CITY OF FULTON v. HOME TRUST COMPANY, D. R. HARRISON, Cоmmissioner of Finance and W. B. WHITLOW, Deputy Commissioner of Finance, in charge of the assets of the HOME TRUST COMPANY OF FULTON, Appellants.
Supreme Court of Missouri, Division One
December 21, 1934
78 S.W.2d 445
In considering the assurance and promise testified to in this case, suppose respondent had been employed to drive an automobile and had asked for goggles because he thought he might get dust in his eyes without them. If, although there had been a promise to furnish them or an assurance of safety in driving without them, respondent had got some foreign substance in his eye which caused an infection or injury, could it be contended that the employer was liable? It could not, because the employer would not be guilty of any negligence in failing to furnish goggles, since we know that reasonable and prudent persons do drive automobiles without goggles and consider that it is reasonably safe to do so. There is, of course, some risk of an automobile driver getting foreign substances in his eyes, which goggles would prevent, but it is a risk incidental to the work which does not arise out of his employer‘s negligence. Where there is no negligence there is no basis for holding the employer liable.
Our conclusion is that respondent‘s evidence was not sufficient to prove a cause of action.
The judgment is reversed. Ferguson and Sturgis, CC., concur.
PER CURIAM:—The foregoing opinion by HYDE, C., is adopted as opinion of the court. All the judges concur.
FERGUSON, C.—On December 29, 1931, the Home Trust Company of Fulton ceased to do business and its “affairs and assets” were placed under the control of the State Commissioner of Finance for liquidation. [
Fulton is a city of the third class. On April 1, 1930, R. L. Brown was elected city collector of said city for a term of two years and thereupon duly qualified by executing and filing a bond for $20,000, as required by ordinance, with the American Surety Company of New York as surety thereon, which bond was accepted and approved by the city council. The bond, in conformity with the ordinance, was conditioned that the said “R. L. Brown shall faithfully and punctually collect and pay over all city revenue, and faithfully do and perform the acts and duties required of him by virtue of said office” of city collector, etc. Brown was thus the duly elected and qualified city collector throughout the year 1931. During the same period T. H. Van Sant was city treasurer and the Callaway Bank the legally designated and acting city depository. It was admitted; “that at the time of the closing of the Home Trust Company there was on deposit in said trust company the sum of $5511.08 to the credit of R. L. Brown, city collector; that no part of said sum has been paid; that, at the time of closing, said trust company had sufficient assets on hand out of which the claim could be paid and that said assets are in the custody of the Special Deputy Commissioner of Finance; and that claim” therefor “was filed in due time.” The fund in controversy, $5,511.08, is the aggregate of twenty-two daily deposits, in various аmounts, made by Brown, from and including December 2, to and including December 28, 1931, to his credit as city collector in the Home Trust Company of Fulton. The trust company closed and placed its “affairs and assets” under the control of the State Commissioner of Finance, for liquidation, on the morning of December 29, 1931. These funds, so deposited, represented city taxes and other city revenues which Brown, in his capacity as city collector, hаd collected during the month of December. He did not, at any time, deposit any personal or private funds in this account but only funds of the city.
