123 S.W.2d 142 | Mo. | 1938
Lead Opinion
Action at law against the directors of a failed bank to recover deposits lost by reason of the alleged insolvency of the bank. The suit was filed May 19, 1933, in the Circuit Court of Lewis County. By change of venue it reached the Circuit Court of Marion County where, on April 15, 1935, plaintiff filed an amended petition. On motion of defendants the court struck out said amended petition and dismissed plaintiff's cause of action. Plaintiff appealed. The only question presented on this appeal is as to the propriety of the court's action in striking out plaintiff's amended petition and dismissing his cause of action. We shall refer to the parties here as plaintiff and defendants as they were styled below.
The original petition was in 49 counts, the first seeking recovery for the aggregate amount claimed to have been lost by plaintiff himself and the others for losses sustained by other depositors who had assigned their claims to him. The amended petition is in 197 counts. It seeks recovery for the same losses but sets out in a separate count each deposit of each depositor. For the purposes of this appeal it will be sufficient to set out the first count of each petition, which are as follows:
"Par. 2. Plaintiff, during said period of time, deposited various sums of money in said Home Savings Bank to his credit and at the date of the closing of said bank, to-wit, January 30, 1932, the balance on deposit in said bank in favor of and due to plaintiff was $1179.31.
"Par. 3. Plaintiff further states that on said last named date said bank was duly placed in the hands of the State Finance Department of the State of Missouri, because said bank was insolvent, and ever since said date the same has been and still is in charge of said Finance Department of the State of Missouri; that on account of the insolvent condition of said bank, plaintiff has been unable to collect any part of the above named balance due him by said bank.
"Par. 4. WHEREFORE, Plaintiff prays judgment against the defendants and each of them for said sum, together with interest at the rate of 6 per cent per annum from the date said bank closed, and for the costs of this action."
"Paragraph 2. Plaintiff, on the 30th day of October, 1931, deposited in said Home Savings Bank of La Belle to his credit the sum of $2,000.00, and said sum was by said bank on said date received and credited to plaintiff's account therein; that thereafter, and before the closing of said bank, said plaintiff withdrew from said bank the sum of $1100.69 of said deposit and that on the said January 30th, 1932, at the date of the closing of said bank, there was due to plaintiff the sum of $899.31 on account of said deposit. *888
"Paragraph 3. Plaintiff further states that on January 30th, 1932, said bank was closed and by the defendants duly placed in the hands of the State Finance Department of the State of Missouri, because said bank was insolvent, and ever since said date the same has been and still is closed and in charge of said finance department of the State of Missouri; that on account of the insolvent condition of said bank and because said bank was and still is so closed, the deposits in said bank have not been paid to the owners of said deposits, and the depositors of said bank have been unable to collect said deposits, and plaintiff has been unable to collect said sum so due him from said bank.
"Paragraph 4. WHEREFORE, plaintiff prays judgment against the defendants and each of them for said sum of $899.31, together with interest at the rate of 6 per cent per annum from the date, January 30th, 1932, said bank closed, and for the costs of this action."
In the original petition the second count repleads by reference paragraphs 1 and 3 of the first count, alleges a deposit made by H.M. Lipes and the assignment of his claim to plaintiff and prays judgment as in the first count. In the amended petition counts 2, 3 and 4 are like count 1, except each alleges a separate deposit, giving date and amount thereof. The 5th count repleads by reference paragraphs 1 and 3 of the first count, alleges a deposit by H.M. Lipes and withdrawal of a named portion, giving dates and amounts and balance remaining when the bank closed, alleges the assignment by Lipes of his claim to plaintiff and prays judgment.
Plaintiff does not set out in his abstract of record the other counts of either petition but states that in the original petition counts 3 to 49, inclusive, are in the same language as count 2 thereof except for the name of the depositor who had assigned to him and the balance due; that the depositors named in the original petition were the same as those named in the amended petition and the deposits were the same; that in the original petition the pleading described the balance due when the bank closed while in the amended petition the separate deposits were described each in a separate count; that the aggregate amount sued for in each petition is the same, viz., $35,000. It is also stated in the abstract that in the amended petition counts 6 to 197, inclusive, are the same as count 5, except that each sets out a separate deposit, with the name of the depositor and the date and amount of the deposit.
