author: MANFORD, Judge.

text:
    Theodore COLLIER, Respondent-Plaintiff, v. CONSOLIDATED CAB CO., INC., Defendant, and J. D. Williams, Appellant-Defendant, City of Kansas City, Missouri, Appellant-Intervenor, and Traders National Bank, Respondent-Garnishee.
    No. KCD 30465.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.

      Aaron A. Wilson, City Atty., Nordahl E. Holte, Asst. City Atty., Kansas City, for appellant-intervenor, City of Kans. City, Mo.
    Allan R. Browne, Ennis, Browne & Jensen, Kansas City, for appellant-defendant Williams.
    Dean A. Hodapp, Blumer & Nally, Kansas City, for respondent-plaintiff Collier.
    Myron S. Silverman and Dennis E. Egan, Gage & Tucker, Kansas City, for respondent-garnishee Traders Nat’l Bank.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

This action originated as a suit for damages for fraud. Entry of default judgment was made against respondents Consolidated Cab Company, Inc. and J. D. Williams. Garnishment in aid of execution was instituted by plaintiff. Garnishee filed a petition in interpleader. The City of Kansas City, Missouri was granted leave to intervene. The parties agreed, by stipulation of record, that the cause could be submitted upon the pleadings and documents of record without additional evidence, and that the garnishee was entitled to its out-of-pocket expenses in the sum of $2,500.00. The trial court entered its memorandum and order that funds in the possession of the garnishee were subject to execution by way of garnishment and that those funds were to be paid over to the registry of the court, and further that the Court Administrator be ordered to pay over to the plaintiff-respondent those monies less the sum of $2,500.00 allowed to garnishee for its expenses. This order of the trial court was dated August 11, 1978. On August 28, 1978, the trial court entered another order acknowledging garnishee’s payment of the funds over to the registry of the court and that as authorized, the garnishee had deducted its expenses in the sum of $2,500.00. The order then discharged the garnishee as a party to this action.

This appeal followed and relates only to the trial court order of August 11, 1978. The order of the trial court, for purposes of this appeal, was a final judgment. The . matter was tried before the court upon pleadings and documents. The review by this court, therefore, is made pursuant to Rule 73.01 and under the rule in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

Disposition of this appeal necessitates reiteration of the facts and the procedural transactions as instituted by the parties. For purposes of clarity, the parties are referred to under their trial court party designation.

The plaintiff was a former employee of defendants. The defendants deducted certain monies from plaintiff’s wages as contribution toward the purchase and maintenance of health insurance coverage to the benefit of the plaintiff. Defendants permitted the group insurance coverage to lapse, but continued to deduct contributions from plaintiff’s wages.

Plaintiff became ill and required medical and hospital care. It was determined he was afforded no health insurance because such coverage had lapsed due to the action of defendants. Plaintiff sued defendants for fraud and secured a default judgment against the defendants in the sum of $37,-546.00. The judgment was for $12,546.00 in actual damages and $25,000.00 in punitive damages. The date of this judgment was January 31, 1974.

Separate defendant J. D. Williams was the sole owner of Consolidated Cab Company and the majority stockholder in Consolidated Cab Company, Inc. It should be noted that plaintiff’s judgment was against individual defendant J. D. Williams and Consolidated Cab Company, Inc., not Consolidated Cab Company. While it has no direct bearing on the disposition of this appeal, it is worthy to point out that Consolidated Cab Company, Inc. was declared a bankrupt ten days before the original filing of this action.

Following the entry of the original judgment for plaintiff under date of January 31, 1974, plaintiff caused garnishment in aid of execution on said judgment to issue to garnishee. Interrogatories were filed by plaintiff upon the garnishee. The garnishee filed its answers to the interrogatories and the answers pertinent to this appeal and entered of record are as follows:

“1. At the time you were summoned as Garnishee, had you in your possession, custody or charge, or under your control, or have you since that time had possession or charge of or under your control, any goods, chattels, property, money, credits or effects belonging to the defendant Consolidated Cab Company, Inc.? If so, state what they were and are, in what amounts, and how they came into your possession, custody, control or charge.

ANSWER: No.

2. At the time you were summoned as Garnishee, had you in your possession, custody or charge, or under your control, or have you since that time had possession or charge of or under your control, any goods, chattels, property, money, credits or effects belonging to the defendant J. B. [sic] Williams? If so, state what they were and are, in what amounts, and how they came into your possession, custody, control or charge.

ANSWER: No.

3. At said time, were you or have you since become, or are you now in any wise indebted to the defendant, Consolidated Cab Company, Inc.? If so, state in what amount, in what manner the debt accrued, whether the debt is now due, and if not yet due, when it will become due.

ANSWER: No. See further answers attached hereto.

4. At said time, were you or have you since become, or are you now in any wise indebted to the defendant, J. B. [sic] Williams? If so, state in what amount, in what manner the debt accrued, whether the debt is now due, and if not yet due, when it will become due.

ANSWER: No. See further answers attached hereto.

5. If any such debt as described in the preceding Interrogatories are evidenced by an instrument in writing, describe the same and state the location of the instrument, or attach a copy of the instrument to your answer. Also, state whether to your knowledge such instrument was in the possession of or under the control of the defendants or their agents when you were summoned as garnishee, and whether it has since come into the possession of or under the control of either of them.

ANSWER: The agreement between Kansas City, Missouri, a municipal corporation, and J. D. Williams, doing business as Consolidated Cab Company, Inc., agreed to by Traders National Bank as designated depository is attached hereto.

* * * ⅜ * ⅜

9. For further answer to said interrogatories, Traders National Bank, garnishee, pursuant to the directions of Kansas City, Missouri, a municipal corporation, was designated as a depository under the terms of the Taxicab Ordinances of Kansas City, Missouri, of the sum of $20,000.00 made by J. D. Williams, doing business as Consolidated Cab Company, Inc., on October 7-12, 1976!

The depositor as a sole proprietor d/b/a Consolidated Cab Company, is not a corporation and is a different legal entity from Consolidated Cab Company, Inc., against which plaintiff Theodore Collier obtained a default judgment on January 31, 1974.

* * * * * * •

For further answer, Traders National Bank, garnishee states that the fund held by it in trust as depository is payable only by direction of Kansas City, Missouri, under the Taxicab Ordinances which limit payments which may be made solely to ‘damages on account of injury, death or property damages resulting from the ownership, maintenance, use or operation of any taxicab arising by reason of the carelessness or negligence of the operator or driver of such taxicab’.

Garnishee states that the judgment obtained by fraud is not of the kind or character to which the ordinance is applicable and the City of Kansas City, Missouri will not authorize or divert payment from said fund for plaintiff’s judgment as shown by letter from Nordahl Holte, Esq., Assistant City Attorney, Attachment 2, hereto.”

As can be readily ascertained, the garnishee, in answer to interrogatory no. 5, refers to an agreement between defendant J. D. Williams, Consolidated Cab Company, Inc. and intervenor, City of Kansas City, Missouri. This agreement is part of the record herein as Exhibits A and B and represents the original savings account ledger card between defendant J. D. Williams, Consolidated Cab Co., Inc. and garnishee (Exhibit A) and a second savings account ledger card between the same parties (Exhibit B). Exhibit A was superceded by Exhibit B under date of May 11, 1977. Both Exhibit A and Exhibit B were typical savings account ledger cards. Both such cards carried on their face, regarding the designation as to the type of account, the following:

[3 Individual

D Joint

□ Other”

The cards carried in typewritten form the following language on the face thereof:

“This account represents self insurance for the Consolidated Cab Co. and may not be disposed of in any way without written agreement from the Commissioner of Revenue of K. C., Mo., J. D. Williams-Consolidated Cab Co.” (Exhibit A)
“This account represents self insurance for Consolidated Cab Co. and may not be disposed of in any way without the written agreement from the Administrator of Taxicabs and Livery Vehicles.” (Exhibit B)

Both cards, on the face thereof, carried typewritten language that the interest on said account was to be paid to defendant J. D. Williams.

On Exhibit A, which carried the account opening date of October 7,1976, the sum of $18,500.00 was shown as the opening balance. On Exhibit B, no balance was shown.

Plaintiff filed a denial to the garnishee’s answers to interrogatories.

Under the answer to interrogatory no. 9, it should be noted the garnishee answered that it was holding the sum of $20,000.00 under the terms of the Taxicab Ordinances of the intervenor, the City of Kansas City, Missouri.

Garnishee next filed a reply to plaintiff’s denial of garnishee’s answers, admitting to the deposit of $20,000.00 by defendant J. D. Williams and the fact that said account was earning interest, but denied that the deposit was subject to garnishment by plaintiff. Garnishee then filed a petition for inter-pleader.

Intervenor, the City of Kansas City, Missouri, then filed its petition to intervene as' a defendant in the case, asserting that said deposit was not subject to plaintiff’s action in garnishment because said deposit was made pursuant to § 33.62 and other sections of the Revised Ordinances of Kansas City, Missouri.

