Collier v. Consolidated Cab Co., Inc.

• Decision Date: 03 December 1979
• Docket Number: No. KCD,KCD
• Citation: 591 S.W.2d 391
• Parties: 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. 30465.
• Court: Missouri Court of Appeals

Page 391

591 S.W.2d 391

8 A.L.R.4th 979

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.

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:

"TYPE OF ACCOUNT

(X) Individual

[ ] 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.

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