It is agreed by the parties that said statements in the abstract are correct and that the abstract sets out all of the record necessary to an understanding of the questions presented for our decision, as clearly it does. Said agreement is incorporated in the abstract. *889
The record does not show on what specific ground the circuit court held plaintiff's original petition insufficient to state a cause of action, but that it did so hold seems apparent from the judgment, which not only struck out the amended petition but at the same time and as part of the judgment dismissed plaintiff's cause of action. Defendants did not attack the amended petition by demurrer. Instead they filed a motion to strike it out and to dismiss plaintiff's cause of action on the grounds that the original petition failed to state any cause of action against defendants, and that when the amended petition was filed, April 15, 1935, more than three years had elapsed since the bank closed on January 30th, 1932, and that, as the original petition stated no cause of action his action had become barred by "the three year Statute of Limitation," to-wit, Section 863, Revised Statutes 1929 (Mo. Stat. Ann., p. 1150). The record recites that the court, having considered the motion and being fully advised "doth consider that said motion should be and therefore said motion is sustained, and plaintiff's petition is hereby dismissed by the court and plaintiff's cause of action is hereby dismissed." It is apparent that the court proceeded upon the theory that the original petition stated no cause of action, that plaintiff's cause of action had become barred by limitation and that therefore he could not maintain an action for the relief sought. Such is defendant's contention here.
[1] The action is bottomed on Section 5381, Revised Statutes 1929 (Mo. Stat. Ann., p. 7600), which provides that "no president, director, manager, cashier, or other officer or agent of any bank . . . shall receive or assent to the reception of deposits, . . . after he shall have knowledge that it is insolvent or in failing circumstances," and that every person violating the provisions of said section "shall be individually responsible for such deposits so received. . . ." In the case before us defendants' principal contention is that the petition did not allege that they received or assented to the reception of the deposits in question. By the terms of the statute it is not necessary in order to create liability that the director or officer shall himself receive the deposit. It is sufficient that he assents to the reception thereof with knowledge of the insolvency or failing condition of the bank. So the dispute in this case gets down to the question of whether or not said petition sufficiently charges that defendants assented to the reception of the deposits. We think it does.
Defendants stress the contention that the statute is penal and must be strictly construed and that in order to state a cause of action under it the pleader must bring himself within its terms and provisions. They cite a number of cases announcing such to be the rule. Illustrative, see Brockman Commission Co. v. W.U. Tel. Co.,
But perhaps we have gone somewhat afield in the above observations relative to whether or not the statute in question is to be regarded as strictly penal. The question before us is not as to the meaning or construction of the statute, but one of pleading. So far as concerns the question here presented the statute is plain and unambiguous and needs no extrinsic aids to construction. It plainly requires that the officer charged shall have assented to the reception of the alleged deposits in order that there be liability. The cases cited by defendants, in their ultimate analysis, deal with the construction of the various statutes referred to rather than with questions of pleading, except insofar as they hold that, the statutes respectively referred to being penal, it was necessary for the plaintiff to allege all the facts necessary to bring his case clearly within the terms and provisions of the *891
statute. No case is cited directly in point on the question of pleading here involved except Ivie v. Bailey,
[2] It is generally true, whether an action is bottomed upon a penal statute or not, that the plaintiff must allege the facts which must be proved in order to entitle him to recover. But as to the manner of stating such facts or whether the petition sufficiently states them we perceive no reason why the petition should be scanned with more censorious eye and frigid spirit in one kind of civil action than in another. By Section 763, Revised Statutes 1929 (Mo. Stat. Ann., p. 983), the forms of pleading in civil actions in courts of record and the rules by which the sufficiency of the pleadings are to be determined, "except as otherwise specially provided by law," are prescribed in Article V of the Code of Civil Procedure, Chapter 5 of Revised Statutes 1929. This action is a civil action and we know of no special statutory provision taking it or similar actions out of the operation of the general code governing pleadings. Section 801, Revised Statutes 1929 (Mo. Stat. Ann., p. 1052), a part of said code, provides: "In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties." Said Section 801 (Sec. 2074, R.S. 1889) was applied in Baird v. Citizens' Ry. Co.,
While in said Baird case the court did not mention that the statute under which the action was brought was penal it was in fact what has sometimes been called the wrongful death statute and was and is at least as much a penal statute as is that under which the present action proceeds. [See Casey v. St. L. Transit Co.,
[3] Summarizing briefly the allegations of the original petition herein it stated that during the time involved the bank was a Missouri corporation engaged in the general banking business; that defendants were its directors and in actual charge of its business; that it was insolvent and in failing condition, all of which defendants well knew; that he deposited money in the bank; that the bank thereafter was closed and placed in the hands of the State Finance Department because of its insolvency and his money was thus lost to him.
In connection with those specific allegations regard must be given to statutory provisions, of which courts take judicial notice without their being pleaded. [The statutory provisions hereinafter referred to will be found, unless otherwise indicated, in Revised Statutes of 1929, and under corresponding section numbers in Mo. Stat. Ann., Vol. 11, under title "State Department of Finance."]