Following the above, the parties entered into a brief stipulation that judgment could be entered from the pleadings and exhibits attached to those pleadings.

At this juncture, it is necessary to point out the relative positions of the parties as those positions relate to the funds on deposit.

Plaintiff maintained he was a judgment creditor and the fund was subject to general execution. Garnishee maintained the funds on deposit were not reachable by general execution because they were deposited under an agreement between the defendants and the intervenor-city. Interve-nor-city maintained the same posture as the garnishee.

It should be pointed out that prior to filing its answers to interrogatories, the , garnishee had secured a letter from an assistant-city attorney for intervenor, directing that the garnishee not pay the monies over to plaintiff as those monies were on deposit pursuant to § 33.62 and § 33.67 of the Revised Ordinances of Kansas City, Missouri. Thus, with the filing of the answers to interrogatories by garnishee, the denial of those answers by plaintiff, a reply to that denial by garnishee, the petition to interplead and the petition to intervene, the issues between the parties became joined.

Since the garnishee and the intervenor postulated their original positions upon the requisites of the city ordinances, those pertinent ordinances are listed below.

“ARTICLE IV. BONDS, INSURANCE, CASH or COLLATERAL DEPOSITS

Sec. 33.62. Required.

It shall be unlawful to operate a taxicab, as defined in this code, or permit the same to be operated, nor shall any permit be issued hereunder, until and unless the applicant for such permit, ⅛ addition to all other requirements set forth in this code, shall file and maintain with the administrator, for each taxicab to be operated, either a bond, policy of liability insurance, deposit of cash or collateral in lieu of bond or insurance, or a deposit of cash or collateral and a policy of liability insurance.

Sec. 33.63. Requirements of liability insurance policy — Amount, conditions.

The policy or certificate of liability insurance required by section 33.62 shall be issued .by a company authorized and licensed to do an insurance business in the state, for each taxicab for which a permit is sought, acceptable to and approved by the administrator and approved as to form by the city attorney, indemnifying the applicant in the sum of at least ten thousand dollars ($10,000.00) for injury to, or death of, one person, by reason of the carelessness or negligence of the driver or operator of such taxicab, and twenty thousand dollars ($20,000.00) for injury to, or death of, more than one person, resulting from a single accident, by reason of the carelessness or negligence of the driver or operator of such taxicab, and five thousand dollars ($5,000.00) for damage to property, including baggage or other property, of a passenger carried in or on said taxicab, resulting from any single accident, by reason of the carelessness or negligence of the driver or operator of such taxicab. The said policy shall further contain a clause obligating the insurance company to give twenty (20) days’ written notice to the administrator before cancellation of the said policy, and the permit shall expire upon the lapse of said policy or certificate, or termination of the same by cancellation, unless within said twenty (20) days, in case of notice of cancellation by the insurance company, the holder of a permit, shall furnish another policy acceptable to the administrator or comply with the provisions of sections 33.65 and 33.66 or sections 33.67 through 33.71 inclusive.

Sec. 33.64 Same — Endorsement.

There shall be attached to all liability insurance policies, issued pursuant to the requirements of this code, the following endorsement, to-wit:
In consideration of the premium stated in the policy to which this endorsement is attached, the company hereby waives a description of the motor vehicles to be insured hereunder and agrees to pay any final judgment for personal injury, including death resulting therefrom, or damage to property, caused by any and all motor vehicles operated by the assured pursuant to the taxicab permit issued by Kansas City, Missouri, within the limits set forth in the schedule shown hereon, and further agrees that upon its failure to pay any such final judgment, the judgment creditor may maintain an action in any court of competent jurisdiction to compel such payment. Nothing contained in the policy or any endorsement thereon, nor the violation of any of the provisions thereof by the assured, shall relieve the company from liability hereunder or from the payment of such judgment; attached to and forming a part of policy number— issued hv to

Sec. 33.65. Requirements of bond.

The bond required by section 33.62 shall be with a solvent and responsible surety company authorized to do business under the laws of the state, as surety thereon, acceptable to the administrator and approved as to form by the city attorney, conditioned that the applicant |will pay all final judgments recovered against such applicant for injury to, or death of, one person, by reason of the carelessness or negligence of the driver or operator of such taxicab, up to the sum of ten thousand dollars ($10,000.00) and twenty thousand dollars ($20,000.00) for injury to, or death of, more than one person, resulting from a single accident, by reason of the carelessness or negligence of the driver or operator of such taxicab, and five thousand dollars ($5,000.00) for damages to property, including baggage or other property of a passenger carried in or on any such taxicab, resulting from any single accident by reason of the carelessness or negligence of the driver or operator of such taxicab; provided that an applicant seeking a permit to operate not more than fifteen (15) taxicabs may file a bond of forty thousand dollars ($40,000.00); for more than fifteen (15) and not more than twenty-five (25) taxicabs a bond of fifty thousand dollars ($50,000.00); for more than twenty-five (25) and not more than fifty (50) taxicabs a bond of sixty thousand dollars ($60,000.00); for more than fifty (50) and not more than one hundred (100) taxicabs a bond of eighty thousand dollars ($80,000.00); for more than one hundred (100) and not more than one hundred fifty (150) taxicabs a bond of one hundred thousand dollars ($100,000.00); for more than one hundred fifty (150) and not more than two hundred (200) taxicabs, a bond of one hundred twenty thousand dollars ($120,000.00); and for more than two hundred (200) taxicabs, a bond of one hundred fifty thousand dollars ($150,000.00). Said bond shall contain a further provision obligating the surety company to give twenty (20) days’ written notice before a cancellation by the surety of the said bond to the administrator, and the permit to operate a taxicab shall expire on the lapse of said bond or termination of the same by cancellation unless within said twenty (20) days, in case of notice of cancellation by a surety, an applicant shall furnish another bond in conformity herewith, acceptable to the administrator and approved as to form by the city attorney or comply with the provisions of sections 33.63 and 33.64 or sections 33.67 and 33.71.

Sec. 33.66. Continuing liability under bond or insurance; insufficient bond, policy.

The bond or policy of insurance required by section 33.62 shall contain a provision for continuing liability thereunder to the full amount thereof, notwithstanding any recovery thereon. If, at any time, in the judgment of the administrator, such bond or policy is deemed insufficient for any cause, the administrator may require the owner of such taxicab to replace such bond or policy with another, to be approved by the administrator.

Sec. '33.67. Cash, collateral or combination of cash, collateral and insurance in lieu of bond or insurance — Deposit authorized.

(a) In lieu of the surety bond or policy or certificate of insurance required by section 33.62 the applicant may enter into an agreement with the city, to be prepared to the satisfaction and approval of the city attorney, that such applicant shall pay all final judgments recovered against either the applicant or the driver of such taxicab, or both, within the limits set forth in this section. Such limits shall be construed, however, to limit the liability of such applicant, or the driver of a taxicab, only for the purposes of such agreement. Such agreement shall be secured by the deposit by the applicant of cash, or obligations of the United States Government, which shall be in an amount equal to fifty percent (50%) of the amount of the bond required by section 33.65; provided that if by reason of the diminishing of or lack of financial responsibility of the applicant, or the number of unpaid final judgments obtained against such applicant (or for any other cause) the administrator shall deem such deposit of cash or collateral to be insufficient, he may require the owner of such taxicab to J increase such deposit by such amount as the administrator, within his reasonable discretion, shall deem sufficient to protect the public interest. The decision of the administrator with reference to the deposit of additional case or collateral shall be final as to and conclusive upon such applicant.
(b) The applicant may satisfy the requirements of section 33.62 and of this section by entering into an agreement with the city, as hereinabove provided, and by depositing to secure such agreement cash or obligations of the United States Government, which shall be in an amount equal to twenty-five percent (25%) of the amount of the bond required by section 33.65; and by delivering to the city a policy or certificate of liability insurance in accordance with the provisions of sections 33.63 and 33.64 hereof, indemnifying the applicant in the sum of at least five thousand dollars ($5,000.00) for injury to or death of one person by reason of the carelessness or negligence of the driver or operator of such taxicab, and ten thousand dollars ($10,000.00) for injury to or death of more than one person, resulting from a single accident by reason of the carelessness or negligence of the driver or operator of such taxicab, and three thousand dollars ($3,000.00) for damage to property, including baggage or other property of a passenger carried in or on said taxicab resulting from any single accident by reason of the carelessness or negligence of the driver or operator of such taxicab. The said policy shall in all other respects conform to all the requirements , of sections 33.63 and 33.64 hereof.

Sec. 33.68. Same — Agreement to be filed with administrator and depository.

