I concur in the principal opinion written by CLARK, J. It reaches the correct conclusion under the facts before us.
The facts of this lawsuit can be stated in simple language. In 1922 the Superintendent of Insurance ordered a ten per cent reduction in the cost of fire insurance. The insurance companies went to law to contest this order. While their suit was going through the courts the companies collected the old rate, including the ten per cent, but agreed to pay back this ten per cent to the policyholders if they lost their case. After they lost their case they paid back this ten per cent to some of the policyholders, but not to all. Then the Superintendent went to the circuit court to make the companies pay up what was left. He filed there a motion to compel the companies to pay into thecircuit court the amount they had not refunded to the policyholders.1 The circuit court granted the Superintendent's request and ordered the companies to pay intocourt the balance still in their hands and appointed masters to find out how much each company still owed.2 Then the companies, one by one, submitted their records to the masters and paid up what they owed. As this money was paid, the circuit court had it deposited in the defendant bank. The circuit court made an order on the bank that the money should be deposited in the name of the court. The circuit court also ordered that the bank could not pay out any of this money unless the circuit court ordered it to do so. The bank paid out no money except on the order of the circuit court. Then the circuit court paid the policyholders, paid the expenses of doing this and turned over the rest of the money to the Superintendent.
By this lawsuit, as it now stands, the Superintendent seeks to force the bank to repay him out of the bank's own money the same amount *Page 556 of money which the circuit court has spent out of the fund for expenses in distributing the refunds to the policyholders. At the beginning of this lawsuit the Superintendent claimed the bank should repay him the entire amount of money which the bank had already paid out on order of the circuit court, even including the amount of money received by the policyholders. But now there is no complaint about the money paid out of the fund to the policyholders. Nor is there now any complaint about the balance of the fund paid on order of the circuit court to the Superintendent. The only complaint is about the money which was paid out of the fund on the order of the circuit court for the expenses which were incurred by the circuit court.
The Superintendent says that the bank should not have made any payments at all out of the deposit, even though the circuit court ordered the payments, for the reason the bank did not have the right to receive the deposit of the money in the first place. I think the bank did have the right to receive the deposit ordered by the circuit court. Of course, if the circuit court had the right to deposit this money in the bank, then the bank can be guilty of no wrong in receiving the deposit of the money. Let us look at the record. The Superintendent asked that the money be paid into the circuit court. The circuit court, by its judgment, ordered the money paid into court. This is a proper procedure where an accounting is made.3 Then as the circuit court received the money it was duty-bound to give it the same protection that a prudent business man gives his own money. That is common sense. That is what the circuit court did. The rule is expressed, "A trustee who would continuously keep for any length of time a large sum of money about his person or in his house, rather than deposit it for safe keeping in a solvent and reputable bank or trust company, where all precautions may be exercised for its safety, might justly be regarded as derelict in duty."4
The Superintendent also says the bank had no right to take the circuit court's deposit because the bank knew at the time [579] of the deposit the circuit court was going to distribute the money to the policyholders to whom it belonged. The Superintendent sometime later claimed that he, instead of the circuit court, should have been the one to pay the money back to the policyholders. Still the Superintendent never claimed this when the deposit was made. Neither he nor any one else objected to the circuit court ordering the money deposited in the bank. He kept still. Yet he now says that the bank did not at the time accept the court deposit in good faith. It is true the Supreme Court decided later that the Superintendent was the proper party to have paid back the money to the policyholders, but *Page 557 that was several years after the deposit was made and the money paid to the policyholders by the circuit court. Will anyone say that the bank should not have obeyed the orders of the circuit court when they were made because the Supreme Court later on came to this decision? But that is what the Superintendent now says. How could a circuit court ever safeguard money by putting it in a bank if the bank did not have to pay it back when the court ordered it? Under all these facts the bank not only had the right but the duty to obey the orders of the circuit court. There is nothing in this case which shows misconduct or bad faith on the part of the bank. Therefore, the Superintendent is not entitled to a judgment against the bank and the judgment in favor of the bank should be affirmed. Leedy, Tipton, Clark and Ellison,JJ., concur.
1 Aetna Ins. Co. v. O'Malley. 342 Mo. 800, 118 S.W.2d 3. l.c. 8 and 9.
2 State ex rel. Abeille Fire Ins. Co. v. Sevier, 335 Mo. 269,73 S.W.2d 361, l.c. 370.
3 18 Corpus Juris, "Deposits in Court," sec. 10.
4 26 Ruling Case Law, p. 1314. Also see Bogert, Trusts and Trustees, sec. 598; Scott on Trusts, sec. 180.