitution; purports to confer jurisdiction on a court of equity to enforce a municipal ordinance which is beyond the powers of the City; impairs the obligation of defendants’ contract with holder of note and deed of trust by depriving it of rents which secured this obligation, contrary to Art. I, Sec. 13, Missouri Constitution, and Art. I, Sec. 10, U. S. Constitution; purports to confer jurisdiction on Circuit Court to enforce an ordinance contrary to Art. XII, Sec. 3, of the code of City conferring such jurisdiction on city courts.

Since the court decided Ordinance 53995 was invalid as being contrary to constitutional provisions, we have jurisdiction because a construction of the constitution is involved. Sec. 3, Art. V, Const. See Twiehaus v. Wright City, Mo.Sup., 412 S.W.2d 450, 451.

The City claims the constitutional provisions invoked are not applicable because Ordinance 53995 only provides authority for the City to seek equitable relief as a remedy against continued violations of its Housing Code. It says this ordinance does not attempt to confer jurisdiction on the Circuit Court but only authorizes an action based upon the right of the City to have its Housing Code enforced against continued violations by defendant for which it has no adequate remedy at law. However, the City does claim this ordinance is a valid exercise of its police power and does not deny defendant due process of law. The City also says this ordinance does not impair defendants’ obligation of contract with the holder of note secured by the trust deed on the property because a receiver would hold the property for the benefit of those ultimately entitled to it. The City further says applying the rents to abate violations of the Housing Code would inure to the benefit of the deed of trust holder' because his security would be enhanced in value through repairs made. Nevertheless the City says the interest owned by the deed of trust holder is subject to a reasonable exercise of the police power to require the repairs ordered even if it does impair obligations of contract.

Although arguing these constitutional contentions, the City’s main point is that Ordinance 53995 “does not purport to confer jurisdiction upon the Circuit Court nor does it purport by its passage to authorize the Circuit Court to appoint a Receiver nor does it purport in any way to circumscribe or broaden the power of the Circuit Court to grant rights to and impose duties upon a Receiver so appointed.” It says the ordinance “merely authorized the appropriate city officials to seek equitable relief to abate conditions created by continued violation of the Housing Code.” Although the City recognizes “there is no precedent in this state for the enforcing of a municipal ordinance in an equitable action,” it relies on the general power of a court of equity to grant relief where legal remedies are inadequate and claims a court of equity has the authority to grant the relief it seeks. The City says its action is not solely for the appointment of a receiver but is an action to have its housing code enforced by any appropriate means. It says: “In final analysis, it is appellant’s position that if the Circuit Court has jurisdiction with its equitable powers it is discretionary with that court to grant whatever equitable remedy best meets the ends of justice.” It suggests prohibitory injunction or mandatory injunction as well as appointment of a receiver.

In 4 Pomeroy’s Equity Jurisprudence, 5th Ed., 925, Secs. 1332-1335, it is said there are four general classes of cases in which a receiver may be appointed:

First: “Cases where there is no person entitled to the property who is at the same time competent to hold and manage it during the judicial proceeding, such as estates of infants, lunatics and decedents.”
Second: Where “all of the parties are equally entitled to the possession of the property which is the subject matter of the controversy, but it is not just and proper, from the nature of the dispute and their relations with each other, that either one of them should be allowed to retain possession and control during the litigation,” such as suits between partners, partition between co-owners and suits between conflicting claimants of land.
Third: “Cases in which the person holding title to the property is in a position of trust or of quasi trust and is violating his fiduciary duties” such as suits against trustees or executors, suits to enforce mortgages or equitable liens, suits by creditors and other similar suits.
Fourth: “Cases in which a receiver is appointed after judgment for the purpose of carrying the decree into effect;” such as “creditors’ suits and suits to enforce other equitable liens, suits to enforce the contracts of married women against their separate estates, and suits or proceedings generally statutory for the winding up of corporations.”

The parties cite our statute, Sec. 515.240, RSMo., V.A.M.S., but we cannot construe it either as enlarging or restricting the classes of cases stated in Pomeroy’s Equity Jurisprudence, as being proper cases for appointment of receivers.

We agree with the City that analysis of Ordinance 53995 shows that it cannot be construed as authorizing or intending to authorize the Circuit Court to appoint a receiver in cases such as this. The only reasonable construction is that it grants authority to the City through its officers to request the relief described. Therefore, the constitutional provisions relied on by defendants are not applicable. Nevertheless, we must hold that the relief of appointment of a receiver to collect rents, borrow money, use such funds for repairs and give priority for such obligations over rights of owners and mortgagees is beyond the general power of a court of equity in the situation herein presented. Our conclusion is that authority to provide this kind of relief must be conferred by statute, as ,bas been done in states which use such procedure; and that proper constitutional safeguards must be provided in such statutes. See 27 Am.Jur.2d 523, Equity, Sec. 6. “[A] court of equity cannot create rights; it is limited to determining what rights the parties have and whether or in what manner it is just and proper to enforce them.” 27 Am.Jur.2d 522, Equity, Sec. 5. An amicus curiae brief herein cites statutes of six states as follows. “Conn. Gen.Stat.Annot. Sec. 19-347B (1965); Laws of Indiana, Chapter 243, Sec. 46-6144 [48-6144] (1967); Annot. Laws of Mass., Chapter 111, Section 127H (1965); New Jersey Laws 2A:42-80 et seq. (1966) [N.J.S.A.]; N.Y. Multiple Dwelling Law Sec. 309, 4A, McKinney’s Consolidated Laws of New York, Annotated, Book 35-A; Ill. Rev.Stat. Chapter 24 Sec. 11-31-2 (1965).” These are all acts of State Legislatures, some of which including New York by recent amendment, above cited, now provide for a lien which shall have priority over all other mortgages, liens and encumbrances of record except taxes and assessments. We have been cited no court tests of the validity of such provisions.

The original New York Act which was upheld as constitutional in In the Matter of the Department of Buildings, 14 N.Y.2d 291, 251 N.Y.S.2d 441, 200 N.E. 2d 432, apparently was first of this kind. This act is based on the concept of “nuisance”. To authorize the appointment of a receiver the Department of Buildings had to certify to the existence of a nuisance which “constitutes a serious fire hazard or is a serious threat to life, health or safety.” (Emphasis ours.) It provides, if, after notice, the conditions are not remedied, and the court determines that a nuisance does exist it shall appoint the City Commissioner of Real Estate as Receiver. The receiver is authorized to collect rents and apply them to the cost of removing the nuisance, payment of operating expenses and taxes. If the rents are insufficient advancements are made from the Department of Real Estate operating fund for which the Department is given a lien. However, at the time of the above cited decision, this lien was subject to any previously recorded mortgage but the mortgagee was not entitled to any rents until the lien of the Department was paid. It was also provided that a mortgagee who removed the nuisance or reimbursed the receiver should have a lien equivalent to the lien of the receiver. This Act was held to be constitutional as a proper exercise of the police power of the state because of its relation to public health and safety. It afforded some protection of the rights of mortgagees by only postponing the right to collect rents until the cost of removing dangerous conditions have been repaid, instead of making such cost a prior lien to the mortgage. Certainly, we cannot hold that a court of equity without any statutory authority can appoint a receiver to make alterations and repairs of property, borrow money for that purpose and authorize the establishment of priority of expenditures as a lien over previously recorded mortgages as to rents and income or otherwise. Moreover, such proposed expansion of the power and jurisdiction of the Circuit Court, a state court of general jurisdiction, would surely be considered a matter of state interest, not authorized by the grant of Charter powers for local government under the provisions of Art. VI, Secs. 31-33 Const. See McDonnell Aircraft Corp. v. City of Berkeley, Mo.Sup., 367 S.W.2d 498, 502; see also Carter Carburetor Corp. v. City of St. Louis, 356 Mo. 646, 203 S.W.2d 438. Our conclusion is that the City does not state a case authorizing appointment of a receiver for the purposes sought and that the court properly denied such relief.

As to the injunctive relief sought we note the following in the Harvard Law Review article (Vol. 78, pp. 801, 826) cited by the City: “Courts of equity have traditionally had the power to abate public nuisances at the suit of interested municipal agencies. However, there is some question whether courts have the power, absent express statutory authority, to enjoin housing code violations not declared public nuisances: a traditional doctrine, now in varying stages of disrepute, prohibits equity from enjoining commission of a crime. The equity courts observed in this study all operate under statutory authorization; the question of the power to enjoin in the absence of a statute has apparently never arisen.” The City’s petition herein does not proceed on the theory of public nuisance and many of the violations alleged concern only leaks in the plumbing system, although there are some which may be structural defects. As the cited article shows a prohibitory injunction could prohibit the owner from operating his building until he had complied with the order to repair. A mandatory injunction could require the owner either to make the repairs ordered or vacate his building. Apparently vacation or prohibition of operation of the nonconforming building is not what the City wants; and we note Sec. 393.080 ,of Ordinance 51637 authorizes the owner to “remove or demolish such building and such action shall be deemed compliance.” Furthermore, Ordinance 51637, Sec. 393.050, authorizes the Building Commissioner, if the owner failed to remedy conditions necessary to bring buildings into compliance, to do so at the owner’s expense and if not paid by the owner to have special tax bills for the cost issued, which should be a lien against the property. The City fails to show why these provisions do not provide an adequate remedy and does not brief the issue of injunctive relief if it cannot have a receiver appointed,

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by LAURANCE M. HYDE, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    Sylvester SMITH, Respondent, v. The ESTATE of Lydia SYPRET, Appellant.
    No. 52311.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1967.