The cash or government obligations provided for in section 33.67 shall be deposited by the applicant or holder of a permit in such bank in the city as may be designated by the administrator as depository to receive such deposits, as collateral security for the faithful performance of the aforesaid agreement. The applicant, or holder of a permit, shall file with the administrator and said bank has his written authorization, executed in duplicate, wherein he shall expressly agree that if any court, or the clerk thereof, shall certify to the administrator and to said depository that such applicant or holder of a permit has failed to satisfy within thirty (30) days any final judgment of said court upon which execution has been lawfully issued, for damages on account of bodily injury, death or property damage resulting from the ownership, maintenance, use or operation of any taxicab of such applicant or holder of a permit,,.such cash or government obligations so deposited shall, to the extent of ten thousand dollars ($10,000.00) for injury or death of one person and twenty thousand dollars ($20,-000.00) for the injury or death of more than one person, and five thousand dollars. ($5,000.00) property damage arising out of any one accident, by reason of the carelessness or negligence of the operator or driver of such taxicab, be applied by said depository upon the written order of the administrator, to the satisfaction of said judgment; and agreeing that for that purpose any government obligations so deposited may be sold and converted into cash by said depository at its market price, and that any cash excess from the proceeds of such sale shall remain with said depository as collateral security aforesaid; and agreeing to pay any charge made by the depository for the handling of such deposit. In the event said applicant or holder of a permit shall fail to perform the aforesaid agreement with the city, referred to in section 33.67, said deposit of cash or government obligations shall be used and applied by the administrator and said depository to the satisfaction of said judgment, in accordance with the terms and subject to the limitations of said written authorization.

Sec. 33.69. Same — Payment of interest.

So long as a depository has received no written notice of default by an applicant or holder of a permit in the faithful performance of his agreement with the city referred to in section 33.68, such applicant or holder of a permit shall be entitled to receive, and said depository shall pay to him, if, as, and when collected by it, all interest from time to time accruing upon any government obligations deposited as herein provided.

Sec. 33.70. Cancellation of bond or insurance on substitution of deposit.

If any applicant or holder of a permit, having deposited a bond under section 33.65 or a policy or certificate of liability insurance under sections 33.63 and 33.64, shall elect to substitute in lieu thereof the agreement and make the deposit of cash or government obligations as provided by section 33.68, he shall be entitled to effect a cancellation of such bond, policy or certificate of liability insurance as of the date of such substitution and deposit.

Sec. 33.71. Return of cash or collateral to depositors.

In case an applicant or holder of a permit after making a deposit of cash or government obligations, as provided in section 33.62 and section 33.67, shall discontinue the operation of taxicabs and retire from the taxicab business in the city, or in case he shall, with the consent of the administrator, substitute in lieu of said agreement a bond in accordance with section 33.65 or a policy or certificate of liability insurance in accordance with sections 33.63 and 33.64, an appraisal shall thereupon be made by the administrator and said applicant or holder of permit, of all outstanding and unpaid claims pending against such person, and a sufficient amount of such cash or government obligations so deposited shall be obtained by the depository as, in the reasonable discretion of the administrator, shall be reasonably sufficient to guarantee payment of such claims. The balance of such deposit shall thereupon be returned to the person making such deposit by said depository, upon the order of the administrator, and thereafter the balance of such fund shall, from time to time as claims are reduced, be returned by said depository to the person making such deposit on the order of the administrator, in proportion to the amount that it shall be shown to said administrator that such claims have been paid, or satisfied, or have been reduced, dropped or abandoned. In case of dispute over such appraisal between the person making such deposit and the administrator, the dispute shall be informally submitted for arbitration to the then assigned judge of the circuit court of the county, in the city, and the decision of such judge thereon shall be final and binding upon all parties.”

Also, by record, was a document captioned, “Inter-Departmental Communication” from L. B. Bennett, Commissioner of Revenue (for intervenor-city) to the inter-venor’s file. The date of this communication was 10-12 — 76 and was marked as Exhibit A — 1. It reads as follows:

“Today, October 12, J. C. Williams deposited $20,000.00 in cash in an account in the name of J. D. Williams d/b/a Consolidated Cab Company in the Traders National Bank, Kansas City, Missouri.
The above deposited funds represents an amount necessary for self-insurance for the Consolidated Cab Company. As long as the $20,000.00 remains intact, Mr. Williams may keep 15 cabs operating as the Consolidated Cab Company. Should he be required to pay out some of these funds he must replenish.that amount or cease doing business.
Mr. Williams has been made aware of this fact and understands it and stated that he will comply with the requirement. It is understood that the interest earned by the $20,000.00 deposited in the Traders National Bank savings account is to be given to Mr. Williams each year but that he may not withdraw any of these funds for any reason without permission and cooperation with the Commissioner of Revenue of Kansas City, Missouri.”

Faced with the foregoing evidence, the trial court entered its memorandum and order concluding in summary that § 33.67, 33.68 and 33.69 of the Revised Ordinances of Kansas City, Missouri are the applicable ordinances towards a resolution of the issue. The court further concluded that neither the intervenor nor the separate defendant J. D. Williams complied with the ordinances. It was further concluded by the trial court that as claimed by the interdepartmental communication (Exhibit A-l), separate defendant J.' D. Williams did not deposit the sum of $20,000.00 with the garnishee. The trial court also concluded that separate defendant J. D. Williams did not enter into an agreement with the interve-nor-city as required by § 33.67 of the Revised Ordinances of Kansas City, Missouri. The court went on to conclude that from the evidence, it could not be found that separate defendant J. D. Williams deposited the funds, which were in dispute, with the garnishee in compliance with the city ordinances and hence, the intervenor-city acquired no control whatsoever over the funds.

From that ordér, this appeal followed. With respect to the parties, their respective roles and piosture on the issues remain the same except for the garnishee, who on this appeal, is a respondent.

Appellants contend the trial court erred because the order was not supported by any substantial evidence. They also contend that the trial court erred in not finding there was a trust fund, pursuant to the Revised Ordinances of Kansas City, Missouri, limiting payment from the fund only upon the directions from the Administrator of Taxicabs and Livery Vehicles and only for the limited use in paying damages arising from and out of the use and operation of defendants’ taxicabs.

As is shown, separate defendant, J. D. Williams, and intervenor-city, City of Kansas City, Missouri, have joined on this appeal.

Respondents’ filed separate briefs. The plaintiff-respondent argued that the trial court’s findings, in all respects, were correct. The garnishee-respondent on appeal, in addition to arguing there is no jurisdiction on appeal over the garnishee by virtue of the second order of the trial court striking garnishee as a party to the suit, (there was no appeal from this second order), proceeded to argue support for the trial court order in that a trust fund did not arise in conformity with the city ordinances.

Review of the matter is made by this court and the judgment of the trial court must be affirmed unless it is found that there is no substantial evidence to support the judgment, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Garron, supra.

Review of all pleadings and documents of record leads this court to conclude the judgment of the trial court is against the weight of the evidence and must be reversed.

The trial court concluded erroneously that no agreement had been entered into as between defendant J. D. Williams and intervenor-city for lack of compliance with the ordinances of the city. Under date of October 12,1976, just such an agreement was acknowledged by the interdepartmental memorandum or interdepartmental communication of the city. It is correct, as the trial court pointed out, that this memorandum or communication alluded to the deposit of $20,000, when in fact the evidence reveals only a deposit of $18,500. This only serves to point out that defendant Williams had not, as of that date, fully complied with the requisite deposit of $20,000 as it relates to the total sum in dollars. On the other hand, it is substantial evidence to establish an agreement between intervenor-city and J. D. Williams for purposes of creating a deposit for a specific purpose. Upon the point of the sum of money, however, the garnishee’s answers to interrogatories revealed a sum total of $20,000.

At the same time, the depository (garnishee herein) had placed upon the face of the account cards restrictive language limiting disbursement of any of the monies in the account without the written agreement of the proper authority from and on behalf of the intervenor-city.

The evidence of record shows that while perhaps no written agreement as referred to in the ordinance had been reached, and no written approval had been authorized by the authority designate of the intervenor-city, the parties, defendant J. D. Williams and intervenor-city, had, in fact, entered into an agreement. This agreement was that defendant Williams deposit funds with an authorized bank for the purpose of making restitution for damages caused by the operation of taxicabs upon the streets of Kansas City. There was, as the evidence shows, a substantial compliance with the. ordinance and the only proper inference which can be drawn from the evidence is that the deposit made by Williams was for a special purpose. The special purpose in the instant case was for purposes of reimbursement for damages caused by or produced by and as a result of the negligent operation of taxicabs in and throughout the municipal confines of the intervenor-city. It follows that because it was a deposit for a specific purpose, the account was not subject to general execution, and it was error for the trial court to have so concluded.

There appears to be no Missouri decision directly on point as it relates to the particular facts of this case. This necessitates a brief reference to the nature of deposits and the applicability or nonapplicability of garnishment in aid of execution relative to such accounts.

Bank deposits fall into three general categories or selections. The first of these, the most common, is the general deposit. Such deposit has been defined as, “. . . one to the general credit of the depositor, wherein title to the money passes to the bank and it becomes the debtor of the depositor with the obligation to repay such money in current funds on the depositor’s order or demand.” 9 C.J.S. Banks and Banking § 273 (1938) at . 556.