Sections 6782 and 6785, of Article 4, Chapter 38, Revised Statutes 1929, relating to cities of the third class, declare the duties of city collector in reference to paying into the city treasury all city revenues collected or received by him from all sources. Said sections read; Section 6782: “The city сollector shall report to the city council, at the regular meetings in each month, all taxes collected on the real and personal delinquent lists; and he shall pay the same to the city treasurer, and receive credit therefor.” Section 6785: “It shall be the duty of the city collector to pay into the treasury, monthly, all moneys received by him from all sources, which may be levied by law or ordinance; also, all licenses of every description authorized by law to be collected, and all moneys belonging to the city which may come
Brown made daily deposits in the bank, to his credit as city collector, of the city revenues collected or recеived by him as city collector. Pursuant to the provisions of the ordinance, at the end of each month, or between the first and third of the following month, he regularly delivered, to the city treasurer, his check drawn upon the bank of deposit in the full or aggregate amount to his credit, took the duplicate receipts therefor from the city treasurer and then filed his monthly report or settlement with the city clerk for presentation to the сity council, accompanied by the treasurer‘s receipt. He regularly followed this course, transferring or paying over to the city treasurer at the end of each month all city funds which he had collected during the preceding month and apparently his predecessors in the office of city collector had uniformly followed a like course. The trust company having closed on the 29th day of December his colleсtions for the month of December to his credit, in that bank, as city collector, had not yet been transferred to the city treasurer. The officers of the trust company knew the funds deposited by Brown to his account as city collector were city funds and that he had transferred, and intended to transfer, the total amount of that account at the end of each month, by check, to the city treasurer who would then deposit same in the сity depository, the Callaway Bank. There was no agreement or understanding between Brown and the officers of
No statute by virtue of which the city is specifically or exрressly given a preference as to these deposits is relied upon and, if the city‘s claim to preference is to be sustained, it must appear that the bank‘s relationship to the deposits was fiduciary, that is, that the bank received and held these deposits impressed with a trust; therefore the city advances two theories; first, that the city collector was not the legal custodian of such funds; that the deposits were made without authority, were illegal or unlawful, and known by the officers of the bank to be so, and that thus a trust ex maleficio was created; second, that, if they be held to have been lawful deposits, under the facts they were received as, became and were, special deposits which the bank held as a mere trustee.
The sections of our statute relating to the duties of a city collector of cities of the third class and the ordinance of the city of Fultоn defining same, above cited and quoted, clearly contemplate that the city collector retain city moneys and revenues, which he collects, in his custody, during the interim between the monthly settlements therein provided for and required. Neither by statute or ordinance is he required, upon making a collection of city taxes or other city revenues, to forthwith pay over or transfer each individual item to the city treasurer and tаke a receipt therefor but he is authorized and permitted; if not in fact directed, to retain the various sums so collected during the month until the end of the month at which time he is required to make his monthly settlement and pay over to the city treasurer the total amount of such collections made during the month and take receipts therefor one of which he files with the city clerk. Clearly during such period he is the lawful custodian of such funds. Neithеr statute nor ordinance directs how or in what manner he shall hold or preserve the funds while same are in his custody. He is responsible for their safe keeping and under a bond conditioned that he will pay them over to the city treasurer monthly as required by statute and ordinance. The fund in controversy, being the total, as stated, of numerous daily collections made by Brown as city collector during the month was therefore being lawfully held and retаined by him as city collector. Even if it were material no contention is advanced, or suggestion made, that at the time he made these deposits the reputation of the bank for solvency was questioned or impaired or that he had any knowledge or information to that effect. He was the legal custodian of these funds and certainly was authorized and warranted in depositing them, from time to time during the month, as received, in a bank for safe-keeping,
