Beckman v. Kinder
| Decision Date | 04 November 1942 |
| Parties | J. Henry Beckman and Edith B. Beckman, Appellants, v. James A. Kinder, Respondent |
| Court | Missouri Court of Appeals |
Appellant's Motion for Rehearing Overruled November 17 1942. Petition for Writ of Certiorari Denied by the Supreme Court January 29, 1943.
Appeal from the Cape Girardeau Court of Common Pleas; Hon. J. Henry Caruthers, Judge.
Affirmed.
J Grant Frye and Gerald B. Rowan for appellants.
(1) Plaintiffs' evidence established beyond question the negligence of defendant, and that plaintiffs were damaged by such negligence, and the law does not permit one whose act has resulted in loss to another to escape liability because the exact amount of damages occasioned by his negligence are not susceptible of exact proof and where, as here, plaintiffs show all the probative facts which have a bearing upon the amount of their damages, the question of the amount should be decided by the jury as are other fact questions. City of Kennett v. Katz Construction Co., 273 Mo. 279, 202 S.W. 558; Thayer-Moore Brokerage Co. v. Campbell, 164 Mo.App. 8, 147 S.W. 545; Couch v. Kansas City So. Ry. Co., 252 Mo. 34, 158 S.W. 347; Squires v. City of Chillicothe, 89 Mo. 226, 1 S.W. 23. (2) The fact that a fertile imagination might conceive of the possibility of a diamond mine being discovered on land still owned by the defunct bank will not preclude plaintiffs from recovering what a jury would assess as their probable damages in view of the testimony of the liquidator of the bank that as a conservative estimate the bank would not probably pay out more than five or six per cent in addition to what had already been paid. City of Kennett v. Katz Construction Co., 273 Mo. 279, 202 S.W. 558; Thayer-Moore Brokerage Co., v. Campbell, 164 Mo.App. 8, 147 S.W. 545. (3) If for no other reason, plaintiffs were damaged by the delay occasioned by defendant's negligence and the degree of proof as to the amount of plaintiffs' damages is not any stricter than upon any other issue in the case, and plaintiffs are only required to adduce the best evidence of which the nature of the case is capable. City of Kennett v. Katz Construction Co., 273 Mo. 279, 202 S.W. 558. (4) Plaintiffs' evidence established the fact of damages, and plaintiffs should not be precluded from recovering because of uncertainty as to the amount of their damages. City of Kennett v. Katz Construction Co., 273 Mo. 279, 202 S.W. 558. (5) This court is bound by the last controlling decision of the Supreme Court in Wear v. Lee, 87 Mo. 359, holding that the payee of a check who receives it in the same place where the drawee bank is located may preserve recourse against the drawer by presenting it for paymnt at any time before the close of banking hours on the next day, and if, in the meantime, the bank fails, the loss will be the drawer's. Respondent's contention that a case such as the instant case is not provided for by the Negotiable Instruments Law is completely answered in Farm & Home Savings & Loan Ass'n of Missouri v. Stubbs (Mo. App.), 98 S.W.2d 320, 335. (6) The fact that a payee deals extensively in checks in the course of his business does not relieve him of the necessity of complying with the rules of law regarding presentment and collection. Brookside Mills v. Railway Express Agency (Tenn.), 95 S.W.2d 301, and Lowell Co-Operative Bank v. Sheridan, 284 Mass. 594, 188 N.E. 636. Certainty and uniformity in the law are always desired, particularly with respect to matters constantly arising in the business world. Union Trust Co. v. McGinty, 212 Mass. 205, 98 N.E. 679, 680.