The second form or category of deposits is the special deposit defined broadly as “. . . a delivery of money or other property to a bank for safe-keeping and return in kind. Title to the thing deposited remains in the depositor, and the bank becomes his agent, bailee, or trustee.” 9 C.J.S. Banks and Banking § 274 (1938) at 562.

The third class or category of deposit is designated deposits for specific purpose. In general, a deposit for specific purpose is defined as follows: “A delivery of money or property to a bank for application to a particular specific purpose is not a general deposit, nor is it, strictly speaking a ‘special’ deposit as that term is usually employed, but ordinarily it partakes of the nature of a special deposit in that title to the thing remains in the depositor and the bank becomes an agent, bailee, or trustee and not a debtor.” 9 C.J.S. Banks and Banking § 275 (1938) at 570.

It is within this last definition that the funds pertaining to the case at hand fall.

The evidence shows defendant Williams, as a prerequisite to operating taxicabs upon the streets of intervenor-city, was required, in lieu of liability insurance, to place on deposit specified sums of money as reimbursement for damages for and as the result of the negligent operation of his taxicabs. The evidence further reveals defendant substantially complied with that prerequisite, the garnishee bank acknowledged such restriction by the typing upon the account card and further still, the evidence reveals the intervenor-city, by interdepartmental communication, acknowledged the limited deposit by defendant Williams.

In dealing with this question, our own courts appear to have combined the elements of deposits for a special purpose and special deposits, thus creating a broad category of special deposits. It has been held that, “Unless the deposit be special, such as a trust fund with the bank, or something kindred thereto, the deposit is general. In this connection plaintiff asserts there are three general classes of special deposits, namely: ‘(1) Where money or other thing is deposited with the understanding that that particular money or thing is to be returned to the depositer; (2) where the money or thing deposited is to be used for a specifically designated purpose; (3) and where the deposit itself was wrongful or unlawful.’ ” Fred A. Boswell Post, Etc. v. Farmers’ State Bank, 61 S.W.2d 761, 762 (Mo.App.1933).

The Boswell case addressed the question of priority of accounts upon the financial collapse of the bank and by its nature, is not controlling herein.

While no specific precedent is to be found within our own state, three additional cases must be referred to to illustrate the approach to the question by our courts.

In Vandivort v. Sturdivant Bank, 77 S.W.2d 484 (Mo.App.1934) (approved in Security National Bank Savings & Trust Co. v. Moberly, 340 Mo. 95, 101 S.W.2d 33 [1936]), the court declared at page 487:

“Whether or not the bank in fact commingles the deposit with its general funds and uses it as its own is not determinative of the right or not of the depositor to claim the deposit as a special deposit, but it is the right or not of the bank to so commingle and use the deposits that is determinative. If when the deposit is made there is an agreement, express or implied, that it shall not be commingled with the other assets of the bank and used as its own, but shall be kept intact as a separate deposit for a specific purpose, this constitutes a special deposit, and the fact that the bank without right commingles the deposit with its other assets and uses it as its own, so that it . cannot thereafter be traced arid identified, does not defeat the right of the depositor to have the amount of the deposit out of the assets of the bank.”

While the Sturdivant case, in dealing with creditor claims against an insolvent bank defines the protected right of depositors for a special purpose, it does not directly reach the precise point in our case at hand. In the present case, it mattered little that monies might be commingled, but rather the precise nature or classification of the deposit is the question needful of being resolved.

Another case involves the liquidation of one bank, its takeover by a successor bank and the issue of insurance proceeds payable upon an act of burglary. The courts wrestled with the problem of special deposits. In American Surety Co. v. Normandy State Bank, 237 Mo.App. 39, 167 S.W.2d 436 (1943), we find a case where the State Bank of Anglum (St. Louis County) purchased a policy of insurance against loss by burglary. Subsequently, but while the policy of insurance was in full force, the Bank of Anglum was taken over by the State Commissioner of Finance for purposes of liquidation. The Normandy Bank was named as special deputy commissioner in charge of the affairs of the Bank of Anglum. The policy of insurance was modified, naming the Normandy Bank as the insured. A burglary at the Normandy Bank occurred. The question then facing the court was whether the funds previously deposited in the Bank of Anglum became the property of the Bank of Normandy. To phrase the question yet another way, were the monies held previously by the Bank of Anglum and later taken over by the Normandy Bank special or general deposits? In its ruling, the court stated, at 441-442:

“It must be remembered that the commissioner of finance in charge of the affairs of an insolvent bank acts in an official capacity and under the supervision and direction of the court and the funds in his hands as commissioner when deposited in another bank by him are not subject to be checked out as in the case of ordinary deposits. In respect to the disbursement of the funds so deposited he is under the direction and supervision of the court .
Moreover, in this case all the parties concerned treated the fund deposited with the defendant bank as a trust fund belonging to the Anglum Bank. This they did by having the fund insured as the fund of the Anglum Bank. They thus evidenced an understanding that the title to the fund remained in the defendant bank in its official capacity as special deputy commissioner.”

While the American Surety case is not dispositive of the case herein, it sheds light upon the question of deposits for a specific purpose.

In concluding the evidence in the case herein established a deposit for a specific purpose, no violation of the principles enunciated in the foregoing cases is created.

Absent specific precedent within the rulings of our own court, we look to other jurisdictions and as to how they have disposed of the issue. In 9 C.J.S. Banks and Banking, § 275 (1938) at 570-571, we find:

“A specific deposit, or deposit for a specific purpose, consists in the delivery of money or property to a bank for application to a designated object or a defined purpose . . . ”

It appears the factual situation of the case at hand falls precisely within the foregoing definition. As regards interpretation of that definition from other jurisdictions, see Bank of West Orange v. Associates Discount Corporation, 197 So.2d 858 (Fla.Dist.Ct.App. 1967) where the court held, “The purpose and terms of a special deposit may be fixed by express agreement, or the intention of the parties may be inferred from their declarations at the time the deposit was made when considered in connection with their conduct and all the other circumstances surrounding the transaction.”

In Bender v. Neillsville Bank of Neillsville, 10 Wis.2d 282, 102 N.W.2d 744 (1960), the court held, at 746, “The first question presented is as to the nature of the bank account here involved. The trial court held it was a special account for a special purpose, and we agree. ... ‘It seems to be well settled that a deposit made in a bank for a specific purpose, and for that alone, partakes of the nature of a special deposit, and does not establish the relation of debtor and creditor between the depositor and the bank, but establishes a fiduciary relation which is sometimes declared to be that of principal and agent, while some courts hold that a trust relation is created.’ ”

Where intention of parties and circumstances surrounding transaction controls, see Dunlop Sand & Gravel Corporation v. Hospelhom, 172 Md. 279, 191 A. 701 (1937).

The Supreme Court of Nebraska, in the case of State ex rel. Sorensen v. American State Bank, 126 Neb. 34, 252 N.W. 460 (1934) adopted language from a prior decision in Officer v. Officer, 120 Iowa 389, 94 N.W. 947, 948 (1903) which stated,

“ ‘A specific deposit exists when money or property is given to a bank for some specific and particular purpose, as a note for collection, money to pay a particular note, or property for some specific purpose.’ In-order to create a specific deposit, it is not necessary that the fund be kept intact as in the case of a special deposit, but it is sufficient if the deposit is made with the agreement or understanding with the bank that a sum equal to the deposit shall be forthcoming for the special purpose intended.” State ex rel. Sorensen v. American State Bank, supra at 462

For additional decisions upon this point, see Bank of America Nat. Trust & Savings Ass’n v. California Savings & Commericial Bank, et al., 218 Cal. 261, 22 P.2d 704 (1933); Miller v. Andrew, 206 Iowa 957, 221 N.W. 543 (1928); Corporation Commission of North Carolina v. Merchants’ Bank & Trust Co., 193 N.C. 696, 138 S.E. 22 (1927); and Moore Mill & Lumber Co. v. Curry County Bank et al., 200 Or. 558, 267 P.2d 202 (1954).

The deposit herein is delineated as a deposit for a special purpose. It necessarily follows that the ultimate question of garnishment in aid of execution and its application or prohibition to or upon a deposit of such nature must be squarely determined.

Again, it is found there are no Missouri cases which address this specific point. Consideration of the issue encompasses general principles of the law such as is set forth in 38 C.J.S. Garnishment § 80 at 283:

“Deposit for special purpose. A special deposit expressly for a particular purpose cannot be diverted from such purpose by garnishment. When the deposit is set apart for a particular purpose according to express statutory sanction, it cannot be reached by garnishment at the instance of a general creditor.”

Again, it is necessary to look to other jurisdictions to see how such questions have been answered, since research reveals our own courts have not been called upon to resolve the particular issue.

