author: HENLEY, Judge. FINCH, Judge.

text:
    Nancy Elizabeth PRENTZLER, by her next friend, Rollie Frazee, Respondent, v. Erma Sue SCHNEIDER, Administratrix of Estate of Jacob K. Schneider, Deceased, Appellant.
    No. 52075.
    Supreme Court of Missouri, En Banc.
    Dec. 30, 1966.
    Rehearing Denied Feb. 13, 1967.

      W. F. Daniels, Fayette, for respondent.
    Terence C. Porter, Columbia, Welliver, Porter & Cleaveland, Columbia, of counsel, for appellant.
   HENLEY, Judge.

This is an action for damages for wrongful death of plaintiff’s husband as a result of a collision .of two motor vehicles. Judgment was for plaintiff for $15,000 and defendant appealed to the Kansas City Court of Appeals. That court reversed and remanded for error in permitting plaintiff to testify to facts of the collision, because she was incompetent as a witness by reason of § 491.010, RSMo 1959, V.A.M.S. (commonly referred to as the Dead Man’s Statute), the other party to the action being dead. On application of both plaintiff-respondent and defendant-appellant, we ordered the case transferred to this court. It is to be determined here “ * * * the same as on original appeal.” Article V, § 10, Constitution of Missouri, V.A.M.S.; Civil Rule 84.05 (h), V.A.M.R. We affirm.

The collision occurred July 2, 1962, on Missouri Highway No. 5 between Fayette and Glasgow in Howard county. Kenneth Prentzler was driving his Chevrolet pickup truck east with his wife, this plaintiff, as a passenger when it collided violently with an International dump truck being driven west by Jacob Schneider. Both drivers were killed instantly. Mrs. Prentzler is the only surviving witness to the collision.

The widow of each driver filed a wrongful death action in Chariton county: (1) Erma Sue Schneider vs. Paul Allen Prentz-ler, Administrator of the estate of Kenneth Lee Prentzler, deceased; (2) Nancy Elizabeth Prentzler, by her next friend vs. Erma Sue Schneider, Administratrix of the estate of Jacob K. Schneider, deceased. A change of venue was taken in each case; the first mentioned case was sent to Saline county; the second to Randolph county. The first case tried, Schneider vs. Prentz-ler, Administrator, resulted in a judgment for Mrs. Schneider for $25,000. Defendant, Prentzler, as administrator, appealed and the judgment was affirmed by this court. See Schneider v. Prentzler, Mo., 391 S.W.2d 307.

The compulsory counterclaim rule, Civil Rule 55.45 (a), V.A.M.R., was not applicable to this plaintiff when the two cases were filed in Chariton county, because she was not a party defendant and was not required to and could not plead in the other action. Hayden v. Yelton, Mo.App., 237 S.W.2d 249, 251-52 [2,3]; State ex rel. Buchanan v. Jensen, Mo., 379 S.W.2d 529.

Five days before the trial of this case defendant, Schneider, filed a motion for summary judgment to which was attached in support thereof the transcript of all proceedings and evidence in the Saline county case. Grounds of the motion were that this action is barred by reason of the verdict and judgment in the Saline county case, Schneider v. Prentzler, Administrator. The motion was overruled on trial day.

One of the points relied on by defendant is that the court erred in overruling her motion for summary judgment. Defendant contends that the doctrine of estoppel by verdict and judgment is applicable; that plaintiff, Prentzler, is estopped from maintaining this action by the verdict and judgment in the first case tried.