      Thurman, Nixon, Smith & Howald, Jeremiah Nixon and James E. Bowles, Hills-boro, for respondent.
    Carl E. Starkloff, Clayton, for appellant.
   HIGGINS, Commissioner.

Claim for services filed in the Probate Court of Jefferson County and certified to the circuit court, Section 473.420, V.A. M.S., where jury verdict and judgment were for plaintiff for $18,000.

Lydia Sypret, an elderly lady of undetermined age, residing in Festus, Missouri, died intestate and Beulah Evans, a niece of deceased, upon her application for letters of administration, was appointed ad-ministratrix of the estate of Lydia Sypret. The application averred under oath that Mrs. Sypret died September 13, 1964, and that the surviving relatives, in addition to Mrs. Evans, were other nieces and nephews or grandnieces and grandnephews. Plaintiff was not shown to be related by blood or marriage to deceased.

Plaintiff’s claim in quantum meruit was filed March 18, 1965, by which he sought the reasonable value of services allegedly rendered Lydia Sypret during her lifetime. Such services were described as: “1940-48 — General services assisting deceased around the house, including general maintenance, running errands, general handiwork * * *. 1948-1960 — More extensive services of the above type, in addition, painting, laying linoleum,' repairing wiring, cutting grass, tri-ming (sic) trees, yard work and general repairs, cleaning, spraying, paying deceased’s bills for her, shopping, transporting her around, both for personal and business, and to the doctors and hospital, caring for her when sick, reading mail, cleaning, looking out for her well being by regular visits and calls, repairing plumbing, and generally personally caring for deceased * * *. 1960 to September 1964 * * * All of the above plus extensive personal care made more necessary by additional frailities (sic) and illnesses * *

Sylvester Smith identified himself as the plaintiff. He was prevented from further testimony upon objection based upon the Dead Man’s Statute, Section 491.100, V.A. M.S.

Alta Cason had known plaintiff about fifteen or twenty years and Mrs. Sypret about ten years. She last saw Mrs. Sypret “at the hospital and at the funeral.” Her situation in the last year of her life was “very poor. * * * She was alone and she had gotten to the place where she couldn’t see and this we know, because Sylvester had taken her to the doctor * * She had conversations with Mrs. Sypret where Sylvester Smith was discussed “almost daily, I mean there wasn’t hardly a day passed that she didn’t say something about him and how she couldn’t make it without him and that he was the only one that she could rely on, really, and she told me that he was just the only thing that she had left and that, you know, she was very appreciative of it, very thankful, and that one day he would be rewarded for all of this.” Mrs. Sypret told her of a conversation with Sylvester Smith in 1948. “ * * * she said that after her husband had passed that she had asked Sylvester if he would be responsible for the keeping up * * * if he would see after the house in general, you know, do things for her such as the maintenance work, cleaning the yard, fixing light sockets, and he painted the house inside, layed (sic) linoleum, painted the house outside, just general work that a man would do around a house, that whatever she had then would become his, ’cause as I said, she told me she thought Sylvester was the only relative she had after Edith’s passing.” As to what was done before the witness knew Mrs. Sypret, “She said, he’s around the house to do things for her, he took her back and forth to the doctor, to the hospital, general, just everything. * * * Personally I’ve seen him helping cut the grass, personally we layed (sic) linoleum together, we fixed a light switch together, we’ve carried her to the hospital, also to DeSoto to. Dr. Mueller, to the eye doctor, * * * to the clinic here in Hillsboro, backwards and forwards to Barnes and visiting her back and forwards and many Sunday afternoons and just during the week days when Sylvester was off just take her out joy riding.” It was Mr. Smith’s automobile that was used to transport Mrs. Sypret. She saw no one but Sylvester work at maintaining the house and yard unless “he’d be working and he’d hire a child to go up and cut the grass for him.” Cross-examination showed that Mrs. Cason had been separated from her husband for seventeen years and did not know his whereabouts. She lived in the same apartment house in which plaintiff lived, sharing a common kitchen. She had an unadjudicated claim against the estate for $3,150 for similar services as did several other persons in the neighborhood. “I’m not .saying maybe that others didn’t do some, one or two things too, but she knew Sylvester would be the one that whatever she needed, whatever hour it was ’cause I seen him take off from work to do things for her.” Mrs. Sypret told her that plaintiff had refused to accept money, “she said, I tried to pay him and he wouldn’t take it and for this reason he would be well rewarded.” He made no demand for payment during Mrs. Sypret’s lifetime.

Wyatt Beckett saw Sylvester Smith at Mrs. Sypret’s home on more than one occasion. “ * * * one time he was painting the house, I believe, on the inside or something on the inside.” That was “probably four or five years, I think, ago I seen him there but he’d been there many times though, before that. * * * I seen him there watering the flowers or something there one day but I’ve seen him there working around. * * * he’s been going around there for the last 30 years I know * * He had never seen any other man helping around the Sypret place. He also took her places in his automobile. “ * * * she said he helped out, she didn’t know what she’d do if he (Sylvester) didn’t come see about her.”

May Eva Barnes also saw Sylvester Smith at Mrs. Sypret’s place. “He’d be cleaning the yard, cutting the lawn, or taking her to the store or to the doctor or to the clinic.” She observed these things for 20 or 25 years. She had seen plaintiff painting inside Mrs. Sypret’s house. Mr. Smith never lived in Mrs. Sypret’s home and always slept away from there. Mrs. Sypret told her, “without him she didn’t know what she’d do ’cause she didn’t have anybody else to depend on but him.”

Wallace Rosener lived near Mrs. Sypret for eighteen years prior to 1950. He saw Sylvester Smith at the Sypret place doing “what you do around the yard, work in the flowers, the grass, mending a little stuff around, working on the fences, sheds. * * * I’d see him going in and out. * * * He was over there every week and a lot of times practically every other day.” He would go there “after he got off from work, a lot of times if he was on the evening shift he’d do it in the morning, if he was evenings he’d have to do it in the mornings, if he’s working days it would be late in the evening before he could get over there.” He observed plaintiff working around the yard and cutting grass.

Mrs. Wallace Rosener also saw plaintiff at Mrs. Sypret’s doing “usually just what a man would do around the house, grass cutting, mending the fence, repairs had to be done. * * * I’ve seen him go over there and visit Mrs. Sypret.” She saw him painting on the inside of the house.

Richard L. Cook, Sr., had seen Sylvester Smith at the Sypret place. “ * * * he cuts grass, mends the fence, goes in and out all the time, I don’t know what he’d do inside but sometimes he’d bring food up there.” He saw Mr. Smith painting the porch and saw him with Mrs. Sypret in his car “quite a few times.” He watched Mr. Smith care for Mrs. Sypret’s needs for thirty-two years. Mr. Cook also had cut grass and pulled weeds for which Mrs. Sypret offered to pay him.

Doris Cook observed plaintiff at Mrs. Sypret’s “working in the yard or either taking her shopping or something. * * * he was there all the time, and when she got real sick he was there every day.” 'She saw no other man work around Mrs. Sypret’s place.

Mrs. Carl Casey saw Mr. Smith doing ■“general yard work and general work around the house, such as a man would do * * * 20 years.” She saw him drive Mrs. Sypret in his car many times. “ * * a lot of times I’ve seen them come hack with groceries, like you have when you go shopping.” She saw no other man work there. “I seen him (Sylvester) there almost every day, if it wasn’t in the morning it would be in the afternoon.” He did not live at Mrs. Sypret’s.

Lavella Keaton, a cousin of Mrs. Sy-pret, lived across the street from Mrs. Sypret for about twenty-two years. She saw Sylvester there. “ * * * he would work in the yard, or he would work in the house, anything needed doing in the house, any kind of repair work or anything and he’d take her shopping and he took her to the doctor bring her out here to Court and different things like that.” She saw no one else helping “unless some boy would be there cutting the grass, probably he’d sent someone, if he couldn’t do it, he’d sent someone.” She saw him take Mrs. Sypret in his car. “ * * * he’d take her to the doctor, he took her to the clinic, he took her shopping and when he couldn’t, when she couldn’t go, why he would go shopping himself for her.” She saw him “painting around the woodwork or something like that. * * * he was there practically every day if he could get there.” He did not live or sleep there. Mrs. Keaton also had a claim for services. She was aware that Mrs. Sypret referred to plaintiff as a nephew. “ * * * she didn’t know what she’d do if it was (not) for him and said that he would be rewarded for it.”