In Iowa Mut. Liability Ins. Co. v. De La Hunt, 197 Iowa 227, 196 N.W. 17 (1923), it was held,

“It is elementary that the lien. of an attaching creditor attaches only to the interest of the debtor in the funds or property attached. In other words, the right of the appellant in this case to the garnished funds is no greater than that of appellee. Both are subordinate to any valid agreement between him and the bank that the fund will be paid out by the bank only for a specifically designated purpose. None of the cases cited by appellant hold to the contrary. The evidence does not show that appellee is insolvent, but there is sufficient shown to justify the inference that his contract with the city could be carried out only if he were permitted to use the money in controversy.”

In Geyer & Adams Co. v. Bank of Central Arkansas, 170 Ark. 1016, 282 S.W. 358 (1926), the court held at 359,

“Appellant’s last and chief contention for a reversal of the decree is that appel-lee had no lien whatever upon the general deposit of O. E. Hicks, and that none could be acquired under the doctrine of offset after the service of the writ of garnishment. There would be much in this contention if the deposit was general growing out of the relationship of debtor and creditor between O. E. Hicks and the appellee bank. This unconditional relationship did not exist, for, under the agreement, O. E. Hicks could not draw checks upon the fund for any purpose except to pay debts incurred in growing the 1923 rice crop. It is immaterial that the witnesses referred to the fund as a general deposit, for under the agreement it was deposited to the credit of O. E. Hicks by appellee for a special purpose, so neither O. E. Hicks nor his general creditors had any right to divert it. Certainly the garnisher, who is the appellant and plaintiff in this action, gained no greater right to or over the deposit that [sic] O. E. Hicks, and he was given authority to use it for one purpose only. A restricted deposit is not subject to diversion by garnishment or other process, but must be used for the purpose made. In short, the fund was not subject to garnishment by the general creditors of O. E. Hicks. No lien was acquired upon it by the service of the writ; hence the court correctly dismissed the garnishment proceedings.”

Having concluded the evidence establishes that the deposit made by defendant Williams was intended as a deposit for a special purpose and that the evidence establishes this was the agreement between intervenor-city and Williams for a deposit for a special purpose, it follows said deposit was not subject to garnishment by the general judgment creditor Collier and this cause is reversed.

There remains one additional question to resolve on this appeal, and that is the question of status of the $2,500 fee and cost allowance to the garnishee. In the first instance, the order granting such allowance was never appealed from by any of the parties and hence is therefore not a proper issue before this court. In further note on the point, the parties previously stipulated to the payment of said sum to the garnishee.

The issues in this cause are quite clear and future retrial is unwarranted, and for the foregoing reasons, this cause is reversed with directions to the trial court to enter judgment to the favor of appellants, defendant Williams and intervenor-city.

      . However, this case criticized In re State Bank of Elkhorn, Neb., Hanger et al. v. Luikart, Superintendent of Banks, 129 Neb. 506, 262 N.W. 15 (1935).


source: Caselaw Access Project

author: PER CURIAM. TITUS, Judge

license: Public Domain

text:
    COOPERATIVE ASSOCIATION NO. 37, Plaintiff-Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Defendant-Appellant, and Centropolis Transfer Company, Respondent.
    No. 10515.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 3, 1979.
    Motion for Rehearing or to Transfer Denied Dec. 28, 1979.
    Application to Transfer Denied Jan. 15, 1980.

      Gerald D. Morris, Donald E. Engle, St. Louis, C. Wallace Walter, Springfield, for defendant-appellant.
    Raymond E. Whiteaker, Woolsey, Fisher, Clark, Whiteaker & Stenger, Meredith B. Turner, Springfield, Donald L. Shughart, Timothy J. Yerhagen, Kansas City, for plaintiff-respondent.
   PER CURIAM.

On November 17, 1973, St. Louis-San Francisco Railway Company (Frisco) had three parallel sets of railroad tracks running east and west through Fordland, Missouri. The tracks intersect north-south Center Street at grade. The team track, used for unloading, is southernmost, the passing track is in the middle and the mainline track is northernmost. Plaintiff, per lease agreement with Frisco, maintained a warehouse located on Frisco’s right-of-way just south of the team track and west of Center Street. Per a license agreement with Frisco, Centropolis Transfer Company (Centropolis) carried on a cement unloading operation on the team track east of Center Street wherein cement was unloaded from hopper cars into pits beneath the team track and in turn, via augers, was loaded into tractor-trailer rigs owned by Centropo-lis.

At the time of the casualty in question, three cement hopper cars were standing on the team track east of Center Street and similar cars were on the team track west of Center Street. Depending upon estimates of several witnesses, the first of the three hopper cars was 30 to 100 feet east of Center Street. A six-car work train was standing on the middle or passing track east of Center Street. The first car of the work train was estimated to be anywhere from 30 to 200 feet east of Center Street.

The accident occurred when Frisco’s train, traveling west on the main-line or northernmost track, collided with Centropo-lis’ northbound truck which was traveling on Center Street and crossing the railroad tracks. The ensuing derailment of Frisco’s cars caused damage to plaintiff’s warehouse located at the southwest corner of the intersection of Center Street and the above-described railroad tracks. Plaintiff sued Frisco and Centropolis. Frisco counterclaimed on the basis of an indemnification clause contained in its lease with plaintiff and cross-claimed against Centropolis on the basis of the license agreement and on theories of negligence. Centropolis crossclaimed against Frisco alleging it was negligent in several respects. In accordance with jury verdicts, a $34,000 judgment was entered for plaintiff against both defendants, in favor of plaintiff on Frisco’s counterclaim, in favor of Centropolis on Frisco’s cross-claim and in favor of Frisco on the cross-claim of Centropolis. Frisco appealed.

I

Frisco’s first point relied on is that the trial court erred in denying Frisco’s motion for directed verdict made at the close of all the evidence and in denying Frisco’s motion for judgment notwithstanding the verdict with respect to plaintiff’s claim against Frisco for the reason, in essence that a certain provision of a lease agreement dated May 21,1928, entitled Frisco to the relief sought by the denied motions.

The parties agreed that the lease dated May 21, 1928, was in full force ánd effect between plaintiff and Frisco on the date of the collision of November 17, 1973. Paragraph 11 of the lease is set forth marginally. Lease provisions of that general nature are discussed in Tri-State Gas Co. v. Kansas City Southern Railway Co., 484 S.W.2d 252 (Mo.1972). There the supreme court stated, at p. 253: “Leasehold provisions by which railroads are exempted from the consequences of their own negligence are valid and binding on the parties.”

Paragraph 11 contains two sentences. Neither is a paragon of brevity.

In the first sentence lessee (plaintiff) agrees to “assume” four enumerated categories of damages. They are:

(1) All damages resulting from want or failure at any time of title on the part of [Frisco] to any part of the leased premises;

(2) All damages resulting from fire communicated from the right of way, locomotives or other machinery of [Frisco], or otherwise, to any buildings, structures, improvements, or other property of any kind or character that may now or hereafter be upon said leased premises, or- any part thereof, and to whomsoever the same may belong;

(3) All damages resulting from death of or injury to [plaintiff], or any of [plaintiff’s] agents, servants or employees, and any and all other persons, while upon said leased premises, or any part thereof;

(4) Loss or destruction of or damage to any buildings, structures, improvements or other property of any kind or character that may now or hereafter be upon said leased premises, or any part thereof, and to whomsoever the same may belong, caused by or resulting in any manner from the operation or maintenance of said railroad.

Categories 2 and 4 deal with certain described erections. Category 2 covers damage resulting from fire communicated from the right of way or machinery of Frisco,' “or otherwise,” to the erections. Category 4 deals with damage (or loss or destruction) to the erections “caused by or resulting in any manner from” the operation or maintenance of the railroad.

Category 2 is confined to damage resulting from fire but whether that fire was caused by the operation or maintenance of the railroad is immaterial. Category 4 is confined to damage connected with the operation or maintenance of the railroad but whether the damage resulted from fire is immaterial. Obviously some situations could involve both categories.

The last clause in the first sentence is separated from the preceding portions by the only semicolon in that prolix sentence. That clause provides, in essence, that the plaintiff “assumes” each of the four enumerated varieties of damages whether or not any of them is caused by the negligence of Frisco or its agents, servants or employees.

In the second sentence of paragraph 11 plaintiff releases Frisco from liability for each of the four categories of damages. That sentence also includes an agreement to indemnify.

In the case at bar plaintiff’s warehouse, located on the leased premises, was damaged by reason of the collision between the Frisco train and the truck. No fire was involved so category 2 is not involved. Category 4 is involved if it may properly be said that the damage to the warehouse was “caused by or result[ed] in any manner from the operation or maintenance of said railroad.”

Plaintiff’s petition pleaded, and the jury found, that the negligence of Frisco’s train combined with the negligence of Cen-tropolis’ truck driver to cause the collision. There would be no validity in an argument that category 4 is confined to situations where the damage was solely caused by Frisco’s negligence. That is true because the last clause in the first sentence makes the negligence or non-negligence of Frisco immaterial in determining whether category 4, or any of the other categories, is involved. The fact that the damage was caused by the concurrent negligence of Frisco and Centropolis does not remove the situation at bar from category 4. That category covers damages to the erections “caused by or resulting in any manner from the operation ” of the railroad.