W. Osler Statler for respondent.
(1) Plaintiffs failed to prove that they had been or that they would be damaged by defendant's alleged negligent act. Damages which are uncertain or contingent cannot be made the basis of a recovery. A plaintiff, to support a recovery, must show that he has been damaged by an act of defendant. Taylor v. McGuire, 12 Mo. 318, 207; Saunders v. Brosius, 52 Mo. 50. (2) Wear v. Lee, 87 Mo. 358, and other cases cited by appellant holding that a payee to whom a check is delivered by the drawer in the place where the drawee bank is located may preserve recourse against the drawer by presenting it for payment before the close of banking hours on the next day, and if, in the meantime, the bank fails, the loss will be the drawer's, are not applicable where, as here, the suit is by the drawers against the payee to require the latter to make good a loss that the drawers of the check have suffered. (3) Appellants have pleaded, tried and briefed and argued the case as though it were a true negligence case, but have failed to establish the necessary elements of a negligence case. (4) None of the cases cited by respondent involve a collector of revenue. Section 11082, R. S. Mo. 1939, requires that taxes be paid in gold or silver coin or legal tender notes of the United States, or in national bank notes. Here respondent, as a personal favor to appellants, accepted a check subject to its payment in cash as provided for by the statute. This distinguishes the transaction from the usual commercial transaction where payment is made by check. (5) Section 3201, R. S. Mo. 1939, providing that a check must be presented within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay, is the codification of the common law, but does not state that the payee will be liable to the drawer if he does not present the check within a reasonable time -- even if it be assumed that respondent here did not present the check within a reasonable time.
Appellants, husband and wife, brought this suit as plaintiffs to recover from respondent, as defendant, the sum of $ 87.60 as damages for the alleged negligence of defendant, while he was Collector of the Revenue of Cape Girardeau County, Missouri, in failing to present for payment in due time a check delivered to him by plaintiffs in payment of their state and county taxes on personal property and on certain real estate owned by plaintiffs in the City of Cape Girardeau. The suit was originally instituted in the Circuit Court of Cape Girardeau County but was taken on a change of venue to the Cape Girardeau Court of Common Pleas.
At the trial, at the close of plaintiffs' evidence, the court directed a verdict in favor of defendant "for the sole reason that the testimony was that there is a possibility of paying this claim in full by the liquidator on or before the final liquidation of the bank." After an unavailing motion for a new trial, plaintiffs duly appealed.
We think it proper to point out that, although the case involves transactions alleged to have occurred in November, 1932, suit was not filed until October 28, 1937, and the cause was not brought to trial until September 26, 1941, both parties having by agreement continued it from term to term until it finally was tried. The appeal herein was allowed on December 12, 1941, and the bill of exceptions was filed in February, 1942.
There being no question as to the pleadings, it is sufficient to say that the petition of plaintiffs set forth facts which they charged constituted defendant's negligence. Defendant answered with a general denial. The parties filed an agreed statement of facts and presented additional evidence.
From the agreed statement of facts and the evidence, it appears that, about 2 P. M. on Friday, November 4, 1932, plaintiffs delivered their check in the sum of $ 87.60 to defendant as County Collector of Cape Girardeau County in payment for real estate and personal taxes due from them on property then owned by them in Cape Girardeau City. The check was drawn on the Sturdivant Bank, which was located in the City of Cape Girardeau where the check was delivered to defendant. The Sturdivant Bank was doing a regular banking business in the City of Cape Girardeau on Friday, November 4, 1932, from 9 A. M. to 3 P. M. It was also open for business on Saturday, November 5, 1932, from 9 A. M. to 3 P. M., but, after closing its doors for business at 3 P. M. on that day, it never thereafter reopened for business for the reason that sometime during Sunday November 6, 1932, or in the early morning of Monday following, it was taken over by the State Finance Department for liquidation and is still in process of liquidation.
It further appears that, after the closing of the Sturdivant Bank, defendant, as collector, charged back on the tax records the taxes for which he had on November 4, 1932, given a receipt to plaintiffs; that the records showed that until October 25, 1937, said taxes, both personal and real, were delinquent; that on October 24, 1937, after the then collector of the revenue, W. F. Bergmann, had advertised for sale the tax liens on the real estate, plaintiffs entered into a compromise settlement of the taxes with the county court for the sum of $ 87.60, which sum plaintiffs paid on October 24, 1937, to the county collector in full settlement of the claim against them for back taxes.
Defendant was the duly elected collector of the county and served, after his election in 1930, a four-year term in said office expiring March 1, 1935. The real estate taxes and the personal property taxes were due and payable in the fall of 1932.
Plaintiffs introduced in evidence the receipt signed by defendant as collector showing personal property and real estate taxes aggregating $ 87.60 as having been paid by plaintiffs on November 4, 1932. They also introduced in evidence the check used in payment of the taxes. The check was dated November 4 1932, drawn on the Sturdivant Bank, payable to the order of ...
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