The petition in each case pleaded negligence on the part of each defendant’s deceased driver in driving on the wrong side of the road. The answer in each case pleaded contributory negligence of each plaintiff’s deceased husband in driving on the wrong side of the road. The first case tried, Schneider v. Prentzler, Administrator, was submitted on negligence of that defendant’s decedent in driving on the wrong side of the road and contributory negligence of that plaintiff’s decedent in driving on the wrong side of the road. The instant case, the second case tried, was submitted on the same charges of negligence and contributory negligence. As indicated, in the first case, the Saline county jury found that that defendant’s decedent (Prentzler) negligently drove on the wrong side of the road and that that plaintiff’s decedent (Schneider) was driving on his right side of the road and was not contributorily negligent. In the instant case the Randolph county jury found, contrary to the finding of the Saline county jury, that this defendant’s decedent (Schneider) negligently drove on the wrong side of the road and that this plaintiff’s decedent (Prentzler) was driving on his right side of the road and was not contributorily negligent. Thus, the results in the two separately tried cases are diametrically opposed on the basic fact issue, an anomalous circumstance and predicament this defendant anticipated and sought to avoid by her motion for summary judgment.

What defendant refers to as the doctrine of estoppel by verdict and judgment is aptly stated in Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118, 1. c. 122-123: “Generally, in order to have estoppel by a former judgment (res adjudi-cata), there must be: (1) Identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality of the person for or against whom the claim is made. Rossi v. Davis et al., 345 Mo. 362, 133 S.W.2d 363, loc. cit. 373, 125 A.L.R. 1111, and cases there cited. The rule stated is, however, general and not exclusive. Res ad judicata may be as to a judgment or as to some particular facts litigated between the parties. In re McMenamy’s Guardianship, 307 Mo. 98, loc. cit. 110, 270 S.W. 662, loc. cit. 665; Boillot v. Income Guaranty Co., Mo.App., 124 S.W.2d 608, loc. cit. 611. * * * ‘A fact or question which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, is conclusively settled by the judgment therein, so far as concerns the parties to that action and persons in privity with them, and cannot be again litigated in any future action between such parties or privies, in the same court or in any other court of concurrent jurisdiction, upon either the same or a different cause of action. This doctrine, that a fact or question which has been actually and directly in issue in a former suit and has been judicially passed upon and determined by a domestic court of competent jurisdiction cannot be litigated again in a subsequent suit between the same parties or their privies, is simple and universally recognized in almost innumerable cases, the only difficulty or conflict being in its application to particular cases’.” (Emphasis theirs.)

Obviously, the fact issue determined in the first case tried was the same as that in this case. But, does that determination estop plaintiff from maintaining this action? We conclude that it does not. She was not a party to that action, nor was she in privity with the defendant in that action.

As stated, the defendant in the first action tried was Paul Prentzler, administrator of the estate of plaintiff’s deceased husband, Kenneth Lee Prentzler. He, as administrator, was the only proper party defendant in that action. Clarke v. Organ, Mo., 329 S.W.2d 670, 674 [4]; § 537.020, RSMo 1959, V.A.M.S. This plaintiff, as the widow of Kenneth Prentzler, would not have been a proper party defendant, and could not have had any right of control over the defense of that action. The defendant in the first action could not have asserted as a counterclaim the claim for wrongful death of Kenneth Prentzler, this plaintiff being alive. Day v. Brandon, Mo., 394 S.W.2d 405; § 537.080, RSMo 1959, V.A.M.S.

The claim asserted by plaintiff for the wrongful death of her husband is an entirely new claim created by statute; it is not the result of a revival of a claim belonging to the deceased in his lifetime; it did not exist before her husband’s death. Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920; Glasgow v. City of St. Joseph, 353 Mo. 740, 184 S.W.2d 412, 415 [5]. In Plaza Express Company v. Galloway, et al., 365 Mo. 166, 280 S.W.2d 17, 23 [6, 7], this court held that the widow and administrator are different persons and are not in privity with each other, and that determination of a fact issue in an action by one is not res judicata in another action growing out of the same accident.

For the reasons stated, we hold that plaintiff is not estopped from maintaining this action by the judgment in the first action ; the court did not err in overruling defendant’s motion for summary judgment.

An allied point relied on by defendant is that the court erred in striking from her answer the defense that the judgment in the first case tried is res judicata of the issues in this action. What we have said above disposes of this point adversely to defendant.