Elvoid L. Keaton saw plaintiff “doing work like any man would do around a home.” He saw him painting, working inside the house, and taking Mrs. Sypret in his automobile.

Ernest C. Keaton went to Mrs. Sypret’s “to shut the water off for her. On one occasion I gave him (Sylvester) some tools to repair the line with. * * * He spliced a piece of pipe into another piece of pipe. * * * it was in the bathroom, but it was underneath the floor.” He saw Sylvester there quite often, usually on the outside, and taking Mrs. Sypret in his car.

Mrs. Pearlie Barnes observed plaintiff taking Mrs. Sypret in his car and going back and forth regularly. Pearlie Barnes made similar observations for about seventeen years.

Sarah Beckett lived near Mrs. Sypret for ten years and saw plaintiff there “cutting the grass, taking Mrs. Sypret to the hospital, to the doctor and doing her trading for her.” She, too, was aware that Mrs. Sypret thought of plaintiff as a nephew.

Mattie Keaton had known Sylvester Smith since he was a child. She saw him at Mrs. Sypret’s all the time. “ * * * he’d be cleaning the yard, working around the porches, taking care of the flowers mostly anything that needed being done.” She also saw him taking Mrs. Sypret in the car. He would be there “about every day, every other day. * * * When the house began to get bad, he was there, often, off and on twenty years he’s been taking care of her.”

Lucy Akins, aged 72, had known Mrs. Sypret “ever since she had been in Festus.” She knew that Sylvester Smith went to Mrs. Sypret’s “whenever she called him.” She also saw him taking her in his car. Although she had understood Sylvester to be a nephew of Mrs. Sypret she had now learned there was no blood relationship between them.

Mrs. Sherman Barnes had seen plaintiff in Mrs. Sypret’s yard and taking her in his automobile.

Dr. Bertalan Bolgar stated that whenever he treated Mrs. Sypret, Sylvester Smith brought her to the office. According to him, Mrs. Sypret told him “that Sylvester Smith was her cousin and that he looked after her.”

Defendant’s motion for a directed verdict at the close of plaintiff’s case was overruled after which defendant adduced testimony from the defendant administra-trix, Beulah Evans. She testified that she was a niece of Mrs. Sypret and identified the surviving relatives of Mrs. Sypret, which class did not include Sylvester Smith. At the conclusion of defendant’s case, defendant again moved for a directed verdict which was denied.

Appellant questions the submissi-biiity of plaintiff’s case in that points I and II charge the court with error in refusing to direct a verdict for defendant at the close of plaintiff’s case and at the close of all the evidence. Specifically, “appellant takes the position that the plain- • tiff did not make a submissible case * * for the reason that * * * (he) did not prove that there was an intention to pay and an intention to charge but rather there was an expectation to be rewarded in the future as an heir.” Appellant would support this position by 34 C.J.S. Executors and Administrators § 370b, p. 103, “Compensation is not allowable for services performed gratuitously, even though the claimant entertained a hope of receiving a gift or legacy or acted under an erroneous belief, not induced by fraud, as to the financial condition of decedent”; and by 34 C.J.S. Executors and Administrators § 371, p. 108, “Decedent’s mere expressions of gratitude, or of a desire to compensate (persons in family relation) in the future fall short of establishing a contract for payment.”

Under the foregoing evidence, plaintiff’s case was justifiably submitted by the quantum meruit instruction on his theory that “absent a family relationship, where one performs valuable services for another, the benefit of which has been received and enjoyed by him, the law presumes an intention on the part of the former to charge and the latter to pay the reasonable value thereof and implies a promise on the part of the one receiving the services to pay a reasonable value for said services.” Embry v. Martz’ Estate, Mo., 377 S.W.2d 367, 368; Ridinger v. Harbert, Mo.App., 409 S.W.2d 764, 767 [1]. Cf. Wood v. Lewis’ Estate, 183 Mo.App. 553, 167 S.W. 666, 668.

It is obvious plaintiff was not in a family relationship with Lydia Sypret because “to constitute a ‘family’ there must be (1) a social status, (2) there must be a head who has a right, at least in a limited way, to direct and control those gathered into the household, and (3) this head must be obligated either legally. or morally to support the other members, and (4)there must be a corresponding state of at least partial dependence of the other members for this support.” Embry v. Martz’ Estate, supra, 377 S.W.2d l. c. 370 [1]. See also Steva v. Steva, Mo., 332 S.W.2d 924, 926-927 [3-6], None of these elements were shown by the evidence and, in addition, plaintiff and Mrs. Sypret lived in separate homes and there was no relation by blood or marriage, factors which would bear on such a relationship. Ridinger v. Harbert, supra, 409 S.W.2d l. c. 767 [1].

Defendant neither pleaded nor proved the affirmative defense of a family relationship, a matter upon which- defendant would have the burden of proof, Muench v. South Side National Bank, Mo., 251 S.W.2d 1, 4 [6]; and where there is no family relationship, the intent to charge and agreement ftnpay are presumed and the burden is on the resisting party to prove otherwise. Thomas v. Fitzgerald’s Estate, Mo.App., 297 S.W. 425, 428 [2, 3]. There was an opinion by witness Cason on cross-examination that plaintiff rendered his services out of love and affection, but such was not an admission of, nor binding on plaintiff, and did not compel a directed verdict against plaintiff.

In point III error is charged in the refusal of Instruction No. A: “If the jury believe that the claimant believed that he was a blood relative of the deceased, he cannot receive a verdict * * * unless claimant has proved an express contract between himself and the deceased for the performance of and payment for services rendered the deceased.”

This instruction was properly refused because, as previously demonstrated, the only way that defendant can cast the burden of proving an express contract on plaintiff is by proving a family relationship, as defined in Embry v. Martz’ Estate, supra, and Steva v. Steva, supra, and kinship, actual or assumed, is “not necessarily essential to the establishment of a family relation.” Wells v. Goff, 361 Mo. 1188, 239 S.W.2d 301, 304 [5].

Appellant’s point IV is a charge of error in refusing Instruction No. B: “Your verdict must be for the defendant if you believe: That the claimant performed services for the deceased upon the belief or in anticipation of being granted a bequest or a legacy from the estate of the deceased, even if you believe that the deceased stated that she would do so.”

This would also misstate the applicable law. It is true that where family relationship exists, a plaintiff may not prove the required contract to compensate by a showing that deceased intended to bestow a bounty unless he shows further that such was the agreement and the manner in which the agreement was to be fulfilled. Trantham v. Gullic, Mo.App., 201 S.W.2d 522, 527. In this case, however, where no family relationship is shown, plaintiff need not show when he intended to be paid because once he shows services rendered by him to deceased and accepted by deceased, the law implies the contract for compensation, Embry v. Martz’ Estate, supra, and the burden is on defendant to show the services were rendered gratuitously, Thomas v. Fitzgerald, supra. Instruction No. 4 amply covered this aspect of the submission by directing a verdict for defendant if the jury believed “That the claimant did not intend to charge the deceased * * * even though you believe that she offered to or was willing to pay * * ⅜»

By Points V and VI, appellant complains of error in giving Instructions 2 and 3. These instructions are nearly identical to and of the same substance as Instructions 3 and 4 set forth and found free of error in Ridinger v. Harbert, supra, 409 S.W.2d l. c. 768 [6].

Additionally, appellant argues that a directed verdict was required “for the reason that there is no proof whatsoever in the record as to the value of any services performed.” The services proved to have been rendered by plaintiff, home maintenance, repairs, yard work, driving, nursing, personal care, etc., are of a nature, the reasonable value of which is within the common knowledge of the court and jury, and where such common knowledge exists, “proof of the reasonable value is not essential to a recovery in quantum meruit. * * * ‘The members of a jury may be presumed to know the value of the services of a nurse or common laborer.’ ” Ashley v. Williams, 365 Mo. 286, 281 S.W.2d 875, 881 [10].

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.


author: HOLMAN, Chief Justice.

text:
    STATE ex rel. Lucy Shepherd JAKOBE, Relator, v. Hon. William H. BILLINGS, Judge of the Circuit Court of Stoddard County, Missouri, Respondent.
    No. 53060.
    Supreme Court of Missouri, En Banc.
    Nov. 27, 1967.

      Buerkle & Lowes, Albert C. Lowes, Kenneth L. Waldron, Jackson, for relator.
    C. H. Parsons, Jr., Dexter, for respondent.
   HOLMAN, Chief Justice.

In this original proceeding in prohibition relator seeks to prevent the respondent from taking any further action in the case of Bailey Kestner and Mary E. Kestner, plaintiffs, vs. Lucy Shepherd Jakobe, defendant, other than entering orders changing the venue and disqualifying himself. That case was tried in 1965 and Mary obtained a judgment. Upon appeal the judgment was reversed and the cause remanded for a new trial. Kestner v. Jakobe, Mo.App., 412 S.W.2d 205.

