Akins v. Hull

• Decision Date: 16 June 1930
• Docket Number: No. 16698.,16698.
• Citation: Akins v. Hull, 30 S.W.2d 1101 (Mo. App. 1930)
• Parties: AKINS v. HULL et al.
• Court: Missouri Court of Appeals

30 S.W.2d 1101

AKINS v.HULL et al.

No. 16698.

Kansas City Court of Appeals. Missouri.

June 16, 1930.

Certiorari Denied June 30, 1930.

Appeal from Circuit Court, Platte County; Guy B. Park, Judge.

"Not to be officially published."

Action by Sarah E. Akins, administratrix of the estate of Frank J. Akins, deceased, against C. V. Hull and others.From the judgment, plaintiff appeals.

Affirmed.

See, also, 277 S. W. 962;Akin v. Hull, 222 Mo. App. 1022, 9 S.W.(2d) 688.

Sterling P. Reynolds, of St. Joseph, and A. D. Gresham and W. J. Gresham, both of Platte City, for appellant.

German, Hull & German, of Kansas City, and James H. Hull, of Platte City, for respondents.

ARNOLD, J.

This is an action to recover upon an alleged liability of defendants, as directors of the Bank of Dearborn, Platte County, Mo., under the provisions of section 11763, Rev. St. 1919, for receiving deposits made by plaintiff as administratrix of the estate of her deceased husband, Frank J. Akins.The deposits involved were made as follows:

  January 15, 1923, $548.75
                  January 17, 1923, $5.35
                  January 19, 1923, $257.56
                  January 24, 1923, $8,010.61
                  January 24, 1923, $8.67
                  February 2, 1923, $.30.
                  February 3, 1923, $6.78.
                  September 11, 1923, $73.60.
                

The petition is in two counts, the first alleging that at said times the bank was insolvent, or in a failing condition, and that defendants, as directors, knew of such condition; that "defendants and each of them assented to and solicited and received deposits and the creation of debts thereby caused due to the plaintiff, knowing that said bank was insolvent and in a failing condition."That on the 18th day of September, 1923, plaintiff had on deposit in said bank the sum of $5,294.79, as administratrix of said estate, and which was deposited in said bank while it was insolvent and in a failing condition, a fact known to defendants but unknown to plaintiff; that on said last-named date plaintiff demanded of defendants payment of said sum, which was refused.Judgment is asked in the sum of $5,294.79, with 6 per cent. interest from September 18, 1923, and costs.

It is alleged in the second count, as in the first, that the bank was insolvent and in a failing condition, and "that said bank was insolvent and in a failing condition by reason of the defendants failing to exercise due and lawful care in the management and control of said bank and of its funds and finances as the law required, and by reason thereof said deposits, so made by plaintiff as aforesaid, were lost to her; that said defendants, at all times herein, negligently failed and refused to hold regular meetings of its board of directors each month as required by law, to pass on the business of the bank, and thereby negligently failed to properly protect the interests of the depositors of said bank."That on September 18, 1923, plaintiff had on deposit in said bank the sum of $5,294.79, so deposited between the dates mentioned; that demand was made for payment thereof, which was refused.The prayer is the same as in the first count.

The answer to the first count admits the death of Frank J. Akins; that plaintiff is the duly appointed administratrix of his estate, as pleaded; admits the incorporation of the Bank of Dearborn, as alleged, and that during the year 1923, up to October of that year, defendants were directors of said bank, and generally denies each and every other allegation of the petition.Further answering, and as affirmative defense, it is alleged that since on or about October 1, 1923, the assets and affairs of said Bank of Dearborn have been in the hands of Frank C. Millspaugh, commissioner of finance of the state of Missouri, and under his direction and control and being administered by him for the benefit of the depositors, creditors, and stockholders thereof; that the assets of said bank, in the hands of said commissioner, are sufficient to pay substantial dividends to all creditors or depositors, entitled thereto, but the amount of said dividends is unknown and unascertainable and will be until the said liquidation has been fully completed; that the institution of this action is therefore premature.

In answer to the second count, the admissions are the same as in the first count, and a general denial is interposed.Further answering to the second count, it is alleged, as in the answer to the first count, the affairs of the bank are in the hands of the state finance commissioner, and that the assets of the bank in the hands of said commissioner are sufficient to pay a substantial dividend to creditors or depositors, as alleged in the answer to the first count; that the institution of this suit is premature, and if plaintiff has any right of action under the facts alleged in the second count of the petition, she would not have any cause of action, nor would such cause of action accrue until the affairs of the bank had been administered and fully liquidated; and that only at such time could the amount of plaintiff's damage, if any, be ascertained.

The reply is a general denial.Upon the pleadings thus made the cause was tried to the court and jury, resulting in a verdict for plaintiff in the sum of $73.60 with interest from September 18, 1924, in the sum of $22.25, and judgment was entered in the total sum of $95.85.Plaintiff's motion for a new trial was ineffectual, and she has appealed.

This is the third appeal to this court in this case.The suit was originally filed in September, 1924, and was tried to a jury in Platte county, where a verdict was rendered for plaintiff.The court set aside the verdict upon motion of defendants, on the ground that "the verdict is not supported by the evidence, and there is not sufficient evidence on which to found a verdict."An appeal was perfected to this court, and the ruling of the trial court in granting a new trial was sustained.Akin v. Hull et al., 277 S. W. 962.The case was again tried and a verdict returned for plaintiff.Defendants appealed to this court and the judgment was reversed and the cause remanded.Akin v. Hull et al., 222 Mo. App. 1022, 9 S.W.(2d) 688.The case was again tried, and the trial court held plaintiff had failed to make a case for the jury as to the seven deposits made in January and February, 1923, and submitted the case to the jury only on the deposit of September 11, 1923, in the amount of $73.60.A verdict for plaintiff in that amount with interest from September 18, 1924, in the sum of $22.25, was returned and judgment was entered for $95.85.Plaintiff's motion for a new trial was unavailing and she has appealed.

At this point something of the history of the Bank of Dearborn would seem to be appropriate.The bank, located in the town of Dearborn in Platte county, Mo., was a state institution and had been in business for many years prior to the time it was taken in charge by the state finance commissioner on March 9, 1922.The finance department charged off several thousand dollars, the amount being replaced with what the finance department found to be solvent assets.A reorganization was then effected and the defendants herein were elected as the board of directors.Thereafter the bank was operated until October 1, 1923, at which time it was again placed in the hands of the state finance commissioner, at the request of the board of directors.

It is in evidence that on September 30, 1923, unusually heavy withdrawals were made by depositors.The reserve was reduced below the legal requirement.A meeting of the directors was called on September 30, 1923, at which a report was made as to the condition of the bank, and it was decided the bank should suspend operations.The finance department was notified and assumed charge, as above indicated.

There are nine assignments of error, all directed to the same point, to wit, that the court erred in withdrawing from the consideration of the jury the charges involved in all items of deposit save that of September 11, 1923, $73.60.Under point 1 of plaintiff's points and authorities, it is urged the law makes it the duty of the directors to know the financial condition of the bank at all times, citing authorities including section 11752, Rev. St. 1919.This section provides for the holding of meetings of the board at least once a month, and for the approval of...