Another point relied upon by defendant is that plaintiff failed to make a submissible case and that plaintiff’s decedent was guilty of contributory negligence as a matter of law; that, therefore, the court erred in overruling her motions for directed verdict. We review the evidence in a light most favorable to plaintiff, giving her the benefit of all favorable inferences arising therefrom, and disregard defendant’s evidence except insofar as it may assist plaintiff. Goddard v. St. Joseph Light and Power Co., Mo., 379 S.W.2d 565.

We use essential portions of a statement of the evidence by the Court of Appeals. Plaintiff testified that her husband was driving the Chevrolet pickup truck in an easterly direction at a speed of 40 to 45 mph. She was riding in the right front seat. She first saw defendant’s dump truck as it came over a rise in the highway from the east, traveling in a westerly direction. The dump truck was in the middle of the road. She stated that its driver tried to get back, that his front wheels were turned, but that he could not and did not get back to his right side of the road before the collision. The pickup was in its proper lane near the south edge of the pavement. She did not know its exact distance from the edge of the pavement, but it may have been one or two feet. She did not remember the impact itself, or anything thereafter, until she awakened in the hospital some days later. She stated that the collision occurred “all of a sudden”, or “real fast", and that she did not know exactly how much time elapsed from the time she first sighted the dump truck until the impact, but that it might be one, two, three or four seconds. She did not know whether her husband turned the front wheels of the pickup or applied his brakes.

After the collision the pickup truck came to rest slanting across the eastbound or south lane of the highway facing northwest. The right front wheel of the pickup was on, or slightly north of, the center line of the highway and the rear end was on the south edge of the pavement, or perhaps partly on the shoulder. The Schneider dump truck came to rest 202 feet west of the pickup, off the road on the north side, with its front wheels at the north edge of the pavement and its rear end in the ditch, facing almost due south. A breather cap from the pickup was found across the ditch and on top of the embankment on the south side of the road, approximately 15 feet from the south edge of the pavement. The left hand door of the pickup had been torn off and was found just off the pavement on the south shoulder of the road 100 feet west of where the pickup came to rest. The right front wheel of the dump truck was found on the road 50 feet east of where the dump truck came to rest.

There was debris, consisting of water, oil, broken metal parts, broken glass, shakedown, shells which had been carried in the pickup, etc., “literally all over the road.” Debris was on the south shoulder on the south half of the road, under the pickup truck, on the north lane of the road, and on the north shoulder. The heaviest concentration of debris was in the westbound or north lane, and the center of this heaviest concentration appeared to be about four feet north of the center line. The sheriff of Howard county and another witness, a Mrs. Brown (near whose home the collision occurred), testified that the heaviest concentration of debris was in front of where the pickup came to rest. The investigating highway patrolman placed the heaviest concentration of debris at a point 12 feet west of the front of the pickup. There was a gouged place in the highway in the south lane near the pickup about two feet from the south edge of the pavement. There was also a gouged place in the highway in the north lane about in the center of the heaviest concentration of debris. A skid mark 12 feet long ran from the right front wheel of the pickup westerly in a curve to a point 6 to 12 inches north of the center line. Another skid mark near the south edge of the pavement extended in an arc from the left rear wheel of the pickup 10 feet to the west. The dump truck had dual rear wheels. Marks made by dual tires in the south lane started at a point east of the point where the pickup came to rest and ran west, curving across the center line into the north lane. For a vehicle traveling west these dual tire marks curved to the right and led up to the heaviest concentration of debris. There were marks on the north shoulder and bank of the highway showing where the dump truck hit the bank 45 feet west of the point where the pickup came to rest. Other marks indicated where the dump truck rolled over twice on its right side before it came to rest.

At the point where the pickup came to rest the road is slightly banked and slants or drains to the north. Water and oil was running out of the front of the pickup across the north lane.

