*1 H. Appellant, L. F. v. A. D. H. T. Smith, Hutcherson, Thompson, (2d) Hall . 123 W. J. W. and Will S. Haldeman Smith, 142. Two, 20, 1938.
Division December *2 Rendlen, Rendlen, Camp White & Fowler, Cottey, P. J. L. A. F. D. bell Campbell appellant. John Hilbert, Rouse, Edwards, Mahan,
Walter S.H. Waldo & Mahan Simpson Fuller respondents. and Noah W. *3 against bank
COOLEY, law of a failed the directors C . Action alleged insolvency deposits of the of the by to recover lost reason 1933, in of Lewis May 19, Court bank. The suit was filed Circuit of Marion County. change the Circuit By venue it reached Court of petition. where, an April 15, 1935, plaintiff amended County on filed struck out said amended On of the court motion defendants appealed. The Plaintiff plaintiff’s cause of action. dismissed .and is of the only question appeal propriety as to the presented on this dis- striking plaintiff’s out amended and court’s action parties here as We shall refer to missing his cause of action. styled below. they were plaintiff and defendants as recovery seeking counts, in 49 the first original petition was plaintiff him- by to have been lost aggregate amount claimed for the and, had depositors who other by the others losses sustained self in 197 counts. assigned to him. amended their claims separate count sets out recovery seeks for the same losses but appeal it depositor. For the of this deposit purposes of each each petition, which are the first count of each will sufficient to set out as follows: Count
“1st herein mentioned times all of that at “Par. 1. Plaintiff states corporation, Belle, Missouri, awas Savings the Home Bank of La the State of laws of virtue organizеd existing and and general banking busi- engaged Missouri, and of Missouri; County, Belle in Lewis of La town ness long period were mentioned and times herein defendants at all preceding elected, said date were the di- duly qualified acting and of bank during rectors said period time had said of were and been in charge the actual of thereof; during the business all of time Savings said Home said Bank La Belle, Missouri, of was insolv- failing condition, and in a ent all of which knew. defendants well Plaintiff, during “Par. 2. period dеposited of time, said various sums money Home Savings said Bank credit to his and at to-wit, closing bank, date January said the bal- deposit ance on bank plaintiff in favor said due $1179.31. Plaintiff
“Par. 3. further states that date on said last named duly placed said bank was hands State Finance Depart- ment of the State of Missouri, insolvent, because said bank was ever since date charge said the same has been and still Department Missouri; Finance State account of bank, plaintiff the insolvent condition of said unable col- has been any part lect of the balance above named düe him said bank. WHEREFORE, against prays judgment “Par. 4. Plaintiff sum, together them for defendants each of with interest said per6 the rate per closed, cent annum from date for the of this costs action.”
“AMENDED PETITION
“1st Count Plaintiff, “Paragraph 1. petition, for amended states at all Savings Belle, times herein mentioned Home Bank of La Missouri, organized existing corporation, under and Missouri, engaged virtuе of the laws of the State of such was *4 general Lewis banking the business in town of La Belle in the County, Missouri; at all herein mentioned that the defendants times elected, were a long and for said date were period.preceding duly qualified, acting during bank all of and directors of said and said period charge of time were the actual of the busi- and had been in thereof; Savings all time during ness that of said Home Bank said failing all Missouri, condition, of La in a Belle, insolvent and of which the them well knew. defendants and each of Plaintiff, October, 1931, the 30th de-
“Paragraph day 2. on of Savings Bank La Belle his credit posited in Home of to sum said the by said bank on date received $2,000.00, said sum was said of and therein; thereafter, be- that plaintiff’s to account and and credited plaintiff closing bank, withdrew from bank of said said fore the said that deposit January and on the of said $1100.69 said the sum of closing bank, of the said there was due the date of 30th, deposit. of on account said plaintiff $899.31 of to the sum 888 January 30th,
“Paragraph on 3. Plaintiff further states that duly by placed bank defendants was closed and the said Missouri, of State of Department hands the the of State Finance the same said date insolvent, because ever since said and department charge finance has been still is closed and and condition Missouri; insolvent of the State of the account closed, de- is so the and because bank was and still said bank said deposits, posits paid been said in said bank have not owners said de- depositors have been unable collect and the of said bank him sum so due plaintiff has collect said posits, and been unable to from said bank. against "WHEREFORE, judgment prays 4.