Category 4 applies to the instant facts and Frisco is not liable to plaintiff.

Frisco’s first point is a meritorious one. That portion of the judgment which was in favor of plaintiff and against defendant Frisco on the petition must be reversed. Frisco has not requested any other or additional appellate relief with respect to its counterclaim against plaintiff.

II

Frisco’s second point relied on challenges the correctness of Instruction No. 3, plaintiff’s verdict-directing instruction, submitting its claim against Frisco. The disposition of Frisco’s first point renders its second point moot.

III

Frisco’s third point relied on reads: “The trial court erred in failing to sustain Frisco’s post-trial motion for judgment in accordance with its motion for a directed verdict on Counts II and IV of its cross-claim against Centropolis at the close of all the evidence for the reason that Frisco was entitled to such relief as a matter of law because of a legal, valid, and binding license agreement between Frisco and Centropolis whereby, under the circumstances of this case, Centropolis was obligated to Frisco for the amount of loss sustained by Frisco, as claimed in Counts II and IV of Frisco’s crossclaim.”

As written, the point violates the basic requirements of Rule 84.04(d), V.A.M.R., which are mandatory. Barber v. M. F. A. Milling Co., 536 S.W.2d 208, 209[1] (Mo.App.1976). It does not set forth “wherein and why” the trial court erred except for the conclusory statement that Frisco was entitled to relief as a matter of law because of the license agreement. State ex rel. Zoological Pk. Subd., St. Louis v. Jordan, 521 S.W.2d 369, 373[7] (Mo.1975). “Wherein and why” the license agreement entitled Frisco to relief against Centropolis is left to speculation and conjecture. The only way we could come by the meaning of this abstraction is to resort to a search of either the transcript on appeal or the argument portion of Frisco’s brief. We are not required to do either. Butterbaugh v. Public Water Supply Dist. No. 12, 512 S.W.2d 445, 447[3] (Mo.App.1974); In re Estate of Barks, 488 S.W.2d 928, 930[5] (Mo.App.1972). Nonetheless, it suffices to say that the licensing agreement between Frisco and Centropolis does not expressly and unequivocally obligate Centropolis to indemnify and save Frisco harmless from the particular loss suffered in this case. The agreement, in particular, was only against “loss . resulting from or incident to the construction, maintenance, operation, use or existence of said unloading pit,” etc. Such a situation did not occur. Cf. Kansas City Power & Light Co. v. Federal Const. Corp., 351 S.W.2d 741, 745[2] (Mo.1961); Paro v. Pennsylvania Railroad Co., 348 S.W.2d 613, 614-615 (Mo.App.1961); Thomas v. Skelly Oil Company, 344 S.W.2d 320, 321 (Mo.App.1960).

IV

Frisco’s fourth point is anomalistic at best. It complains of the trial court’s refusal to give its proffered instructions C, D and E. However, in its argument to this point Frisco states: “The trial court refused these instructions because they are drawn to submit issues concerning the license agreement between Centropolis and Frisco and he believed that all such questions were matters of law to be decided by the Court . Frisco must admit, in all candor, that it believes that the trial court is correct; the issues presented by the [refused instructions concerning the] license agreement are matters of law for the Court.” If Frisco admits the correctness of the trial court’s refusal, who are we to say otherwise? “The interpretation of a contract on the basis of its express language presents a legal issue for the court.” Slotkin v. Willmering, 464 F.2d 418, 423[9] (8th Cir. 1972).

V

Frisco next complains of Instruction No. 7 given on behalf of Centropolis relative to its defense of Frisco’s crossclaim. The charge reads: “Your finding must be for defendant Centropolis on defendant Frisco’s cross-claim as submitted in Instruction Number 6 if you believe: First, defendant Frisco either: operated its train at an excessive speed, or operated its train at a speed which made it impossible for it to stop within the range of the engineer’s visibility, or operated its train toward the Center Street intersection without first giving an adequate and timely warning, or obstructed the vision [of the driver of Cen-tropolis’ truck] of the approach of defendant Frisco’s train, . . . ”

It will be noted that the instruction contains four assignments of negligence submitted in the disjunctive. It is axiomatic that when this occurs and the submission of one assignment of negligence is erroneous, the instruction is erroneous because the verdict may have been based upon the erroneous submission. Beckwith v. Standard Oil Company, 281 S.W.2d 852, 856[8] (Mo.1955); Leonard v. Gordon’s Transport, Inc., 575 S.W.2d 244, 247[1] (Mo.App.1978); Schneider v. Finley, 553 S.W.2d 727, 730[2] (Mo.App.1977); Missouri Approved Jury Instructions (MAI) 1.02, Committee’s Comment at. 7 (2d ed. 1969).

Tending directly to the disjunctive submission that Centropolis could not be liable on Frisco’s crossclaim if Frisco “operated its train at a speed which made it impossible for it to stop within the range of the engineer’s visibility,” we must bear in mind that it was Frisco’s right-of-way (not Centropolis’) on which the train was being operated, that it would be most impracticable always to run a national system of railroads at such speeds as would permit trains to be stopped within the range of the engineer’s visibility and that it is to the general public’s interest that trains operate on some semblance of a time schedule. Therefore, it has been held that railroads, dissimilar to automobile drivers on public highways, have no general duty to operate their trains at such speeds that they can always stop within the range of the engineer’s visibility. Owens v. Chicago, Rock Island and Pacific Railroad Co., 292 F.2d 696, 697[4] (10th Cir. 1961); Chicago Rock Island & P. R. Co. v. Hugh Breeding, Inc., 247 F.2d 217, 224-225[5] (10th Cir. 1957); Johnson v. Killion, 179 Kan. 571, 297 P.2d 177, 179[2, 3] (1956) and cases there cited; McGlinchey v. Baker, 356 F.Supp. 1134, 1143 (E.D.Pa.1973); Shaffer v. New York Cent. R. Co., 66 Ohio App. 417, 34 N.E.2d 792, 794[2] (1940); Annot., Negligence— Speed of Train at Crossing, 154 A.L.R. 212, 229-230; cf. Theriot v. Texas and New Orleans Railroad Co., 220 So.2d 563, 568[4] (La.App.1969). The disjunctive submission was error.

VI

In Frisco’s sixth point it asserts that the trial court committed error in admitting, over Frisco’s objection, certain testimony adduced by plaintiff. For the reason that the issues may not arise at all or in the same manner on the new trial of Frisco’s crossclaim against Centropolis, the sixth point need not be considered.

For the reasons stated that portion of the judgment which was in favor of plaintiff and against defendant Frisco on plaintiff’s petition is reversed; that portion of the judgment which was in favor of Centropolis on Frisco’s crossclaim against Centropolis is reversed and remanded; in all other respects the judgment is affirmed.

The cause is remanded for a new trial only on the issues relating to the crossclaim of Frisco against Centropolis. It is so ordered.

All concur except TITUS, J., who dissents and files dissenting opinion.

TITUS, Judge

(dissenting).

I respectfully dissent to the ruling on Frisco’s first point relied on and, of necessity, on the conclusion that the majority holding as to that point renders the second point moot.

By paragraph 11 of the lease, plaintiff agreed to assume, even if caused by Frisco’s negligence, “all damages [to structures on the leased premises] resulting from fire communicated from the right of way, loco-' motives or other machinery of [Frisco] or otherwise . . . and damage to any buildings . . . caused by or resulting in any manner from the operation or maintenance of said railroad.” In the second sentence of paragraph 11, the parties have attempted the unlikely undertaking of both releasing Frisco from liability which plaintiff had agreed to assume and indemnifying Frisco for liability otherwise assumed or released by plaintiff. In such an apparently absurd situation, the meaning and scope of the paragraph must be determined based upon the intent of the parties when the lease was made. Tri-State Gas Co. v. Kansas City Southern Railway Co., 484 S.W.2d 252, 253—254[1, 2] (Mo.1972).

The lease agreement between Frisco and plaintiff is dated May 21, 1928. A reading of § 537.380, RSMo 1978, related and predecessor statutes thereto and reported cases digested under 24A Mo.Dig. Key Number 453 et seq., Railroads, attests to the liability and volume of litigation to which railroads were subjected, at and near the birth of the lease in question, because of loss by fire communicated by coal burning-steam driven locomotive engines. Before oil came into use to fuel locomotive engines, courts took judicial notice that locomotives emitted “sparks in sufficient quantities to communicate fire to combustible materials on which they happen to fall; that the quantity of sparks emitted depends on a number of conditions; that certain types of sparks arresters are in general use on the railroads of the country; and that no device has been invented or constructed which can wholly prevent a locomotive from throwing off live sparks under certain circumstances.” 31 C.J.S. Evidence, § 29, at 924 and cases there cited. Considering the wording of the contract, the time (1928) and the prevailing circumstances in esse when the lease was executed, it seems clear that the specific and primary concern of Frisco was to seek legal absolution from “all damages resulting from fire.” Under the rule of ejusdem generis, the general term relating to damages “caused by or resulting in any manner” is nothing more than a “clean up” or “otherwise” phrase with respect to the specific reference to “fire” which preceded it. Limited and specific clauses in contracts operate as a modification and pro tanto nullification of general terms and provisions. State ex rel. Smith v. City of Springfield, 375 S.W.2d 84, 91[2] (Mo. banc 1964); In re Marriage of Buchmiller, 566 S.W.2d 256, 259[6] (Mo.App.1978); 28 C.J.S. Ejusdem generis, pp. 1049-1050; 17 Am.Jur.2d, Contracts, § 270, pp. 677-679.