The pickup was damaged on its left front corner and on all its left side. The driver’s side of the front seat was completely demolished. The left front headlight was gone, and the left front wheel broken. Although the hood was bent and damaged the grill between the headlights did not show evidence of impact. The dump truck was not damaged in the front. Both of its headlights were intact and unbroken. The left front fender was damaged on the side. The left front door, left front overhang of the dump body, and the left side of the saddle-type gasoline tank showed considerable damage from the impact.

In approaching the point of collision from the west, traveling east, the pickup was on a relatively straight road. In approaching the point of collision from the east, the dump truck traveled west around a slight curve (beyond which a driver could not see) and over a rise in the road.

All of the witnesses repeatedly illustrated their testimony by marking on photographs and rough diagrams of the scene, which no doubt presented to the jury a picture clearer and more accurately descriptive than can be expressed by words.

Although the area of greatest concentration of shakedown and debris was in the north lane of the highway, this fact alone does not make implicit a finding that the point of impact was in the north lane. Determination of the point of impact is peculiarly within the province of the jury. See Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242 and Chester v. Shockley, Mo., 304 S.W.2d 831.

A jury reasonably could find from this evidence that the dump truck, approaching the scene of the collision from the east, traveled over the center line onto the south half or eastbound lane of the highway as it negotiated the rise and blind banked curve; that although its driver may have tried, he failed to get the whole of his truck back across the center line onto the north half of the road before the collision ; that the pickup truck was on its right side of the road south of the center line headed east when the two vehicles collided violently south of the center line. Specifically, the testimony of the plaintiff and the physical facts, such as the contour of the roadway, the dual wheel marks found south of the center line beginning east of and continuing through parts of the debris or shakedown, the relative size and weight of the two vehicles as shown by photographs (the dump truck being the larger and heavier), and the positions in which the vehicles came to rest, would support a finding by the jury that defendant’s decedent negligently operated the dump truck on its wrong side of the road into collision with the pickup truck and that plaintiff’s decedent was not negligent.

Considering this evidence we may not say plaintiff’s decedent was guilty of contributory negligence as a matter of law. We hold that plaintiff made a submissible case and that the court did not err in overruling defendant’s motions for directed verdict. Our ruling on this point also rules defendant’s contention that the court erred in giving instruction P-1, offered by plaintiff, because the instruction was not supported by substantial evidence.

The last point relied on we need consider is defendant’s contention that the court erred in permitting plaintiff to testify to facts concerning the collision, because she was incompetent as a witness under the Dead Man’s Statute. Plaintiff asserts that she was not incompetent as a witness, but, if incompetent, defendant waived objection to her competency by introducing in evidence in this case all of her testimony given in the trial of the case in Saline county. Defendant does not answer this assertion, except to say in oral argument here that the exact question has not been decided by an appellate court of this state and that plaintiff’s Saline county testimony was offered by her solely in support of her motion for summary judgment and was considered by the court only, not by the jury.

Plaintiff’s testimony in the trial of the case in Saline county was substantially the same as her testimony at this trial.

We need not decide whether § 491.010 made plaintiff incompetent as a witness. Assuming for the purposes of this opinion, without deciding, that plaintiff was incompetent, did the defendant waive plaintiff’s incompetency by introducing her Saline county testimony in this case and thereby render her objection impotent?