“Paragraph plaintiff $899.31, together the sum defendants and each them said date, January the per the 6 annum from per interest at rate of cent this action.” 30th, 1932, closed, costs of said bank the reference original repleads by count petition second allеges by deposit a H. count, 3 made paragraphs of the first judg- plaintiff his Lipes assignment prays M. claim petition 2, 3 and counts ment as in count. In the amended first alleges giving except separate deposit, count each are like para- repleads by reference date thereof. The 5th count and amount count, Lipes H. M. graphs alleges deposit 1 and 3 of the first giving amounts and portion, and withdrawal of a named dates assignment closed, alleges the balаnce when the bank remaining Lipes plaintiff prays judgment. of his claim to the other counts set
Plaintiff does not in his abstract record out original petition counts petition of either but states except for 49, inclusive, langauge are thereof in the same count balance assigned him depositor the name of the who had due; depositors original same petition were that the named' deposits were petition named in the amended and the as those balanсe same; pleading described that in separate petition the the bank the amended due when closed while aggregate count; that separate deposits were described each $35,000. same, viz., is also for in amount sued each 6 to that in amended counts stated in the abstract sep except each sets out as count inclusive, are the same depositor and amount deposit, name of the and the date arate with the deposit. parties statements the abstract are agreed It is *5 necessary to an sets out of the record the abstract all that correct and presented clearly questions decision, our understanding of the incorporated in the abstract. agreement is it does. Said
889 specific ground record does not court show on what circuit plaintiff’s original held of ac- petition insufficient to state a cause tion, judgment, but apparent that did' so hold seems from which petition struck оut the same time and the amended part judgment plaintiff’s cause of action. De- dismissed petition by fendants did not attack demurrer. the amended Instead they plaintiff’s a motion and filed to strike it out to dismiss cause grounds petition any of action on the failed to state that against pe- that defendants, cause action when amended and years elapsed filed, April 1935, more than three had tition was 30th, that, orig- as the January since bank closed on action his become petition inal cause of action had barred stated no Limitation,” to-wit, year Section Re- “the three Statute of 1150). Ann., recites (Mo. 1929 Stat. p. vised Statutes record' being fully motion advised court, having that the considered the ‘‘ motion doth that motion be and therefore said consider should hereby by the is is dismissed court sustained, plaintiff’s hereby apparent is plaintiff’s action is dismissed'.”' It cause of original petition proceeded upon theory that that the court action, рlaintiff’s cause of action had become stated no cause of that an by limitation he could not maintain barred and that therefore here. sought. is contention action for the relief Such defendant’s Statutes Revised The action is bottomed (Mo. provides president, “no p. 7600), Stat. which agent director, cashier, any manager, other officer or deposits, . . . reception of . . . shall assent receive or failing circum knowledge that insolvent after he shall it is hаve sec stances,” provisions person violating every deposits received. so responsible for individually tion “shall be principal is contention . .” case before us defendants’ . allege they or assented to received that the did statute question. reception deposits By the terms liability or offi that the director necessary is not in order to create he assents sufficient that deposit. shall himself cer receive failing insolvency knowledge receрtion thereof with gets dispute case down to in this condition of the bank. So the charges sufficiently question whether or not said think it does. reception deposits. We assented to the defendants penal must that the statute contention Defendants stress the. action to state cause and that in order strictly construed pro within its terms bring himself pleader must it the announcing be the rule. such to number of cases They cite a visions. Co., U. v. W. Tel. Commission Co. Illustrative, Brockman see App. said, thе court Mo. S. W. where 626, App. Mo. *6 890 631,