As to the indemnity aspect of the lease, it is to be again noted that Frisco’s train which figured in the collision was traveling west on the northernmost or main-line track. The ensuing derailment caused train cars to strike and derail hopper cars standing west of the intersection on the southernmost or team track and these, in turn, are what damaged plaintiff’s building.

“It is clear that two parties may enter into a valid contract whereby one is indemnified by the other against loss by-the former (indemnitee) as the result of his own negligence. . . . [The] law has wisely required that such broad and comprehensive indemnification agreement be expressed in clear, unequivocal and unambiguous terms. Courts in Missouri have not (and should not) construe such an indemnity contract, protecting against negligence, -in the absence of such clear expression or where any doubt exists as to the intention of the parties.” Southwestern Bell Tel. Co. v. J. A. Tobin Const. Co., 536 S.W.2d 881, 884-885[2, 3] (Mo.App.1976). There-are no clear, unequivocal and unambiguous terms in the agreement which contemplate or cover the casualty in question. The indemnification in the second sentence of paragraph 11 of the lease simply alludes to “all damages in this paragraph referred to.” As already seen, the only clear expression in reference to damages is loss resulting from fire, a loss which did not occur here. “[M]ere general, broad, and seemingly all-inclusive language in the indemnifying agreement is not sufficient to impose liability for the indemnitee’s own negligence.” Kansas City Power & Light Co. v. Federal Const. Corp., 351 S.W.2d 741, 745[2] (Mo. 1961). Frisco’s first point, in my opinion, should be denied.

In view of my dissent regarding Frisco’s first point relied on, supra, its challenging of the correctness of plaintiff’s verdict directing instruction does not make moot Frisco’s second point.

Frisco’s second point relied on and the argument thereto are prolix and difficult for full comprehension. In substance, Frisco’s point asserts the trial court erred in giving plaintiff’s instruction number 3 because it permitted the jury to find Frisco negligent for failing “to cause its trains to be operated at more a [sic] restricted speed” and “for failing to have electronic signals at the crossing”, when such issues were un-pleaded and not supported by the evidence. The difficulty of comprehending the point becomes self-evident when plaintiff’s allegations of Frisco’s negligence and instruction numbered 3 are considered together.

Inter alia, plaintiff’s petition averred that. Frisco was negligent because it “operated said freight train at an excessive and dangerous rate of speed [and] failed to sound a warning.” Instruction No. 3 charged the jury to find for plaintiff against Frisco if it believed “Frisco either: operated its train at an excessive speed, or operated its train toward the Center Street intersection without first giving an adequate and timely warning . . . .”

The speed tape on Frisco’s train showed the train was traveling 48 to 49 m. p. h. when it collided with Centropolis’ truck at the grade crossing. Frisco’s self-concocted speed limit at the crossing was 55 m. p. h. Based on this, albeit there was no question that the train was being operated by Frisco’s engineer, Frisco theorizes, in a most strained fashion, that since the instruction did not refer to the train being run by an engineer or agent of Frisco, the charge that the train was being run at an excessive speed could be jury-interpreted as an instruction that Frisco failed “to have in force and effect a more restrictive speed limit through Fordland and across Center Street than 55 Miles Per Hour.” The uniqueness of this assertion is matched only by its implausibility. Irrespective of speed limits, whether self-imposed or set by statutes or ordinances, the ultimate issue for determination was not whether Frisco was negligent in not having a more restrictive speed limit than 55 m. p. h., but whether the train, under the then existing circumstances, was being operated at an excessive speed and that is exactly what the instruction submitted. Cf. Dorrel v. Moore, 504 S.W.2d 174, 179[8] (Mo.App.1973); Rakes-traw v. Norris, 478 S.W.2d 409, 415[9] (Mo.App.1972). “What . . . constitutes excessive or dangerous speed by a railroad engine or train, in passing over a crossing, is always dependent upon the facts or surrounding circumstances of the particular case, and by this rule will the character of the engine’s speed be measured.” Beal v. Chicago, B. & Q. R. Co., 285 S.W. 482, 485[3] (Mo.1926). Furthermore, if Frisco feared the instruction was susceptible to misunderstanding, it was incumbent upon Frisco to submit an explanatory or modifying instruction before it can be heard to complain. Frisco offered no such instruction. Barber v. M. F. A. Milling Co., 536 S.W.2d 208, 210[7] (Mo.App.1976).

Frisco’s second part of point II refers to that portion of Instruction No. 3 which alternatively allowed plaintiff recovery if Frisco “operated its train toward the Center Street intersection without first giving an adequate and timely warning.” Because the jury had leave to believe all, part or none of the testimony of any witness [Robinson v. St. John’s Medical Center, Joplin, 508 S.W.2d 7, 11[3] (Mo.App.1974)], Frisco tacitly cedes it would have been proper to give the instruction had the issue been solely confined to whether Frisco did or did not give an adequate and timely warning by bell or whistle. However, Frisco urges that, in view of objected-to evidence that “there ■ were no electronic signals at the intersection”, the instruction prompted the injection of the issue as to whether Frisco “should have had electronic signals at the intersection” when such had not been pleaded as a charge of negligence.

The duties, statutory and at common law, of railroads to signal the approach of trains at public crossings are ably stated by Gunn, J., in Koehler v. Burlington Northern, Inc., 573 S.W.2d 938, 943-944[4-11] (Mo.App.1978), and need not be repeated here. In the instant case testimony anent the absence of electronic signals at the crossing was simply evidence of surrounding circumstances which was relevant both to a determination of whether Frisco’s train was being operated at an excessive speed and to the means or adequacy of a warning, Plaintiff did not plead nor argue that any duty rested on Frisco to have given any kind of warning other than a whistle or a bell. Defendants in Hackett v. Wabash Railroad Company, 271 S.W.2d 573, 577, 579[13] (Mo.1954), concerning plaintiff’s instruction regarding defendants’ duty “to give a timely and adequate warning of the' approach of a train,” asserted the charge gave the jury' a “roving commission” to determine the kind of warning that should have been given. To this, the court said: “In making this contention, defendants-appellants say the jury may have believed the testimony of defendants’ witnesses that a whistle and bell were sounded and yet have found for plaintiff on the theory that other means of warning should have been utilized at the crossing, for examples — a flagman, a gate, or an automatic bell or other automatic warning system. . . . [P]laintiff did not argue that any duty rested on defendants to have given any kind of a warning other than by whistle or bell. Plaintiff did not plead or contend the circumstances demanded the duty to take the precaution of using any means of warning other than by whistle or bell. We believe there is no real substance in this contention.” I likewise believe there is no real substance in the second portion of defendant’s point II and the same should be denied.

For the reasons aforesaid, I dissent.

      . “In consideration of the privileges hereby given Lessee to occupy and use the ground of Lessor hereinabove described, and of the benefits and privileges to be derived therefrom, and of the rental herein provided, Lessee hereby covenants and agrees to assume all damages resulting from want or failure at any time of title on the part of Lessor to any part of the leased premises, and all damages resulting from fire communicated from the right of way, locomotives or other machinery of Lessor, or otherwise, to any buildings, structures, improvements or other property of any kind or character that may now or hereafter be upon said leased premises, or any part thereof, and to whomsoever the same may belong, and all damages resulting from death of or injury to Lessee, or any of Lessee’s agents, servants or employees, and any and all other persons, while upon said leased premises, or any part thereof, and loss or destruction of or damage to any buildings, structures improvements or other property of any kind or character that may now or hereafter be upon said leased premises, or any part thereof, and to whomsoever the same may belong, caused by or resulting in any manner from the operation or maintenance of said railroad; whether any such damage shall be caused by the negligence of Lessor, or any of its agents, servants, or employees, or otherwise. Lessee hereby further covenants and agrees to release, and does hereby release, and to protect, save harmless and indemnify. Lessor from and against any and all damages in this paragraph referred to, and all claims, demands, causes of action, suits, judgments, attorneys’ fees, costs and expenses on account thereof.”


author: FLANIGAN, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Larry Eugene MONTGOMERY, Appellant.
    No. 10981.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 6, 1979.
    David Robards, Joplin, for appellant.
    John Ashcroft, Atty. Gen., Richard Thurman, Lisa’ Martha Camel, Asst. Attys. Gen., Jefferson City, for respondent.
   FLANIGAN, Chief Judge.