It is well settled that a party protected by the statute may by his affirmative act waive the incompetency of the other party as a witness. Lampe v. Franklin American Trust Co., 339 Mo. 361, 96 S.W.2d 710, 713-716 [1, 2], 107 A.L.R. 465 is analogous to the instant case on the essential facts relating to waiver. The Lampe case was a proceeding to establish a note as a demand against the estate of Birkenback, opposed by defendant Trust Company as executor. After the claim was allowed by the Probate Court it was appealed and tried at least twice in the circuit courts, the first time in Greene county and the last time in Polk county. In the Greene county trial defendant introduced in evidence a transcript of the cross-examination of plaintiff, Lampe, as a witness for his brother in Probate Court on a claim of the brother against the Birkenback estate. The cross-examination went into facts pertaining to plaintiff’s claim against the estate. Judgment for the defendant estate in the circuit court of Greene county was set aside, a new trial granted plaintiff, Lampe, and the case went to Polk county on change of venue. The transcript of plaintiff’s cross-examination as a witness in his brother’s claim in Probate Court was not offered in evidence in the Polk county trial. At the trial in Polk county plaintiff was permitted to testify to facts relating to transactions with the deceased in connection with the note, all over defendant’s objection that plaintiff was incompetent as a witness. Plaintiff contended that defendant had waived his incompetency by cross-examining him regarding his claim when he was a witness for his brother in Probate Court. The court expressed no opinion as to whether plaintiff’s incompetency was waived merely by his cross-examination in his brother’s case, because, the court said, defendant used plaintiff’s cross-examination against him by offering it in evidence in the Greene county trial and thereby waived his incompetency. The court held “ * * * that, by offering plaintiffs former testimony (about the transaction here at issue) as evidence in this case, at the first trial thereof, defendants have waived his competency herein as a witness as to the * * * transaction between himself and Birkenback concerning the note upon which he bases his claim.” (Emphases for “at the first trial thereof” and “herein” ours.)

We hold that by the introduction in this case of plaintiff’s testimony in the first case tried, pertaining to the facts of the collision, defendant waived plaintiff’s incompetency as a witness. It is of no consequence that this testimony was offered solely in support of her motion for summary judgment and was not considered by the jury. The use of the transcript of plaintiff’s testimony against her on the motion for summary judgment amounts to the same as calling her as defendant’s witness on the motion. By so requiring her to testify for that purpose defendant made her competent as a general witness in the case.

During oral argument in this court defendant specifically abandoned her point relating to misconduct of a juror.

The judgment is affirmed.

All concur except FINCH, J., who concurs in part and dissents in part in separate opinion filed.

CONCURRING AND DISSENTING OPINION

FINCH, Judge.

I respectfully dissent from that portion of the majority opinion which holds that defendant waived objection to incompetency of plaintiff under § 491.010, RSMo 1959, V.A.M.S. I concur in; the other portions of the majority opinion.

Making the same assumption as the majority opinion that § 491.010 made plaintiff incompetent as a witness, I find nothing to constitute a waiver of that incompetency.

Defendant did not take plaintiff’s deposition or submit interrogatories to her. Neither did she at the actual trial of this case seek to offer all or any part of a transcript of testimony which plaintiff had given in the Saline County case (Schneider v. Prentzler, Mo., 391 S.W.2d 307). The only thing which defendant did was to move for summary judgment under Civil Rule 74.04, V.A.M.R. This motion was on the theory that the suit was barred under the doctrine of estoppel by judgment by reason of the verdict and judgment in the previously tried Saline County case. The entire transcript of all proceedings and evidence in the Saline County case was attached to the motion for summary judgment. That transcript included testimony given by plaintiff in that case. This, in my judgment, was not equivalent to utilizing discovery procedures and waiving the incompetency in that manner, nor was it the same as introducing in the actual trial all or part of a transcript of testimony given by the incompetent witness in a previous trial or hearing. The latter is what occurred in Lampe v. Franklin American Trust Co., 339 Mo. 361, 96 S.W.2d 710, which is cited by the majority opinion as an analogous case.

Defendant merely sought to utilize her right to ask disposition of this case on motion under Rule 74.04. In effect, she said that the trial court should look at the prior Saline County case and it would see that the doctrine of estoppel by judgment was applicable. The court, of course, had to look at the transcript in that case to determine whether to apply the doctrine of estoppel by judgment but the transcript was not used in the actual trial.