l. c. a 163 922, providing S. W. l. c. speaking of the statute penalty fixed trans promptly of a to telegraph company failure telegram: mit a It is course, penal “The statute of in nature. is, its recover, to be strictly construed; must to plaintiff, in order bring itself clearly provisions within thereof.” Such the terms and general purposes is the of penal as to this rule and for the statutes it may case in ques be statute conceded without discussion penal chаracter, be, tion is in times been held to as it has several liability imposed; though least as to that this court observe held, 683, K. 334 Co., 672, en banc C. Pub. Serv. Mo. Cummins v. 698, (2d) may 66 920, part penal S. W. be statute 695, 699-700, 27 part Wilhite, App. remedial. In Houston v. Mo. 772, holding (2d) 775, arising S. W. Sec court, a claim 5381, recognized penal as supra, assignable, tion said statute Hill, 263, Utley 232, of this said in v. Mo. view what court had penal S. is 1091, 55 W. that it sense that but said not assigned, that: “There mulct or cause action cannot be is no punishment their de prescribed against forfeiture the officers as depositor Weidenbeck, fault. 76 Fed. The [Fitzgerald v. 695.] any greater than from the sum the debt owed cannot collect directors 973, Poole, 1021, 272 W. App. him 220 Mo. the bank. v. [White Therefore, statute, although imposing or the the Constitution 1028.] having penalty, liability of the characteristics of some may ordinarily It penal as statutes are understood.” statute to indicating observed, further that said statute was intended be remedial, Re 5383, compensatory pаrtly be least II, 7602), part Article (Mo. p. vised Statutes Stat. provides supra, appears, Chapter in which article Section ‘‘ against may enforced article to and be that This shall extend agents officers, deceased and administrators of such the executors ’’ managers. the above observations perhaps gone But afield in we have somewhat regarded as be question is to relative whether statute in to meaning strictly penal. question before us not as far сoncerns pleading. one So statute, construction unambiguous plain presented here question statute is requires plainly no to construction. needs extrinsic aids alleged reception have charged shall assented to officer defendants, liability. The cases cited deposits in order that there the various with construction of analysis, deal in their ultimate except in- pleading, questions rather than statutes referred being respectively referred to that, thе statutes they sofar as hold allege the facts neces- all plaintiff necessary for the it penal, provisions within the terms and clearly bring his sary case statute. No ease is plead- directly point cited question on the ing here except (2d) involved Ivie v. 5 S. W. Bailey, 319 Mo. by plaintiff. cited supra, That was an action under Section to recover deposits, similar case. instant *7 Ivie ease is not set out but opinion. By summarized reference to the the files of case in in our find that clerk’s officewe respect the here question essentially it one was the same as the now before us. It apparently by was en banc as treated this court stating a cause of action, but without discussion of or reference to any claimed supposed; alleged infirmity other than uncon- the, stitutionality of the statute. For that the reason and' because of earnest insistence specific of counsel that question they press the now never reаlly has been by Ap- decided this court our Courts of peals are tuiwilling dispose by referring of the case merely the Ivie precedent. case hardly ás It cán the be so considered specific point question, point been since such not to seems have urged by there counsel or noticed court. the is generally true, upon whether an action is 'bottomed penal statute not, plaintiff allege that the must facts the which proved must be in order him to entitle recovеr. But man as to the stating ner of petition facts or sufficiently' the states whether perceive them we why petition no reason the should be scanned eye more frigid spirit censorious action one kind of civil By 763, than another. (Mo. Section Revised 1929 Stat. Statutes Ann., p. 983), the pleading forms of in civil actions courts record and rules by the which to be sufficiency pleadings the of the are determined, “except by law,” are specially provided as otherwise prescribеd in Article Y 5 Procedure, Chapter of the Code of Civil of Revised 1929. Statutes This action is a civil action know and we special statutory no provision taking similar actions it or out of operation general governing the the pleadings. code Section .801, (Mo. Revised 1929 p. 1052), Stat. part Statutes code, provides: “In pleading, purpose the construction of a for the determining liberally construed, effect, allegations its its shall be with a justice view parties.” to substantial bеtween Sec the Said (See. 1889) 2074, tion 801 R. S. applied was v. Baird Citizens’ Ry. Co., 265, 78, (the 146 48 Mo. W. an mother S. action dead) being “damages” father of a minor child 4425, 1889, Revised Statutes child’s death caused charge negligence of the defendant’s servants of its train. In that only gave a,right case the defendant claimed that the statute of ac petition when minor child died unmarried and that as tion state that said child died unmarried failed to stated no cause of position This court said defendant’s was аction. correct unless 892 it “appears from tender was of that the deceased sneh
years as to justify childless that was unmarried and he inference death;” his six was alleged child years age court) (said the time of death he was his incapable therefore view entering marriage, “in into a contract of (R. code requiring pleadings rules liberal construction of S. 1889, 2074), sec. directing rather courts to consider substance (R. 1889, than 2117),” form have S. must sec. be held to alleged sufficiently was like effect deceased unmarried. To see Railroad, 80; McIntosh v. Mo. Pac. Mo. 15 S. Czeze W. wzka v. B.-B. 121 Mo. Railroad, S. W. 911.
While in said Baird court not mention case did the stat ute brought penal under which fact action was in what wrongful sometimes been called death statute has and is penal at least as statute much a as is that under which present proceeds. Casey action L. 116 Mo. Co., v. St. Transit [See App. 235, case, 91 W. S. W. same Mo. *8 (Sec. R. 1899), wherein said Sec. R. S. 1889 construed.] Summarizing allegations briefly the the of during herein it that the time the bank a Mis stated involved souri de corporation engaged general banking business; in the charge business; that fendants were its in actual of its directors and it failing condition, was insolvent defendants and in all of which deposited bank; money well he in that the knew; that bank there the De placed after closed of State Finance and the hands the insolvency money partment its was thus lost to him. because of and his allegations regard given specific be connection with those must judicial to which notice without statutory provisions, of courts take being pleaded. statutory provisions their referred hereinafter [The of found, indicated, to Statutes will be otherwise unless Revised corresponding section numbers Mo. Stat. and under Department Vol. of 11, under title “State Finance.”] incorporation and 5344 et of Section for the banks seq., provide things) banking corporations (among Section 5354 to other authоrizes very im- qí receiving deposit” (a money the “conduct business — business). portant part of a bank’s corporation shall By affairs business of the “The and who, managers” by Section a managed by be of directors board faithfully they diligently required take oath that will to are knowingly will- violate bank and not affairs administer the the applicable to provision of law ingly any permit to be violated required to directors are provisions the By statutory bank. other reports month, make сertain to meetings least once regular hold of financial condition showing the Finance to of the Commissioner bank, etc., the its assets giving specific and liabilities, among other of deposits, reports items amount published such in a to news- paper general of paragraph circulation in community. Under of Section 5316 the may, desjres, place bank it its if affairs as- under the sets control of Finance, the Commissioner of Sec- 5318 if failing tion it finds itself in immediately condition it “shаll place (Italics ours.) itself the hands commissioner.” provisions liquidation statute makes for the the bank Com- resumption permis- missioner of Finance or its business with his provisions sion. These it say need be here noticed. to Suffice placed that when in the Commissioner’s hands bank to ceases banking if deposits until, receive do a all, business its affairs straightened are permits out Commissioner it of Finance business. resume provisions "We statutory have mentioned these show Savings open Bank “engaged Home could have remained general business,” alleged banking petition, without speaks assent of the directors. When the statute the bank things, doing example certain place as for it shall itself condition, hands of the Commissioner when finds in failing it itself through directors, that of course shall means that it do so its way in which bank act. can so Now, since reception deposits (and if know a vital desired) part engaged bankers much the business of bank general banking business, engаged fact is so open standing public business is to de- invitation posit money since, shown, therein. And as we have the bank cannot open, receiving deposits part remain “general banking aas of its expects do, business” course without the assent directors, reception they how can be said that did not assent *9 deposits? deposit If A B to money the banker asks his bank and B does A thus so, deposit? does not assent to the not We do be- necessary that lieve it directors specifically the should have assented separate deposit by express to each words have voiced assent to if any. may expressed, you please by Assent acts and indicated — — keep open If bank conduct. directors the invite de- thus generally properly posits they may thereby we think be said to as- deposit showing each absent some made, sent to least affirmative contrary. to the upon public