On April 10, 1967, relator filed an application for change of venue and an application to disqualify respondent as judge in the aforementioned case. On May 1, 1967, the respondent considered said applications and entered the following order: “Application for change of venue and disqualification of judge denied because of defective affidavit.”

Civil Rule 51.06(a), V.A.M.R. provides that a party seeking a change of venue or disqualification of the judge shall annex to the application “an affidavit, made by himself, his agent or attorney, to the truth of the petition, and that affiant has just cause to believe that he cannot have a fair trial on account of the cause alleged and that the application is made in good faith and not to delay the trial or to vex or harass the adverse party * * *The applications we are considering each contained the statement “that the applicant makes this application in good faith and not to delay the trial or to vex or harass the adverse party.” The affidavit to the application for change of venue reads as follows: “Albert C. Lowes, being first duly sworn on his oath, states that he is the attorney of record for the defendant in the above entitled cause and makes this affidavit on behalf of said defendant, and af-fiant states that the facts stated in the above and foregoing application are true and that the affiant and defendant have just cause to believe and do believe that the defendant cannot have a fair trial in the Circuit Court of Stoddard County for the causes stated in the foregoing application.” The other affidavit was substantially the same.

Respondent contends that the affidavits were defective because they did not contain the words required by Civil Rule 51.06 (a) “that the application is made in good faith and not to delay the trial or to vex or harass the adverse party.” It will be noted that that statement was contained (although not required) in each application and that each affidavit stated “that the facts stated in the above and foregoing application are true.”

This court has said that “strict compliance with the statute and the rules of this court is essential to the sufficiency of the application.” Land Clearance for Redevelopment Authority of City of St. Louis v. Zitko, Mo.Sup., 386 S.W.2d 69, 77. But the courts have also stated that “[i]f the application is in substantial compliance with the requirements of the statute, the change must be granted. * * * It is not essential that the allegation follow literally the language of the statute. Equivalent language is sufficient.” Ralston v. Ralston, Mo.App., 166 S.W.2d 235, 237. We do not think the cases which use the expression “strict compliance” should be construed as holding that the sufficiency of the application shall be made to depend entirely upon it containing the exact words specified in the Rule or a literal adherence to the form of instrument the Rule might indicate.

It is our conclusion that the affidavits before us are a substantial and sufficient compliance with the requirements of the Rule. The exact words required to be in the affidavits were included in the applications and the affiant swore that the facts stated in the applications were true. We think that was substantially the same as including the words in the affidavits. The reverse of this situation appears in the case of LaGrange Elevator Co. No. 111 v. Richter, Mo.App., 129 S.W.2d 22. There the entire instrument seeking a change of venue was in the form of an affidavit. However, since it contained the allegations required of an application it was held to be sufficient.

We hold that the applications and affidavits were in substantial compliance with Civil Rule 51.06(a) and that the respondent erred in not granting the relief therein sought. We may add, however, that in order to avoid questions such as are raised in this case, and in the interest of orderly pleading and procedure, attorneys would be well advised, in preparing applications and affidavits for change of venue or disqualification of a judge, to endeavor as nearly as possible to adopt a form which is in exact compliance with the Rule.

In support of his contention respondent has cited the following cases: Erhart v. Todd, Mo.Sup., 325 S.W.2d 750, 752; Von Eime v. Fuchs, 320 Mo. 746, 8 S.W.2d 824, 826; Industrial Acceptance Corp. v. Webb, Mo.App., 287 S.W. 657, 659(3); George L. Cousins Contracting Co. v. Acer Realty Co., Mo.App., 110 S.W.2d 885, 888; State ex rel. State Highway Commission of Missouri v. Hartman, 226 Mo.App. 604, 44 S.W.2d 169, 170; Spencer v. Smith, Mo.App., 128 S.W.2d 315, 318; and Land Clearance for Redevelopment Authority of City of St. Louis v. Zitko, supra. We have read all of those cases and find that they are distinguishable upon the facts and that none of them support the action of respondent in overruling the applications under consideration.

Civil Rule 51.06(b) provides that “[ajfter a case has been set for trial, applications for change of venue and disqualification of the judge must be joined and presented together and cannot thereafter be made separately.” It is suggested in respondent’s brief that since relator filed separate applications for change of venue and for disqualification of the judge the quoted rule was violated. We do not agree. In the first place, it should be noted that respondent did not rely on that point in overruling the applications. Moreover, the applications were filed at the same time, presented together, and were treated by the respondent as one application, as shown by the order overruling same. In that situation we think the applications were substantially the same as though they had been combined in one paper or pleading.

It is also suggested that, in our discretion, we should refuse to make the provisional rule absolute because relator has an adequate remedy by way of appeal. We decline to so rule. In this case we have issued our provisional rule and have determined that the court erred in failing to grant the change of venue and change of judge. In that situation we could not reasonably deny relator relief, require her to try the case, and, if unsuccessful, appeal in order to obtain the relief she is now entitled to. State ex rel. Busby v. Cowan, 232 Mo.App. 391, 107 S.W.2d 805 [8].

Our provisional rule in prohibition is made absolute and respondent is prohibited from taking any further action in the aforementioned case except to enter an appropriate order or orders granting a change of venue and disqualifying himself therein.

All concur.


author: TITUS, Judge.

text:
    Guido MORRIS, Plaintiff-Respondent, v. The WESTERN CASUALTY AND SURETY COMPANY, a corporation, Defendant-Appellant.
    No. 8680.
    Springfield Court of Appeals, Missouri.
    Oct. 25, 1967.

      Allen, Woolsey & Fisher, Russell G. Clark, Springfield, for defendant-appellant.
    Mann, Walter, Burkart, Weathers & Schroff, Glenn A. Burkart, Springfield, for plaintiff-respondent.
   TITUS, Judge.

The defendant-appellant in this declaratory judgment action is The Western Casualty and Surety Company (hereafter called “Western”), who had issued to plaintiff-respondent, Guido Morris, a “Manufacturers’ and Contractors’ Liability Policy” of insurance which was in force at all times here concerned. In February 1964 Morris, as an individual operating a plumbing, heating and electrical business out of his home in Fair Grove, Missouri, agreed to do “electrical wiring” for Charles Edel. Morris does not manufacture any products and is not in the business of selling goods. Any materials used in the performance of services for customers are purchased by Morris from distributors “boxed [or] in open bulk.” The “electrical wiring” work was completed, accepted and paid for by Edel in April 1964 and “all that [Morris] was supposed to do had [then] been completed. * * * There was no agreement between [Morris] and Mr. Edel that [Morris was] to go back to do further work.” Edel has claimed in a suit filed against Morris that on July 2, 1964, he was injured and damaged by “electrical shock” because “Morris defectively wired [Edel’s] home in that * * * Morris failed to provide means of disconnecting all sources and supply of electricity.” Western declined to defend the damage suit which is still pending. The explanation given for its refusal is the work performed for Edel by Morris had been completed when the alleged accident occurred “away from premises owned, rented or controlled by” Morris and this would be included only in coverage for “Products — Completed Operations” which Morris did not have. A jury was waived for the trial of this cause in the Circuit Court of Greene County and Western was adjudged obligated to defend Morris in the damage suit and pay any judgment which might be rendered therein against him up to the policy limits of $5,000. Western was also declared to be indebted to Morris in the sum of $200 for attorneys’ fees he had paid. Western’s after-trial motions were overruled and it appealed.

When, as here, the trial court determines the cause without a jury we review the case upon both the law and the evidence (V.A.M.R. 73.01 [d]) and tax ourselves with the task of determining if the circuit court’s judgment was correct upon any legal theory consistent with the pleadings. University Bank v. Mock, Mo.App., 411 S.W.2d 843(1); Service Construction Company v. Nichols Const. Co., Mo.App., 378 S.W.2d 283, 290(12).

Morris contends the hazard “Premises— Operations,” admittedly insured by the policy, covers “the ownership, maintenance or use of premises, and all operations” by him in the business of “electrical wiring” regardless of the accident site or whether the accident occurred as he was performing services or following completion of his work. (Emphasis added.) In the alternative, he pleads the policy is ambiguous as regards Western’s obligations and should be construed to extend the coverage he claims.

The policy is printed on legal cap paper to which has been attached three additional pages. The “Declarations” describe Morris’ business as “Plumbing and Electrical Wiring” but leave blank the “Location of premises.” Item 3 of the Declarations (omitting the last or “Property Damage Coverage B” column and other portions not presently germane) reads:

“Item 3. The insurance afforded is only with respect to such and so many of the following coverages and divisions of hazards as are indicated by specific premium charge or charges. The limit of the company’s liability against each such coverage and division shall be as stated herein, subject to all the terms of this policy having reference thereto. The rating classifications under Description of Hazards do not modify the exclusions or other terms of this policy.

* *

The pertinent parts of the second or first inside page of the policy provide that Western “agrees with the insured * * * subject to the limits of liability, exclusions, conditions and other terms of this policy:

“Insuring Agreements
“1. Coverage A — Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person, caused by accident ¿nd arising out of the hazards hereinafter defined. Coverage B — Property Damage Liability * *
“Definition of Hazards
“Division 1 — Premises—Operations. The ownership, maintenance or use of premises, and all operations.
“Division 2 — Elevators • * * *
“Division 3 — Independent Contractors * * ⅜
“Division 4 — Products—Completed Operations. (1) Goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name, if the accident occurs after possession of such goods or products has been relinquished to others by' the named insured or -by others trading under his name and if such accident occurs away from premises owned, rented or controlled by the named insured or on premises for which the classification stated in division 1 of Item 3 of the declarations excludes- any part of the foregoing; provided, such goods or products shall be deemed to include any container thereof, other than a vehicle, but shall not include any vending machine or any property, other than such container, rented to or located for use of others but not sold; (2) operations, if the accident occurs after such operations have been completed or abandoned and occurs away from premises owned, rented or controlled by the named insured, provided, operations shall not be deemed incomplete because improperly or defectively performed or because further operations may be required pursuant to an agreement; provided further, the following shall not be deemed to be ‘operations’ within the meaning of this ''paragraph: (a) pick-up or delivery, except from or "onto a railroad car, (b) the maintenance of vehicles owned or used by or in behalf of the insured, (c) the existence of tools, uninstalled equipment and abandoned or unused materials and (d) operations for which the classification stated in division 1 of Item 3 of the declarations specifically includes completed operations; (3) the word ‘operations’ as used in the paragraph above includes any act or omission in connection with operations performed by or on behalf of the named insured on the premises or elsewhere, whether or not goods or products. are involved in such operations.
⅝ ⅜ ⅜ jji ⅜
“Exclusions
“This policy does not apply:
* * * * * *
“(c) under division 1 of the Definition of Hazards, and under coverage c, to (1) the Independent Contractors Hazard or (2) the Products — Completed Operations Hazard; * * *”

The “Schedule Attached” referred to in division 1 of Item 3 of the declarations, is denominated as “Extension Schedule” and is the third item attached to the third page of the policy. Without reference, however, to any division, the “Schedule of Coverage” lists:

“Excavation * * *
“Plumbing * * *
“Sheet Metal Works * * *
“Electrical Wiring — within buildings including installation or repair of fixtures or appliances. Installation of electrical machinery or auxiliary apparatus to'be separately rated.”

In the last major portion of the policy-under the heading of “Conditions,” we find these additional statements:

“1. Premium * * * when used as a premium basis: * * * (4) the word ‘sales’ means the gross amount of money charged by the named insured * * * for all goods and products sold or distributed during the policy period and charged during the policy period for installation, servicing or repair * * *
* ⅜ * ⅜ * ⅜
“6. Limits of Liability — Coverages A, B and D * * * Under divisions 1 and 3 of the Definition of Hazards * * * said limit applies separately to each project with respect to operations being performed away from premises owned by or rented to the named insured.”

As above noted, in the Declarations of the policy there is nothing to indicate “Location of Premises.” We find nothing in the policy which defines “premises” as that word is used in the Declarations or in definition of hazards relating to “Premises — Operations.”

The “Premises — Operations” and “Products — Completed Operations” hazards are separately defined and there is nothing in the policy to indicate a reciprocal relation between the two. While an exclusion does specify the “policy does not apply * * * under division 1 of the Definition of Hazards * * * to * * * the Products — Completed Operations Hazard,” it does not necessarily follow the “completed operations away from premises” coverage is not also included in “Premises— Operations.” The policy nowhere provides that all matters included in “Products — Completed Operations” are excluded from “Premises — Operations.” Western urges that if the occurrence falls within “Products — Completed Operations” then, a fortiori, it is eliminated from coverage under “Premises — Operations.” We do not agree an unbiased reading of the policy would convince a reasonable mind Western’s conclusion is the only interpretation that can come from a perusal of the contract. Item 6 of Conditions, “Limits of Liability — Coverages A, B and D,” provides that “Under divisions 1 and 3 of the Definition of Hazards and under coverage D, said limit applies separately to each project with respect to operations being performed away from premises owned by or rented to the named insured.” In the definition of “Products — Completed Operations” the policy relates that “operations” as used therein does not apply to “operations for which the classification stated in division 1 of Item 3 of the declarations specifically includes completed operations.” This indicates there are “completed operations * * * the underwriters want * * * to be covered by the Premises— Operation Hazard” (General Liability Insurance Handbook, 2nd Ed., by David Tyree Ratcliff, Ch. 9 at p. 128) and Item 6 of Conditions, supra, recognizes “operations being performed away from premises owned by or rented to the named insured” as also falling within the coverage for “Premises— Operations.” The word “premises,” as we have stated, is not defined in the policy. The “Premises — Operations” hazard relates to “use of premises” without restricting it to premises “owned, rented or controlled by the named insured.” The “Premises — Operations” hazard covers “all operations” without confining it to incompleted operations or operations performed at any particular place. Consequently we cannot accede to Western’s claim that if the accident falls within the “Products — Completed Operations” hazard an exclusion to that hazard must be read into the “Premises — Operations” coverage in the policy. St. Paul Fire and Marine Insurance Company v. Coleman (D.C.W.D.Ark.) 204 F.Supp. 713, affirmed (8 C.C.A.) 316 F.2d 77, 80, 81(1, 2), cert. denied 375 U.S. 903, 84 S.Ct. 191, 11 L.Ed.2d 143. The most to be said for the construction Western invites is the policy is ambiguous and susceptible of also being understood in the manner urged by Morris. In such circumstances the policy will be construed against Western and in favor of the interpretation which will sustain Morris’ claim. Clarkson v. M F A Mutual Insurance Company, Mo.App., 413 S.W.2d 10, 12(1); Irelan v. Standard Mutual Association of Cassville, Mo.App., 379 S.W.2d 815, 819(5); Hill v. Seaboard Fire & Marine Insurance Company, Mo.App., 374 S.W.2d 606, 611(8); Aetna Casualty and Surety Company v. Stover (8 C.C.A.) 327 F.2d 288, 290(1-3), 7 A.L.R.3d 655. When Western sought to restrict or lessen the effect of the general liability clause of the insurance policy because of an exception or exclusion, it assumed the burden of proving the exclusion to be unambiguously effective. Gennari v. Prudential Insurance Company of America, Mo., 335 S.W.2d 55, 61(4); Riverside Insurance Company of America v. McGlothin, 231 Ark. 764, 332 S.W.2d 486, 488(1). This burden, in our opinion, was not sustained and we are directed by the rule “of resolving all * * * ambiguities in favor of broad general coverage.” Arnold v. Edelman, Mo., 392 S.W.2d 231, 236(1), and cases there cited.

The trial court and parties to this cause grant more than momentary genuflection to Rafiner Elevator Works, Inc. v. Michigan Mut. Liab. Co., Mo. (banc) 392 S.W.2d 240, Kissel v. Aetna Casualty & Surety Co., Mo.App., 380 S.W.2d 497, and the many authorities cited in those cases. A critique of those opinions here would only serve to prolong this writing and could in no way enhance what has there been so ably reasoned. Suffice it to say, the insureds in Rafiner and Kissel were covered with comprehensive general liability policies when their tort liabilities to third persons resulted from misperformance of services which had been completed at the time the injury occurred on premises not owned, rented or controlled by the named insureds. The “Products Hazard” or “Products (Including Completed Operations)” coverages were excluded or “not covered” in the policies and defined similarly to clauses (1) and (2) of Division 4 in the instant case. Very broadly, Rafiner and Kissel (following what is called the majority view under recent decisions) hold that mingling a completed-off-the-premises-hazard definition or exclusion under the section of a policy having to do with products, results in an ambiguity if the generally covered insured does not sell or manufacture products as understood by popular definition, and that such ambiguity is to be resolved against the insurer and in favor of the insured.

To a degree, Western concedes that if a “completed off the premises operation” exclusion or definition be hidden beneath the title “products” or “products hazard” an ambiguity exists as no one other than an acutely perceptive insurance agent or underwriter steeped in insurance jargon would undertake to search that portion of the policy for the restrictions on coverage here contended. Western postulates, however, that if the hazard relating to “completed off the premises operation” appears under a heading of “Products — Completed Operation,” the vagueness vanishes. We discern little difference between the titles employed and note the title of “Products (Including Completed Operations)” involved in the Kissel case did not serve to assuage the ambiguity acclaimed there. “It is our opinion that ‘Products — Completed Operations’ applied to a contractor [or one not principally engaged in selling or manufacturing products] is still ambiguous. Perhaps it is not as ambiguous as the word ‘Products,’ [or ‘Products ■ Hazard’] but nevertheless there is still ambiguity.” Maretti v. Midland National Insurance Company, 42 Ill.App.2d 17, 190 N.E.2d 597, 601(3).

The contracts involved in Rafiner and Kissel, supra, were general liability insurance policies where “products — completed operations” coverage was initially included but withdrawn by endorsement. Western says the present case, which involves a manufacturers’ and contractors’ liability policy, is different because “products — completed operations” coverage was never extended in the first place. This tenuous difference, if it is a difference, did not serve to alter the ambiguity found existing in St. Paul Fire and Marine Insurance Co. v. Coleman, supra, 204 F.Supp. 713 and 316 F.2d 77; Hoffman & Klemperer Co. v. Ocean Accident & Guar. Corp. (7 C.C.A.) 292 F.2d 324, or New Amsterdam Casualty Company v. Addison, Fla.App., 169 So.2d 877, each of which involved a manufacturers’ and contractors’ liability policy with Division 4 thereof entitled “Products— Completed Operations.” Whether Division 4 of the policy is made inapplicable (as understood by insurer) by endorsement or because ' “not covered,” does not detract from the resulting ambiguity or the coverage admittedly extended under “Premises — Operations” which insured against liability arising from “all operations” without restriction as to whether the work be completed or incompleted and without regard to whether the work is performed by the insured on or off his premises. Poynter v. Fidelity and Casualty Company of New York, La.App., 140 So.2d 42, 45(2). We must remember an insurance policy “is to be interpreted as the ordinary person in the shoes of the insured would understand it” (Peerless Insurance Company v. Clough, 105 N.H. 76, 193 A.2d 444, 446 [3]) and “the courts do not necessarily accept the construction accorded to policy terms by astute insurance specialists or perspicacious counsel but rather are concerned with the meaning which the ordinary insured of average intelligence and common understanding reasonably would give to the words or language under consideration.” Hammontree v. Central Mutual Insurance Company, Mo.App., 385 S.W.2d 661, 666-667(4). Whether it be a general liability policy, a manufacturers’ and contractors’ policy or an owners, landlords and tenants policy (as in Maretti v. Midland National Insurance Company, supra, 42 Ill.App.2d 17, 190 N.E.2d 597), a “completed off the premises operation” definition or exclusion blended into a statement concerning products would be ambiguous and misleading to the average insured not a vendor or manufacturer of products.

Another distinction claimed by Western was made to the trial court and the learned circuit judge in an excellent memorandum opinion, which we adopt, said: “True it is that the subject policy’s definition of ‘Products Hazard’ contains the words ‘whether or not goods or products are involved in such operations,’ which were not in the insurance policies on which Rafiner and Kissel were decided. However, Rafiner construed its policy as if it contained such words. The Court stated (392 S.W.2d, l. c. 242): ‘The definition in (2), supra, would appear to include any activity relating to labor or the rendition of services even though no tangible goods are handled or produced.’ (Emphasis supplied). The court in effect held that provisions of the kind contained in the ‘Definition of Hazards’ on ‘Products — Completed Operations,’ (whether such does or does not contain the words quoted above) misleading and ambiguous because the average person would not expect an exclusion on ‘products’ to contain an exclusion of ‘services’ that have been completed.”

Western finally presses us to observe a difference between the Rafiner and Kissel cases and the present one on the dubious basis the insureds in Rafiner and Kissel “did not manufacture, sell, handle or distribute a product” whereas “products used [by Morris] for his customers were obtained ready made, some in boxes and others in open bulk.” The insured in Kissel was a contractor employed in building a school. In the Rafiner case the insured “was engaged in the business of manufacturing, repairing, and servicing elevators”, although the tort it allegedly committed had to do with its services and not its products. There should be little doubt in anyone’s mind but that a contractor undertaking to build a school, an elevator company engaged in repairing and servicing elevators, and an electrician performing “electrical wiring” will use some sort of a product in the performance of such services. • The wares used, however, are merely an incidental necessity to the work performed and are not commonly understood or contemplated as being “goods or products manufactured, sold, handled or distributed by the name insured.” Edel’s petition is not grounded on any defects in materials allegedly and incidentally used or applied by Morris in the performance of his services. Rather, Edel says Morris performed his services negligently. The differentiation sought by Western appears too technical to be comprehended by an average insured as constituting a nullification of coverage for “all operations” if he incidentally uses or provides some item not manufactured, sold, handled or distributed by him in the performance of services.

The ambiguity which appears in the policy by commingling “operations” with “goods or products manufactured, sold, handled or distributed by the named insured,” is acutely compounded by the Declarations and paragraphs 1(4) of the Conditions. It will be noted in the Declarations the “Premium Bases,” the “Rate” and “Premium” for “Bodily Injury Coverage A” as applied to “Products — Completed Operations” (Division 4), are predicated on “Sales” and “Per $1,000 Sales.” The Conditions of the policy defines the word “sales” for premium purposes to mean “the gross amount of money charged by the named insured * * * for all goods and products sold or distributed during the policy period and charged during the policy period for installation, servicing or repair * * * ” The words “Sales” and “Per $1,000 Sales” indicate “without serious room for doubt, the language [Products — Completed Operations] refers to sales of products, goods, wares or merchandise as by a manufacturer or producer as the premiums are scheduled on the amount of sales.” King v. Mason, La.App., 95 So.2d 705, 718. A person whose insured vocation is “services” and not “sales” cannot be held to anticipate affinity between his undertakings and “Products — Completed Operations” when the premium for the latter is determined by “the gross amount of money * * * charged for all goods and products sold.” Neither should he be expected to anticipate the definition of a hazard, the premium for which is calculated on gross sales, will contain an exclusion or limitation on coverage extended for “all [his service] operations.”

Morris’ simple aim in procuring the policy in question was to secure indemnity against liability on tort claims arising from his operations in the business of plumbing and electrical wiring. He unquestionably was afforded coverage for his “use of premises, and all operations.” Any provision in the policy which could effectively serve to dilute or detract from the general coverage extended would have to do so without equivocation or ambiguity. We agree with the trial court this was not done and its judgment is accordingly affirmed.

STONE, P. J., and HOGAN, J., concur.

      . Member of the Virginia Bar and Faculty Member, The School of Insurance, Insurance Society of New York, Inc.


author: TOWNSEND, Commissioner.

text:
    PRUDENTIAL INSURANCE COMPANY OF AMERICA, a corporation, Plaintiff, v. Lillian Mae GIBSON, Defendant-Appellant, Venator GIBSON, Defendant-Respondent.
    No. 32593.
    St. Louis Court of Appeals. Missouri.
    Sept. 19, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 17, 1967.
    Application to Transfer Denied Dec. 11, 1967.

      Ernest L. Keathley, Vernon C. Oetting, St. Louis, for defendant-appellant.
    Walter H. Pollmann, Morris B. Kessler, St. Louis, for defendant-respondent.
   TOWNSEND, Commissioner.

Interpleader suit in which plaintiff life insurance company has paid into the registry of the court the contractual amount of its policy and has been discharged.

The adverse parties are the divorced first wife of the deceased insured, Arico Gibson, and his second wife. This appeal is taken from a decree in favor of the first wife. The principal issues are: 1. Whether insured and the first wife, Venator, entered into a contract at the time of divorce that insured would maintain in full force the policy in question with the first wife as beneficiary and 2. if such a contract was entered into, whether it is binding upon the second wife, Lillian, in whose favor the insured effected a change of beneficiary two years before his death. Problems of material alteration and of contract interpretation arise along the way.

At the death of Arico Gibson, two certificates of life insurance under two group policies were in full force, one issued by Prudential Insurance Company and one by Metropolitan Life Insurance Company. The Prudential policy was issued in accordance with the collective bargaining agreement between Brown Shoe Company and Arico Gibson’s local union. All premiums were paid up to the time of Arico’s death, which the pleadings indicate occurred on or about December 25, 1964. The circumstances of the issuance of the Metropolitan group policy and certificate are not shown.

In negotiations between the insured and the first wife prior to and in anticipation of divorce the insured signed and acknowledged a stipulation prepared by Mr. Kessler, the attorney for the first wife, hereinafter referred to as respondent, which reads in part as follows:

“5. Defendant [Arico] is to maintain in full force and effect with the plaintiff [Venator] as beneficiary policy of insurance upon his life, issued to him as an employee of Brown Shoe Company by either the Teamster’s Local Welfare Fund or Metropolitan Life Insurance Company group policy.”

This stipulation was executed in the office of the insured husband’s attorney, Mr. Litz, and was by him forwarded to Mr. Kessler. Thereafter when respondent Venator executed this document in Mr. Kessler’s office there had been added by her attorney at the end of the above paragraph 5 the words, “or Prudential Life insurance or any other insurance company.”

The stipulation, in the altered form, is found in the file of the divorce proceeding, but is of course not embodied in the decree.

Mr. Kessler testified as to the circumstances of the alteration: “A Originally, Mr. Litz represented to me that there was one policy of insurance and that was The Metropolitan policy of insurance. Mrs. Gibson, when she came in to sign this stipulation, advised me and informed me that there were two policies. I contacted Mr. Litz and he was not sure and he couldn’t tell me. He knew about The Metropolitan policy. I informed Mr. Litz that the agreement was that all policies would be carried under this stipulation and he agreed that if he was in error about there being only the one policy, that it should he changed and it was changed and I made the change before Mrs. Gibson signed this. * * * The amended stipulation was mailed out to Mr. Litz immediately after Mrs. Venator Gibson signed it, in accordance with our ‘phone conversation and that was my letter to Mr. Litz. Q Which has already been offered in evidence here? A Yes, sir.”