The effect of the majority opinion is to say to a party under circumstances such as that which confronted defendant that the summary judgment procedure is utilized at his peril. If a witness who testified in the previous case would be incompetent in the case at bar, and movant is not successful in urging the motion for summary judgment, then the incompetency of the witness has been waived in the process. Such a result is reminiscent of a rule which at one time prevailed in some courts that where both parties moved for a directed verdict, they thereby waived trial by jury. In my judgment, a party should not be confronted with such a Hobson’s choice in a decision whether to utilize summary judgment procedure.


source: Caselaw Access Project

author: HOLMAN, Presiding Judge. SEILER, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Clifford HART, Appellant.
    No. 51516.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Mo., Norman Humphrey, Jr., Sp. Asst. Atty. Gen., Independence, Mo., for respondent.
    Robert B. Baker, Ellington, Mo., for appellant.
   HOLMAN, Presiding Judge.

Defendant was charged with breaking and escaping from the Reynolds County jail while being lawfully imprisoned upon a felony charge, i. e., subornation of perjury before conviction thereon. See § 557.390 (all statutory references are to RSMo 1959, V.A.M.S.). A trial resulted in a verdict of guilty and defendant’s punishment was fixed by the jury at imprisonment in the county jail for six months. He has appealed from the judgment.

The evidence offered was not extensive and hence a brief statement of facts will suffice. Timón Johnson, Sheriff of Reynolds County, testified that he arrested defendant at about 3 p. m. on June 13, 1963, and locked him in the county jail about 4 p. m.; that about 5 p. m. on June 15 he fed the defendant who was the only prisoner in the jail at that time; that when he returned to the jail the next morning he discovered that a door leading into a storage room was open and found a pile of brick where a hole had been chiseled out of the outside wall; that defendant was not in the jail at that time.

It was shown by the testimony of the clerk of the magistrate court, and a transcript of the proceedings, that defendant, on June 12, 1963, had been charged with subornation of perjury; that a warrant was issued to the sheriff and the defendant was brought before the magistrate court on June 14, 1963; that the bond of defendant was fixed at $200 and his preliminary hearing set for June 21, 1963; that defendant did not furnish bond and a commitment was issued directing the sheriff to commit defendant to the county jail until a bond was given or until the date of the preliminary hearing. There was testimony that defendant did not obtain his release upon bond prior to the time he disappeared from the county jail.

Defendant did not testify. The only witness offered by defendant was D. D. Walton who testified that defendant had lived on some property he owned in Shannon County and had worked for him; that on the day defendant was arrested he went to the county seat and talked with the sheriff; that he told the sheriff he would be willing to sign a small bond for the release of defendant; that the sheriff said the bond would be $1,500 and that “I should be careful who I signed a bond for”; that “when I said I couldn’t raise the $1,500 he just dropped the matter.” He further stated that he owned real estate worth $12,500, but it was shown on cross-examination that his wife had an interest in the real estate and that she was not with him at the time but was in St. Louis.

The information charged that defendant was imprisoned in the jail upon a charge of “Subornation of Perjury, being Case Number 1598 of the Magistrate Court of Reynolds County, Missouri * * Thereafter, in the information, in alleging that he had not yet been convicted, it is said that the charge was under § 557.080. The last mentioned section defines the offense of attempting to corrupt witnesses. Defendant says that the court erred in overruling his motion to dismiss the information because there was no way of ascertaining which charge defendant was being imprisoned on and therefore the information failed to charge a crime. We have concluded that the information sufficiently charged the offense. It correctly stated that defendant had been charged with “subornation of perjury.” It also stated that the charge was in Case Number 1598 of the Magistrate Court of Reynolds County, and a reference to the complaint in Case Number 1598 would have disclosed that the charge was subornation of perjury. The inadvertent inclusion thereafter of a reference to a statute which defined a different but similar offense may be disregarded as surplusage. We rule this point against defendant.

The second point briefed is that the court erred in overruling defendant’s motion to dismiss which was based upon the fact that an attorney was not appointed for him prior to the time he waived his preliminary hearing. There is no merit in that contention. Defendant admittedly waived the preliminary hearing. As we understand his present contention, it is that he should not have been bound by that waiver because he had not been advised by counsel, nor advised of his right to counsel, prior to the waiver. In that connection we have consistently held that “the mere lack of counsel at a preliminary hearing held under the Missouri practice is not a deprivation of due process or of any other constitutionally protected right.”

State v. McClain, Mo.Sup., 404 S.W.2d 186, 189. There is nothing in the circumstances of the case at bar that would preclude the application of the quoted rule. As indicated, the point is disallowed.

It appears from statements made by defendant’s attorney during the voir dire examination of the jury panel that on the day prior to the trial the court revoked defendant’s bond, giving as the reason therefor that defendant was unreliable and that the bond was revoked in order to be sure defendant would appear for the trial. It was brought out on voir dire that several members of the panel were present in the courtroom and heard what was said at that time. Thereafter, the court asked the members of the panel if anything they had heard concerning the foregoing would prejudice them against defendant, and if they could disregard the occurrence and give the defendant a fair and impartial trial. The jurors indicated that they were not prejudiced and that they would- give defendant a fair trial. Defendant moved to discharge the entire panel because of the occurrence, and the motion was overruled. Defendant here contends that said ruling constituted prejudicial error. In deciding this point we are mindful of the rule that the trial court has considerable discretion in ruling on challenges of veniremen that are not disqualified as a matter of law. State v. Spica, Mo.Sup., 389 S.W.2d 35. In this instance the jurors indicated that they were not prejudiced by the incident and would give the defendant a fair trial. We see nothing in the circumstances which would cause us to conclude that the court abused its discretion in overruling the motion. The contention is overruled.

During the selection of the jury the sheriff, at the direction of the court, selected four special jurors from the bystanders to fill vacancies on the panel. After the voir dire examination had been completed the defendant challenged those four jurors because they had been selected by the sheriff who was to be an important witness in the case. The court overruled the challenge because the objection was not made at the time the sheriff was directed to obtain the jurors. Defendant here contends that the ruling was erroneous. In a similar situation this court stated that “if the defendant desired to object to the sheriff summoning the jurors, a timely motion should have been made before the venire had been summoned, and he should not have waited until the jurors were in court.” State v. Jeffries, 210 Mo. 302, 109 S.W. 614, 621. In this case the defendant not only waited until the jurors were in court, but did not object until the voir dire examination had been completed. The trial court ruled correctly in denying the challenge.

In the cross-examination of the circuit clerk defendant’s attorney asked if the subornation case had been dismissed and the clerk answered that she did not know. At the conclusion of the State’s evidence the following occurred:

“The Court: Mr. Baker, earlier in this case, you inquired of the Clerk of the Circuit Court if a dismissal had been entered in the cause pending against the instant defendant. Do you wish to pursue that matter further at this time?
“Mr. Baker: Your honor, I object to the Court’s comments and move the jury be discharged and a mistrial be declared on account of the Court interjecting the comments in the case and interference.
“The Court: I was merely calling your attention to the fact that you had not given evidence on the matter you had inquired about. If you wish that witness back on the stand to further pursue that matter, you certainly have a right to do so.
“Mr. Baker: We do not wish to further cross-examine the witness.”

It is defendant’s contention that the comment of the court was prejudicial and that such a comment “tends to make the court seem more the advocate or the prosecutor than the unbiased judge he must be if a defendant is to have a fair trial.” We are unable to understand why defendant objected to the court’s remark. When the clerk was on the stand she said she had been unable to find certain records concerning the prior case. No doubt the court thought that she may have subsequently found the records and could give the information previously sought. In any event, we see nothing in the court’s inquiry which would prejudice the defendant in any manner. The contention is ruled adversely to defendant.

Defendant also contends that the court erred in overruling his motion for a bill of particulars. In our examination of the transcript we fail to find the motion for a bill of particulars therein and we therefore cannot consider that point. We have, however, examined the information and find it to be sufficient. It appears to allege all of the essential facts.

The Court refused to give Instruction “C” offered by defendant. It reads as follows:

“You are instructed that it is the duty of the officer arresting under a warrant or otherwise to bring the prisoner, without unnecessary delay, before the judge or magistrate who issued the warrant, if practicable, if not, before some judge or magistrate as soon as practicable, and that any unreasonable delay in bringing a person so arrested before a magistrate results in unlawful imprisonment of the prisoner.”

In contending that the refusal was error defendant apparently takes the position that a failure to promptly take defendant before the magistrate would warrant his acquittal of the charge. That contention is without merit. Defendant was placed in jail at 4 p. m. on June 13, 1963. He was taken before the magistrate the next morning when bail was fixed which he was unable to give. See S.Ct. Rules 21.11 and 21.12, V.A.M.R. He escaped from jail about 36 hours later. The fact that the sheriff did not take defendant before the magistrate at 4 o’clock on the afternoon of June 13 did not cause his imprisonment at the time of his ^escape to be unlawful and would not constitute a defense in this case. The court did not err in refusing Instruction

The defense in this case was that defendant’s imprisonment was unlawful and therefore he was justified in escaping jail. More specifically, he states in his brief that his defense was “that he was able to make bail, that he had a bondsman ready to qualify and sign his bonds, and that the sheriff wrongfully deceived the intended bondsman, not only in the matter of the amount of the bond but in other matters, and attempted to persuade the proposed bondsman not to sign defendant’s bond.” As his final point he contends that the court should have given an instruction as a part of the law of the case submitting his theory of defense as herein described. We do not think the fact that the sheriff was inaccurate in estimating the amount at which the magistrate would fix defendant’s bail, or that he may have discouraged a prospective bondsman, would constitute a defense in this case. While there are authorities indicating that one charged with escape may defend by showing that he was not lawfully imprisoned, we are inclined to approve the statement that “where the imprisonment is under color of law, the prisoner is not entitled to resort to self-help but must apply for his release through regular legal channels, even though he might be able to show such defects in the procedure by which he was arrested, tried, sentenced, committed, or imprisoned as to justify or require his release on appeal or habeas corpus.” 70 A.L.R.2d 1437. However, in the case before us, the point is disposed of by our ruling to the effect that the evidence shows that defendant’s imprisonment was actually lawful in every respect. We accordingly rule this point against defendant.

An examination of the record as required by S.Ct. Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

HENLEY, J., concurs.

SEILER, J., dissents in separate dissenting opinion filed.

Dissenting Opinion

SEILER, Judge.

I respectfully dissent, because I believe the remarks made by the trial court the day before the trial started, upon revoking defendant’s bond, overheard by several jurors, giving as the reason therefor that defendant was unreliable and the bond was revoked in order to be sure defendant would appear for the trial, constituted reversible error. “ * * * [T]he court must always maintain an absolute impartiality in any trial, both in its remarks and in its conduct generally * * State v. Sanders (Mo.Sup.) 360 S.W.2d 722, 726. “A judge must not say anything that can be construed by the jury to the prejudice of a defendant. * * * ” State v. Castino (Mo.Sup.) 264 S.W.2d 372, 375. “ * * * [A] trial judge should avoid any indication of feeling against the prisoner * * * ”, State v. Jones (Mo.Sup.) 197 S.W. 156, 158.

I do not believe the error was cured by the statement of the jurors that they were not prejudiced by the remarks and that they would give the defendant a fair trial. As said in State v. Wright, 161 Mo.App. 597, 144 S.W. 175, 178, “The question is whether the remarks of the court were such as to prejudice defendant in the minds of ordinary men in the situation of the jury, not whether or not this particular group of men believed they were not influenced against the object of the criticism”. It is often said in civil cases that a prospective juror is not the judge of his qualifications. The same is no less true in a criminal case. It is difficult to see how the remarks of the court could not have prejudiced defendant in the minds of the prospective jurors (particularly in a case where defendant was charged with breaking and escaping from jail) and for this error I would reverse the judgment and remand the cause for a new trial.


author: BARRETT, