Young v. Mercantile Trust Co. Nat. Ass'n

• Court: Missouri Court of Appeals
• Writing for the Court: McMILLIAN
• Citation: Young v. Mercantile Trust Co. Nat. Ass'n, 552 S.W.2d 247 (Mo. App. 1977)
• Decision Date: 26 April 1977
• Docket Number: Nos. 37992,37993,s. 37992
• Parties: Florence S. YOUNG, Plaintiff-Appellant-Respondent, v. MERCANTILE TRUST COMPANY NATIONAL ASSOCIATION, Defendant-Appellant-Respondent. . Louis District, Division Two

Page 247

552 S.W.2d 247

Florence S. YOUNG, Plaintiff-Appellant-Respondent, v. MERCANTILE TRUST COMPANY NATIONAL ASSOCIATION Defendant-Appellant-Respondent.

Nos. 37992, 37993.

Missouri Court of Appeals, St. Louis District, Division Two.

April 26, 1977.

Motion for Rehearing or Transfer Denied June 9, 1977.

Wion, Burke & Boll, Edward P. Burke, Clayton, for plaintiff-appellant-respondent.

W. David Wells, St. Louis, for defendant-appellant-respondent.

McMILLIAN, Presiding Judge.

This is an appeal whereby plaintiff, in a conversion action, sought actual and punitive damages against defendant bank for its appropriation of $10.00 which plaintiff had on deposit with the bank. The trial court directed a verdict for defendant on the issue of punitive damages. A jury awarded $1500.00 to plaintiff as actual damages. Defendant contends that the $1500.00 award was unsupported by probative evidence and that damages as a matter of law are limited to the $10.00 appropriated. Plaintiff alleges trial court error in refusing to submit the issue of punitive damages to the jury. We find plaintiff's proven actual damages to be only $10.00 and, therefore, order the entry of a judgment for plaintiff for that amount plus interest. In addition we find that the trial court erred in directing a verdict for defendant on the issue of punitive damages and accordingly remand for a new trial on the issue of punitive damages only.

The facts are relatively simple. On January 21, 1971, plaintiff withdrew $193.00 from her savings account, leaving a balance of $10.00. Plaintiff also cashed two U.S. Savings Bonds, a $25.00 bond worth $18.75 and a $50.00 bond worth $38.10. Plaintiff testified that she immediately counted the money received for the savings bonds and it totaled $56.85. She took this money, the $193.00 withdrawn from her savings account plus some other money, and opened a checking account for $260.00. Plaintiff then wrote a check for $250.00 leaving a balance, after assessment of the service charge, of $9.90. At the end of the day, the teller who handled plaintiff's transactions discovered that she was $18.75 short. In rechecking, the teller noticed that a $37.50 cash value was stamped on the face of plaintiff's $25.00 bond. Feeling that this was the source of the shortage, the teller called plaintiff and asked her to remit the $18.75 overpayment. Plaintiff denied that there had been an overpayment and asked if there was some other bank employee with whom she could discuss the matter. The teller told plaintiff that she could call the auditing department. Plaintiff did not do so at this time.

On January 28, 1971, the bank sent plaintiff a letter informing her that because she had refused to repay the $18.75, the bank was charging her savings account $10.00, thereby closing it. The letter also demanded repayment of the $8.75 allegedly still owing. Finally, plaintiff was requested to make other arrangements for her checking account and was informed that a check for the balance in the checking account would be mailed to her. This time plaintiff attempted to call the bank president but was referred to the bank's auditing department. Plaintiff was unable to obtain any satisfaction.

On February 9, 1971, plaintiff received a second letter from the bank in which was enclosed a cashier's check for $9.90, the balance of the checking account. Once again, plaintiff was informed that she owed the bank $8.75.

Plaintiff's petition alleged that the bank had acted maliciously and intentionally and had thereby ". . . caused plaintiff's reputation to suffer substantially in the economic community; to-wit, she can no longer obtain credit, and she is embarrassed by refusals of credit by merchants." Punitive damages in the amount of $100,000 and $10,000 in actual damages were sought. Plaintiff's case at trial consisted solely of her own testimony recounting the events and that she was very upset and angry with the bank. The only testimony supportive of her claims of economic embarrassment was the following exchange:

"A. . . . I felt after I applied for credit some place, I felt because of that transaction, it damaged my character as a person.

"Q. Did you know that happened, or is that something you are

"A. I don't know if it's a fact, but I feel it was."

The bank's case at trial consisted solely of the teller's recounting of the events. The teller knew nothing about the transactions between plaintiff and the bank subsequent to the teller's January 21 telephone call to plaintiff. No evidence was introduced by defendant to establish any legal authority for the bank's actions. Plaintiff's exhibit I, the January 28 letter, did recite, without any detail, that the bank was ". . . (a)cting upon the instructions of our auditing department and on the advice of our attorney. . . ."

The overall issue of this case is the proper measure of recoverable damages. The jury found that the bank's appropriation of the $10.00 was a conversion, that is, "an unauthorized assumption and exercise of the right of ownership over the personal property of another to the exclusion of the owner's right. . . ." Wirth v. Heavey, 508 S.W.2d 263, 267 (Mo.App.1974). "General damages" recoverable for a conversion are the value of the property converted $10.00 plus interest, see cases collected at Mo. Digest, Trover and Conversion, k44. In addition to this amount, plaintiff might recover "special damages" for the "natural, but not necessary, result of the wrongful act. . . ." Condos v. Associated Transports, Inc., 453 S.W.2d 682, 688 (Mo.App.1970); 89 C.J.S. Trover and Conversion § 170. Usually, special damages must be specifically pled, § 509.200, V.A.M.S. In the present case, the only special damages specifically alleged in plaintiff's petition were detriment to her reputation in the economic community. The only testimony relevant to this claimed injury was plaintiff's statement that she "felt (that) because of that transaction, it damages my character as a person." No evidence of refusals of credit or specific actions of the bank that might harm plaintiff's credit rating was introduced. Any award of damages for the claimed injury to economic reputation in this context was totally unwarranted because plaintiff simply failed to shoulder the burden of proof to demonstrate injury, Homeyer v. Wyandotte Chemical Corp., 421 S.W.2d 306, 310 (Mo.1967).

Although plaintiff pled no other special damages, plaintiff might still recover for other special damages if proven at trial without objection by the defendant, Mellor v. Missouri Pac. Ry. Co., 102 Mo. 270, 14 S.W. 758, 760 (Mo.1890) aff'd. 105 Mo. 455, 16 S.W. 849 (Mo.1891); 22 Am.Jur.2d, Damages, § 273; cf. Condos v. Associated Transports, Inc., supra at 690 (purpose of the special damages pleading rule is...