The letter referred to in Mr. Kessler’s testimony was previously offered by appellant ; it was dated on the same day that respondent signed the altered stipulation and read as follows: “Re: Gibson v. Gibson. Dear Mr. Litz: Enclosed find copy of Stipulation. Please note that I have made the insertion in paragraph 5 in accordance with our telephone conversation of this date. I have notified my client of the setting of April 5th, 1961.”

Mr. Litz, attorney for Arico Gibson in the divorce suit, testified as follows: “Q Had you discussed the terms of this stipulation with your client, Arico Gibson, now deceased, before he signed that paper? A We had many discussions about it. * * * Q (By Mr. Pollmann) I will ask you, again, you did discuss the terms of this stipulation and settlement agreement with your client before he signed it, is that correct? A Yes, sir. * * * Q Your client knew about the language, all the language in that agreement when the divorce was granted, is that correct? A Yes, sir. Q No question about that? A No, sir. * * * Q Did you talk about the Prudential policy to your client, Mr. Arico Gibson? A We spoke about two policies and we didn’t refer to them, generally, by the names of the companies from which the policies were issued, but rather, the places from where he got the policies. As I recall, he worked at Brown Shoe Company. He had one policy there and one from The Teamsters Union, and exactly which was which, I don’t recall, but these were the ones that we referred to and later, in discussions with Mr. Kessler, I found out that Prudential and Metropolitan were involved. Q That was before the divorce was granted, right? A Oh, yes. Q And you talked about this with your client and with Mr. Kessler, is that correct? A On several occasions, yes, sir. Q It was one of the aspects in agreeing to the stipulation ? A It was one. Q Mr. Litz, did you ever discuss with your client, Arico Gibson, at any time, the question of whether or not he could change the beneficiary on either of these policies? Do you remember ever talking to your client about that ? A Yes, we spoke several times about the entire matter. Q Well, what did you tell him, Mr. Litz ? A I don’t ever recall looking at the policies, but this was one of the demands or requests that the plaintiff wanted in order to wind this divorce matter up and he was willing to do anything he could, give her anything. Q In order to wind the matter up to the mutual satisfaction of both people? A That’s right. * * * Q What did he tell you and what did you tell him with respect to this matter of changing beneficiaries, just as a matter of fact? * * A As I recall, one of the stipulations or items in the stipulation that Mr. Gibson agreed to was that he would give up the change of beneficiary of one or more policies that he had to his wife in consideration of the divorce, and to maintain these policies for her benefit. This was part of our alimony. * * * Q Well, specifically, did it include — did your discussions with your client, as a matter of fact, Mr. Litz, include the Prudential policy? A It included, as I said before, a policy from Brown Shoe Company and one from The Teamsters, whichever that one went along with; that was included in the discussion. Q Whether it was from Brown Shoe Company or Teamsters 688— * * * Yes, sir.” Upon further cross-examination Mr. Litz was asked: “Q Mr. Litz, after this change was made, did you tell your client that the change was, in fact, made? A Certainly. I wouldn’t permit Mr. Kessler to make it before I checked with Gibson. Q So, on April the 5th, 1961, when according to the records of this court, this divorce was granted, which is now a final judgment, your client knew what was on this paper, Exhibit A, did he not? A Yes, and he— * * * Q He did, did he not? A Yes.”

Subsequent to the divorce Mr. Kessler evidently notified the Metropolitan Life Insurance Company of a stipulation between Arico and Venator, for on'May 26, 1961, he advised Mr. Litz that he was “receiving a little static” from Metropolitan and enclosed a waiver of right to change beneficiary form whose execution he requested Mr. Litz to procure from Arico. No mention of Prudential was made in this letter. This form was executed as requested. Upon Arico’s death the principal amount of the Metropolitan policy was paid to respondent Venator by Metropolitan. On December 28, 1964, Mr. Kessler advised Prudential that respondent Venator claimed the proceeds due under the Prudential certificate and that she intended to contest the validity of any change of beneficiary made by Arico after March 16, 1961. Accompanying this letter was a copy of the stipulation as originally drawn, i. e., without the alteration previously mentioned.

Although the alteration of the stipulation after it had been signed and delivered was irregular, the testimony of Mr. Litz establishes that Arico, being fully advised, acquiesced in the alteration of the stipulation; there was therefore a ratification by him of the change before any move was made to utilize the stipulation in any way. In addition the stipulation so altered was subsequently filed in the divorce proceeding with full knowledge by Arico of its content. Nothing in the record suggests even a hint of any sharp practice being perpetrated upon Arico. Consequently any legal strictures relating to material alteration are inapposite. It must therefore be held that the stipulation with the added words “or Prudential Life insurance or any other insurance company” constituted the contract between Arico and Venator.

There remains the problem of determining the intentions of the parties from the stipulation so amended.

Appellant’s most vigorous contention is that the stipulation filed in the divorce proceeding imposed a restriction as to a change of beneficiary on only one of the policies referred to therein. Looking to the precise wording of the stipulation we find that it refers to “policy of insurance * * * issued * * * by either the Teamster’s Local Welfare Fund or Metropolitan * * The argument of appellant rests upon the dictionary definition of “either” which appellant finds always to be given in terms of alternatives, thus, a disjunctive conjunction which implies a choice of alternatives or a disjunctive correlative indicating that what immediately follows is the first of two or more alternatives. Similarly, appellant finds that “or” is a coordinating conjunction introducing the second of two choices when the first is introduced by “either”; she also, finds that “or” is “a coordinating particle that marks an alternative, as you may read or write — that is, you may do one of the things at your pleasure, but not both.” And she finds support in the statement from Black’s Law Dictionary (4th ed) that “where the word ‘or’ is preceded by the word ‘either’, it is never given a conjunctive meaning.”

Implicit in this argument is the assumption that the stipulation gave respondent Venator the election to determine the policy of which she was to remain the beneficiary. The argument then articulates the proposition that respondent made such an election by requiring that the insured execute a waiver of his right to change the beneficiary of the Metropolitan policy. Appellant continues: “No such waiver was executed by Respondent (sic) with respect to Prudential, again clearly showing that she had made her choice by selecting Metropolitan as the one of two policies mentioned in the agreement. She gave no indication of being interested in the Prudential policy during Gibson’s lifetime after the divorce.”

To simplify the presentation: Appellant maintains that by the use of “either — or” the parties intended to require Arico to maintain one policy or another — but only one— in full force with Venator as beneficiary and that Venator should have (and did make) an election between such alternatives.

We are referred to a large number of cases dealing with the interpretation of “either . . . or” and with the interpretation of “or” standing alone, in statutes, documents and contracts. Any controversy about the meaning of such words poses the question of whether they are used in the disjunctive or in the conjunctive. The dictionary definitions of “or” which have been furnished are quite in accord with prime grammatical principles; but such definitions, stated in terms of alternatives or mutually exclusive choices, are not necessarily conclusive. In Northern Commercial Company v. United States, 9 Cir., 217 F. 33, 36, the court was furnished a disquisition relating to the grammatical construction of “or”; the court denominated the discourse “interesting and academically instructive, but where the language is ambiguous, or its meaning involved, such construction must give way to the settled rules of legal construction * * * the words ‘or’ and ‘and’ are sometimes convertible, as the sense may require.” Thus, in Ex parte Lockhart, 350 Mo. 1220, 171 S.W.2d 660, a series of propositions connected by the word “or” was held to be cumulative in effect, that is, “or” meant “and”, and it was held that all the stated propositions must be present in order to give the petitioner the privilege which an ordinance provided. The court specifically rejected the idea that alternatives were stated. In contrast, Hanley v. Carlo Motor Service Co., Mo.App., 130 S.W.2d 187, presented a situation where ‘or’ was clearly used for the purpose of stating conditions in the alternative (although not mutually exclusive alternatives) .

In Ex parte Lockhart, supra, the matter was thus put by the Supreme Court, at p. 666 of 171 S.W.2d: “The word “or” in statutes or documents is frequently interpreted to mean “and,” and this interpretation is given to it whenever required to carry out the plain purpose of the act or contract and when to adopt the literal meaning would defeat the purpose or lead to an absurd result.’ ”

Regarding the terms of the stipulation as creating an ambiguity, it is necessary to turn to the setting in which the words were used in our effort to ascertain their meaning. In interpreting an ordinance this court has spoken in terms equally applicable in principle to the interpretation of a contract :

“There can be no question as to the canons of construction in a case of this character. The primary rule to be observed is to ascertain the intention of the lawmakers, and, where the meaning of the statute is doubtful, any word rendering it so may be enlarged, restricted, or even stricken out in order to make the ordinance or statute conform to the true intent of the lawmakers.” City of St. Louis v. Consolidated Products Co., Mo.App., 185 S.W.2d 344, 346.