Section 5344 et seq., provide for the incorporation of banks and Section 5354 authorizes banking corporations to (among other things) "conduct the business of receiving money on deposit" — (a very important part of a bank's business).
By Section 5363 "The affairs and business of the corporation shall be managed by a board of directors or managers" who, by Section 5364, are required to take oath that they will faithfully and diligently administer the affairs of the bank and not knowingly violate or willingly permit to be violated any provision of law applicable to the bank. By other statutory provisions the directors are required to hold regular meetings at least once a month, to make certain reports to the Commissioner of Finance showing the financial condition of *893 the bank, its assets and liabilities, etc., giving among other specific items the amount of deposits, such reports to be published in a newspaper of general circulation in the community. Under paragraph 3 of Section 5316 the bank may, if it desires, place its affairs and assets under the control of the Commissioner of Finance, and by Section 5318 if it finds itself in failing condition it "shall immediately place itself in the hands of the commissioner." (Italics ours.) The statute makes provisions for the liquidation of the bank by the Commissioner of Finance or its resumption of business with his permission. These provisions need not be here noticed. Suffice it to say that when placed in the Commissioner's hands the bank ceases to receive deposits or do a banking business until, if at all, its affairs are straightened out and the Commissioner of Finance permits it to resume business.
We have mentioned these statutory provisions to show that the Home Savings Bank could not have remained open and "engaged in the general banking business," as alleged in the petition, without the assent of the directors. When the statute speaks of the bank doing certain things, as for example that it shall place itself in the hands of the Commissioner when it finds itself in failing condition, that of course means that it shall do so by and through its directors, the only way in which the bank can so act.
Now, since the reception of deposits is a vital (and if we know bankers a much desired) part of the business of a bank engaged in the general banking business, the fact that such bank is so engaged and is open for business is a standing invitation to the public to deposit money therein. And since, as we have shown, the bank cannot remain open, receiving deposits as a part of its "general banking business" as it of course expects to do, without the assent of the directors, how can it be said that they did not assent to the reception of the deposits? If banker A asks B to deposit money in his bank and B does so, does not A thus assent to the deposit? We do not believe it necessary that the directors should have specifically assented to each separate deposit or by express words have voiced assent to any. Assent may be indicated — expressed, if you please — by acts and conduct. If bank directors keep the bank open and thus invite deposits generally we think they may properly be said to thereby assent to each deposit made, at least absent some affirmative showing to the contrary.
[4] In an action founded upon a public statute the petition need not distinctly mention or refer to the statute but is only required to plead the facts which bring the case within the purview of the statute. [Emerson v. St. L. H. Ry. Co.,
Even were we to hold said original petition defective in the particular above discussed we think it would nevertheless be subject to amendment so as to save the bar of the Statute of Limitations, under our liberal statutes on amendments of pleadings, which, by Section 835, Revised Statutes 1929 (Mo. Stat. Ann., p. 1106), apply to actions for penalities as well as to other civil actions. Plaintiff was not given opportunity to amend further after his amended petition was stricken. His causeof action was dismissed at the same time and by the same order and judgment which struck out said amended petition.
In Adcox v. W.U. Tel. Co.,
Cytron v. St. L. Transit Co.,
"`What is the proper judicial attitude toward amendments with reference to the Statute of Limitations?' As said in Walker v. Railroad, supra: `The answer, in the language of NAPTON, J., in Lottman v. Barnett, 62 Mo. l.c. 170, is: "Amendments are allowed expressly to save the cause from the Statute of Limitations, and courts have been liberal in allowing them, when the cause of action is not totally different." The rule thus announced is steadily applied. *895 [Lilly v. Tobbein, 103 Mo. l.c. 490-1; Courtney v. Blackwell, 150 Mo. l.c. 271-2.]'"
Other authorities might be cited on the proposition that the original petition was subject to amendment even if it were held insufficient, but in view of our conclusion that it stated a cause of action we shall not lengthen this opinion by further discussion of said proposition. We have not considered whether or not it was subject to a timely motion to make more definite.
Mention is made in respondents' brief of the fact that the original petition did not state the amount of each deposit or the time when made but only alleged the balance due when the bank closed. That point is not stressed in the brief and we cannot tell therefrom whether or not respondents mean to contend that said petition was not amendable in that respect. In any event there can be no question but that it was subject to amendment in those particulars, and it was so amended. The amended petition could not properly have been stricken on such ground. The same evidence required under the original petition would support the amended petition and the same measure of damages would apply.
The judgment is reversed and the cause is remanded with directions to the circuit court to set aside its judgment, reinstate the cause and proceed therewith in accordance with the views herein expressed. Westhues and Bohling, CC., concur.
Addendum
The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. Tipton and Ellison, JJ., concur; Leedy, J., dubitante.