Respondent says that the city collector was a trustee with respect to the city moneys which he collected and deposited with the trust company and makes the argument that since thе officers of the trust company knew that the city was the beneficial owner of the moneys so deposited to the credit of the city collector and that the city collector retained and had custody thereof as a trustee that it necessarily follows that when same were deposited with the trust company it thereupon also became a trustee as to such funds. If that theory be adopted and followed the deposit of trust funds of any kind in a bank having knowledge of their source and character would make the bank a trustee thereof and entitle the beneficial owner to a preference but such is not the rule in this State. In Paul v. Draper, 158 Mo. 197, 59 S. W. 77, this court said: “The fact that the deposit was of a trust fund, and known to the bank to be such, would not of itself make the bank a trustee of the fund for the benefit of the cestui que trust.” We think the following excerpt from the opinion of the St. Louis Court оf Appeals in Wheelock v. Cantley, State Commissioner of Finance, 227 Mo. App. 102, 50 S. W. (2d) 731, disposing of a like contention, made in that case, states the correct rule: “In this State the rule is that deposits made by trustees are usually considered simply as general deposits, and if the bank fails to pay them, the beneficiaries have no particular claims or rights over other creditors, but share the same as other creditors (William R. Comptоn Co. et al. v. Farmers’ Trust Co., 220 Mo. App. 1081, 279 S. W. 746, l. c. 748), and that is true even when the deposit is a public fund made by an official charged with its custody, such deposit in the absence of statute, stands upon the same plane as other general deposits and a claim therefor is not entitled to preference. [Special Road Dist. v. Cantley, 223 Mo. App. 89, 8 S. W. (2d) 944, l. c. 945; In re North Missouri Trust Co. (Mo. App.), 39 S. W. (2d) 415, 417.]” [See, also, City of Aurora v. Bank of Aurora, supra; Round Prairie Bank of Fillmore v. Downey (Mo. App.), 64 S. W. (2d) 701; and, Parker v. Central Trust Co. of St. Charles (Mo. App.), 71 S. W. (2d) 106.] We call attention to the statement found at 7 Corpus Juris, page 633, that the prevailing view is that “deposits
Respondent‘s final contention is that if the deposits were legal and lawful and if the character of the funds did not make the trust company a trustee thereof nevertheless the transactions constituted, at least, special deposits which the trust company received and held in trust as such. As pointed out in our statement of the facts no agreement or understanding of any kind whatsoever between the city collector and the trust company concerning these deposits was shown. The deposits were not made subject to any conditions or reservations and the bank assumed no special or unusual obligation or undertaking in reference thereto whereby it became a mere trustee or bailee. Apparently the collector placed the money on deposit, and it was received by the trust company, as an ordinary or general deposit, whereupon the deposits, so made, became a part of the general funds or assets of the bank and the relation of debtor and creditor, as between the trust company and the depositor, was created. A special deposit of money in a bank usually consists of the delivery thereof to the bank under or pursuant to an agreement or arrangement between the depositor and the bank whereby the bank undertakes to hold same for a prescribed purpose, assuming the relation of a mere trustee or bailee thereof, and to return the same money or its equivalent to the depositor, or to a designated third person, upon the happening of the event agreed upon. A discussion of special deposits, what constitutes same and distinguishes them from general deposits will be found by reference to the following Missouri decisions: Paul v. Draper, supra; Wheelock v. Cantley, State Commissioner of Finance, supra; Fred A. Boswell Post of the American Legion v. Farmers State Bank of Mt. Vernon (Mo. App.), 61 S. W. (2d) 761; In re North Missouri Trust Company of Mexico, supra; Ellington v. Cantley, Commissioner of Finance (Mo. App.), 300 S. W. 529; Nichols v. Bank of Syracuse, 220 Mo. App. 1019, 278 S. W. 793; Craig, Trustee, v. Bank of Granby, 210 Mo. App. 334, 238 S. W. 507; and Butcher v. Butler, 134 Mo. App. 61, 114 S. W. 564. The contention concerning special deposits, as well as the other points involved in this case, will be found well reasoned and, we think, correctly ruled in the majority opinion of the Court of Appeals in this casе, cited supra. Our conclusion is that the facts of the transaction do not characterize the deposits as special but that on the contrary they were made, and received by the bank, as general deposits and “the bank simply became indebted to” Brown in his official capacity
We find no conflict in the view we take of this case, which concurs with that оf the majority opinion of the Court of Appeals, and In re Mt. Vernon Bank, 334 Mo. 549, 66 S. W. (2d) 850, with which it was thought the majority opinion of the Court of Appeals might be in conflict. The Mt. Vernon case dealt with a preference granted by statute and discussed, construed and applied the statute under the particular facts of that case.
The judgment is reversed and the cause remanded with directions to the trial court to allow the claim as a common claim. Sturgis and Hyde, CC., concur.
PER CURIAM:—The foregoing opinion by FERGUSON, C., is adopted as the opinion of the court. All the judges concur.
HERBERT PERKINS v. CHARLES R. BURKS, RICHARD ROPER and W. S. BROCK, Appellants.—78 S. W. (2d) 845.
Division One, December 21, 1934.