It is elementary that where the words of a contract create an ambiguity then, in order to ascertain the intentions of the parties, resort must be had to the circumstances surrounding the formulation and execution of the contract, the relationship of the parties, the purpose to be served, the course of negotiations if any.

Appellant’s contention that the contract, by the use of “either . . . or” in the stated context, set up a system of mutually exclusive alternatives cannot be accepted.

(1) It is clear that, when the stipulation in its original form was framed and dealt with by the attorneys of the two parties, the document embodied no concept of alternatives because the evidence shows that they acted upon the assumption that there was only one policy covering on the life of Arico and that it was a Metropolitan group policy. Since the Metropolitan policy was a group policy Mr. Kessler was uninformed as to the exact process by which some document giving coverage on the life of Arico had been issued, whether through the Teamsters Local or otherwise. Therefore paragraph 5 was so drawn as to relate to that exact one-policy coverage whether the documentation was furnished by the Teamsters Welfare Fund or otherwise. Obviously at this stage paragraph 5 was intended to relate to only one policy. In such a setting the words “either . . . or” simply indicated that that policy was to be maintained in respondent’s favor whether it was issued directly by Metropolitan or through the instrumentality of the Teamsters Welfare Fund. Such words therefore Could not have presented a set of alternatives — they did not offer alternative courses of conduct. They did not delineate choices or elections because under the circumstances a choice was impossible — one cannot choose between a single thing! “Either . or” then had no relation to alternatives; the expression’s reference was only to the source or origin of the presumed single policy covering on Arico’s life. This use of the expression removes it entirely from the area in which the dictionary definition in terms of alternatives would operate and so renders such definition irrelevant. We see in such expression only the meaning of “whether”.

(2) After the original form of the stipulation, signed by Arico Gibson, had been returned to Mr. Kessler, he was informed by his client, the respondent, that there was more than one policy giving coverage on Arico’s life. Therefore the amendment was made in the endeavor to have paragraph S relate to more than one policy. That effort was evidenced by the expedient of simply adding “or Prudential Life insurance or any other insurance company”.

Mr. Litz testified that one of the demands made by Venator for settling the divorce matter was the inclusion of the Prudential policy in the stipulation and that Arico was willing to give her “anything” in order to wind up the divorce proceeding and that he was to “maintain these policies for her benefit”. He added, significantly, “this was part of our alimony”.

In this setting it would be difficult to interpret the amended recitation of policies as requiring Arico to maintain only one in favor of Venator. There is clearly evidenced an intention to have the stipulation cover any policy issued to Arico as an employee of Brown Shoe Company (“or any other insurance company”) and we do not believe that the ambiguous “either . or” as first used in the original form of the stipulation can be allowed to limit the duty of Arico to maintain life insurance for Venator’s benefit. Considering the whole of the amended stipulation in the setting in which we find it, we reach the conclusion that the contract meant that Arico was to maintain in her favor any policy of insurance issued to him as an employee of Brown Shoe Company whether issued “by Teamster’s Local Welfare Fund or Metropolitan Life Insurance Company or Prudential Life Insurance or any other insurance company.”

Finding that the contract obligated Arico to maintain for Venator’s benefit any policy issued to him as an employee of Brown Shoe Company, we proceed to consider the legal position of Venator relative to the policy in question. Where the insured upon taking out a policy of insurance has by its terms reserved the right to change the beneficiary, it is the conventional thing to say that the named beneficiary has only a contingent interest in the policy, an interest which can be extinguished by the exercise of the insured’s reserved power to change the beneficiary. We find a limited amount of authority relating to the changed situation here presented, namely, a contract made with a beneficiary obligating the insured to maintain a present policy in full force and effect for the benefit of that presently named beneficiary. In California it has been clearly held that by such a contract the contingent interest of the beneficiary is converted into a vested equitable interest in the policy. Mutual Life Insurance Co. of New York v. Franck, 9 Cal.App.2d 528, 50 P.2d 480. Reaching the same result, another case explained that the quality of the beneficiary’s interest was changed by such a contract. Shoudy v. Shoudy, 55 Cal.App. 344, 203 P. 433. The precise nature of a “vested equitable interest” is not delineated by these cases; full analysis of the legal position of the beneficiary is not indulged. These cases state that the vested equitable interest may not be subsequently defeated by an effort to change the beneficiary without the consent of the contracting first beneficiary. Considering the results which are deemed to flow from the finding of “vested equitable interest”, it is plain that the holdings in these cases proceed upon the basis of a property concept and not simply upon breach of contract, that is, that the contracting first beneficiary, as between herself and the insured or a volunteer, acquires some kind of property interest in the res itself, namely, in the contractual promise made by the insurance company to pay so many dollars upon the death of the insured. The Supreme Court of Pennsylvania has followed the property concept and has analogized the first beneficiary’s position to that of an equitable assignee; in explaining the law of that state, the court said:

“The law appertaining to the equitable assignment of the benefits of an insurance policy is well settled in this state. There is no doubt that a beneficiary named pursuant to a definite agreement that he shall be so named, by virtue of a valuable consideration moving from him, acquires a right to the policy or the proceeds thereof that will be protected against subsequently named beneficiaries who have no superior equity.” Visnik v. Mance, 326 Pa. 399, 191 A. 127, 129.

Subsequently in a case whose facts precisely parallel those of our present case, the Pennsylvania court said: “Our cases have uniformly recognized that a contract not to change the beneficiary, entered into by an insured and his designated beneficiary for a valuable consideration, is binding as between the insured, or his volunteer, and the contractually determined beneficiary and will be enforced in equity.” Hundertmark v. Hundertmark, 372 Pa. 138, 93 A.2d 856, 858.

In Campbell v. Prudential Insurance Co., Ohio App., 137 N.E.2d 515, 73 Ohio Law Abst. 262, the Ohio Court of Appeals took the estoppel route to invalidate the insured’s attempt to make his second wife the beneficiary. His violation of contract was held to be utterly without effect unless an innocent party was misled or damaged by some action of the first beneficiaries.

It is our considered opinion that the contracting first beneficiary, as between herself and the insured (or a volunteer), acquires a property interest in the subject policy which is superior to that of the insured or the volunteer. For the purpose of decision in this case it is not necessary to classify that property interest in one of the conventional categories. If the obligation to maintain the policy in favor of the contracting first beneficiary is to be treated as analogous to a contract to assign the policy that interest must be labeled an equitable one as has been done in the cited California cases. As an equitable interest in a particular res it is subject to being divested (although denominated a vested equitable interest) by the intervention of a superior equity in accordance with the accepted principles of equity jurisprudence. In the present case there is no competing equity of a superior kind.

In this litigation the respondent has pursued her asserted interest in a specific res. She does not sue for breach of contract. In our opinion she has established that her property interest in that res came into existence years ago. The combined interests of the two litigants here would completely exhaust the specific res. In this proceeding the first wife endeavors to reduce to possession that which is clearly hers. Under such circumstances there was no occasion for her to join as a party the personal representative of the deceased insured.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, judgment is affirmed.

ANDERSON, P. J., and RUDDY and WOLFE, JJ., concur.

      . The stipulation provided for alimony and in addition constituted a property settlement agreement, in which, inter alia, the parties disposed of items of household goods.

      . Similarly in Spillman v. Succession of Spillman, 147 La. 47, 85 So. 489, a series of conditions connected by the word ‘or’ was held to be cumulative in effect, that is, that “or” meant “and”, and it was there held that all such conditions must be present in order to invoke the benefit of a statute.

      . The stated principle has of course no application where the contract provides merely for the maintenance of a specified amount of insurance without description of a particular policy. Jacoby v. Jacoby, 69 S.D. 432, 11 N.W.2d 135.

      . It should be noted that in these cases the subsequently named beneficiary was not a bona fide purchaser for value and was not possessed of any other equity of a superior nature, a matter adverted to hereinafter.

      . Thomson v. Thomson, 156 F.2d 581, 585 (8th Cir.) states that “as against the insured or his estate she [the contracting beneficiary] acquired a vested right notwithstanding the fact that the policy by its terms reserved to the insured the right to change the beneficiary.”

      .In this separation and property agreement the insured husband contracted with the first wife to maintain his insurance for the benefit of their children; the agreement was incorporated in the divorce decree, but no emphasis was placed upon that fact In Ehrlich v. Cohn, 1 A.D.2d 1004, 151 N.Y.S.2d 802 (affirmed 2 N.Y.2d 886, 161 N.Y.S.2d 143, 141 N.E.2d 627), on similar facts it was held that the children acquired an equitable interest in the policy superior to that of the second wife.

      . Cf. Locomotive Engineers Mutual Life and Accident Assn. v. Locke, 251 App.Div. 146, 295 N.Y.S. 689, affirmed 277 N.Y. 584, 13 N.E.2d 781.