A jury found defendant Larry Eugene Montgomery guilty of receiving stolen property (§ 560.270 RSMo. 1969) and fixed his punishment at four years in the custody of the Department of Corrections. Judgment and sentence were entered thereon. Defendant appeals.

Defendant contends that the evidence is insufficient to support the conviction and that the trial court erred in denying his motion for judgment of acquittal offered at the close of all the evidence.

In determining the sufficiency of the evidence to support the conviction, this court must view the evidence in the light most favorable to the state, accept all substantial evidence and all legitimate inferences fairly deducible therefrom which tend to support the verdict, and reject contrary and contradictory evidence. State v. Petrechko, 486 S.W.2d 217 (Mo.1972). This court must disregard all evidence unfavorable to the state and reject all inferences unfavorable to the state. State v. Summers, 506 S.W.2d 67 (Mo.App.1974). The defendant offered the testimony of himself and other witnesses and thus the submissi-bility of the case will be determined upon all of the evidence. State v. Sykes, 372 S.W.2d 24 (Mo.1963); State v. Chester, 445 S.W.2d 393 (Mo.App.1969).

The elements of the offense of receiving stolen property are: (1) the accused must receive the property in some way from another and not be the actual captor of the property; (2) the property is stolen property at the time of reception; (3) the accused has guilty knowledge the property was stolen at the time of reception; (4) the accused must receive the property with a fraudulent or criminal intent. State v. Norman, 586 S.W.2d 45, 47[1] (Mo.App.1979); State v. Inman, 578 S.W.2d 336, 337 (Mo.App.1979).

It is defendant’s position that the evidence fails to show element (1).

“[WJhile an unexplained possession of recently stolen property can give rise to an inference that the possessor is the thief [State v. Dobson, 303 S.W.2d 650 (Mo.1957)], an inference cannot be drawn that the possessor of stolen goods received the property from another [State v. Armstrong, 555 S.W.2d 640 (Mo.App.1977)], in a prosecution under § 560.270 RSMo. 1969.” State v. Davis, 590 S.W.2d 418 (Mo.App.1979) (No. 11150, So.Dist.). To similar effect see State v. Inman, supra, 578 S.W.2d at 338[5]; State v. Magers, 452 S.W.2d 198, 200 (Mo.1970). One cannot at the same time be a principal in the larGeny and in the legal sense a receiver of stolen property. State v. Inman, supra, 578 S.W.2d at 337. “It is an essential element of reception that there be at least two actors involved, 66 Am. Jur.2d, Receiving Stolen Property § 4 p. 298; that accused received the property from another — from some person other than the owner. 76 C.J.S. Receiving Stolen Goods § 5b. p. 8.” State v. Armstrong, 555 S.W.2d 640, 642 (Mo.App.1977).

“That offense [receiving stolen property] is definitely not a lesser offense included within the offense of stealing. It involves different elements, — a buying or receiving, from another, of property known to have been stolen, with intent to defraud. Indeed that offense may well be said to be wholly inconsistent with the offense of stealing. In receiving stolen property a prior theft and knowledge thereof are essential.” State v. Kelly, 365 S.W.2d 602, 606 (Mo.1963). (Emphasis in original.)

The information charged that the defend-* ant received the stolen property on or about November 17,1977. The property allegedly received consisted of three items — a Magna-vox stereo unit, a Magnavox color television set, and a Lowery organ, each identified by serial number, and all being the property of Joplin Piano Company.

The warehouse of Joplin Piano Company, located at 214 Main in Joplin, was burglarized on the morning of November 17, 1977. Forcible entry had been obtained to the building. Taken in the burglary were thirteen new television sets, four stereos, three organs and seven demonstrator television sets. Some of the items were in shipping cartons. There was no evidence concerning the identity of the burglar or burglars.

On November 29, 1977, at 10:30 p. m. Joplin police officers, investigating a crime which had occurred in Kansas City, went to the house at 2211 West First, Joplin, because a vehicle reportedly involved in the Kansas City offense was registered in the name of the defendant and the registration showed his address to be 2211 West First.

The officers were admitted to the house. The only two people who were there were the defendant and his brother Mike Montgomery. The defendant was sitting in the living room watching television. The defendant told the officers that he owned the house and some of the furniture in it and that he was living there. The furniture which defendant admitted he owned consisted of the kitchen stove and the table and chairs in the kitchen. The defendant and his brother accompanied the officers to the Joplin police station and were released later that night.

On December 6, 1977, after first obtaining a search warrant, the Joplin police officers returned to the house at 2211 West First. The stereo, color television set, and the organ described in the information were found in the house and each of those items had been there at the time of the officers’ initial visit on November 29. One of them was the television set defendant was watching on November 29. Through the serial numbers the three units were identified as being among those taken in the burglary of the Joplin Piano Company. One unit was still in its carton.

The defendant introduced the evidence of several witnesses in an attempt to show that the house at 2211 West First was occupied by Mike Montgomery and a woman named Billie Bozarth and that defendant did not live there. The defense witnesses testified that from August 1977 through the date of defendant’s arrest in December 1977 defendant lived at 2610½ Pearl with a woman named Linda Reisner. It was Linda’s testimony that she and defendant had an argument which resulted in the defendant spending two or three nights away from 2610½ Pearl during the latter part of November.

Defense witness Susan Gray testified that she was a sister of Linda Reisner and that in November 1977 the witness moved into 2610¾⅞ Pearl. The defendant had previously moved out because of his argument with Linda. A color television set which was among the furniture which Susan moved into 2610½ Pearl had been in the possession of Susan for at least two weeks. It was Susan’s testimony that the color television set had been given her by her boyfriend Jerry Laughlin. This television set was identified as one of the items taken in the Joplin Piano Company burglary.

The state argues that the testimony of Susan Gray is sufficient to support the inference that defendant was the receiver and not the taker of the three items described in the information and found in defendant’s possession at 2211 West First. The state points out that defendant was not the sole occupant of 2211 West First. The state then argues, “The jury could reasonably infer that any one of these parties (presumably Jerry Laughlin, Mike Montgomery and Billie Bozarth) other than the defendant had stolen the items and the defendant simply received those items.”

The evidence does support a finding that Susan Gray received from Jerry Laughlin one of the television sets taken in the burglary. The record, however, contains no evidence concerning any relationship or transaction between the defendant and Jerry Laughlin. In view of the number and size of the items taken in the burglary it may be a reasonable inference that more than one person committed it. If, however, defendant was one of those persons, that is if he was “the actual captor” of the property, he may not be found guilty of receiving the property which he himself took.

The mere fact that Jerry Laughlin delivered one of the stolen items to Susan Gray does not support an inference that the defendant received the three items described in the information from Jerry Laughlin or from any other person. The record is silent with regard to the location or handling of these items following the burglary until they were observed in defendant’s house on November 29.

The following language from State v. Armstrong, supra, 555 S.W.2d at 643 is apposite:

“The evidence may have made a case of stealing against appellant, but only by resorting to speculation and conjecture may it be said that appellant received stolen property from another. There is nothing to show how appellant came into possession of the automobiles; no evidence that appellant obtained them from or through a thief; no evidence that appellant purchased, leased, borrowed or otherwise acquired them from another person. The situation is akin to that in State v. Miller, 433 S.W.2d 281 (Mo.1968), wherein the court said, 1. c. 283: ‘The evidence is more consistent with guilt of the charge of stealing than with guilt of the charge of receiving stolen property from another.’ ”

The evidence is insufficient to support a finding that the defendant received the property from another person. State v. Delay, 455 S.W.2d 1 (Mo.1970); State v. Magers, supra, 452 S.W.2d 198; State v. Miller, 433 S.W.2d 281 (Mo.1968); State v. Inman, supra, 578 S.W.2d 336; State v. Armstrong, supra, 555 S.W.2d 640.

Because the evidence is insufficient to support the verdict, the double jeopardy clause of the Constitution of the United States “forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks v. United States, 431 U.S. 1, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978). See also State v. Basham, 568 S.W.2d 518 (Mo. banc 1978).

The judgment is reversed and the defendant discharged.

All concur.


author: PER CURIAM:

text:
    Geraldine SMITH, Plaintiff-Appellant, v. Chris A. HEISSERER, Defendant-Respondent.
    No. 11402.
    Missouri Court of Appeals, Southern District.
    Dec. 6, 1979.
    Donald Rhodes, Bloomfield, for plaintiff-appellant.
    Don P. Thomasson, Cape Girardeau, for defendant-respondent.
   PER CURIAM:

Damage suit and jury verdict for defendant. The trial court’s “Judgment Order” set forth in the transcript filed herein consists of nothing more than a recitation of the day’s events and does not purport to be an entry of judgment on the verdict.

There being no final judgment, the appeal is premature and is dismissed.

All concur.