In an action a founded statute neеd required refer statute distinctly to the but not mention bring case purview which within plead to the facts of the Co., Ry. H. 161, L. & Ill Mo. v. St. statute. S. W. [Emerson (Mo.), Moyer 839; & A. Railroad Co. 198 W. 1113; S. v. C. Williams v. A. T. & do Ry. Co., 666, S. F. 136 W. Neither Mo. S. 304.] we consider necessary to exact words statute. use the case, instant specific while the words assailed not does reception state that defendant to the directors assented deposits appears, in question, it from which such states facts assent merely corollary might necessarily inferentially —as say specifically of the facts "We defendants’ assent stated. think reception alleged. deposits sufficiently to the of "the original petition the par- Even were we to defective in hold said subject above ticular discussed we think it would nevertheless be Limitations, to to the bar amendment so as save of the Statute pleadings, which, under our liberal statutes amendments (Mo. p. ap- 835, 1106), Stat. Revised Statutes Plain- penalities for well as other civil actions. ply to actions to given to after his amended opportunity amend further tiff was not cause action was dismissed at stricken. His the same petition was judgment which struck said order out the same time petition. amended Co., 157 S. W. App. U. Tel. 171 Mo.
In Adcox W. v. telegram, promptly failure to transmit penalty an action for agreed agent charged the defendant’s addressee, allegation charges which did from collect usual statute, applying penal statute bring the case within charges paid were tendered advance. only where usual expressly his petition so plaintiff permitted to amend telegram were charges for the tendered allege that amendment was held transmission. time was delivered for the fact statute. The court said permissible under our change the re- law in penal statute “does not action was pleadings in case.” lation to an Co., 104 S. W. L. 205 Mo.
Cytron Transit v. St. giving of action wrongful a cause death statute action under the child. The minor death of a jointly the father mother run an statutory period limitation had father sued. After alone This co-plaintiff. making the mother petition was filed amended said, permissible. 205 Mo. the amendment court en banc held c. 111. 700, 104 W. l. l. c. “ amendments judicial toward proper attitude is the ‘What v. Rail Walker Limitations?’ As said Statute of reference J., in Lott language answer, ‘The road, supra: Napton, ex “Amendments allowed are 62 Mo. l. c. is: Barnett, v. man Limitations, courts from the Statute thе cause save pressly *10 them, is not when cause action allowing liberal in been have steadily applied. announced is rule thus totally different.” v. [Lilly Tobbein, 103 490-1; Blackwell, Mo. l. Courtney c. v. ” Mo. l. c. 271-2.] Other might proposition original authorities be cited on subject it if were insufficient, amendment even held view of our conclusion that it cause of stated action shall we lengthen not opinion this by further discussion proposition. We have not subject not considered whether it timely motion tо make more definite. respondents’
Mention made brief of fact deposit did state each amount of when time alleged made but when balance due the bank closed. That point is not stressed the brief cannot tell therefrom whether respondents mean to petitiofn contend was not respect. amendable any question there event can no subject but that particulars, to amendment in those was so amended. The amended petition properly could not have ground. been stricken on required The same evidence under the original petition, support would the amended and the same damages apply. measure would judgment the cause is reversed and with direc is remanded its judgment,
tions to circuit court to set aside reinstate the cause proceed expressed. therewith in views herein accordance Bohling, CC., Westhues and concur. foregoing opinion C.,
PER Cooley, adopted CURIAM:—The Tipion opinion Ellison, JJ., court. concur; Leedy, of the J., dubitante. Pryor, Relatrix, the relation of
State Lola Alice Missouri County. Judge v. B. L. Probate Lewis Court of Anderson, 181. (2d) W. Two, Division December 1938.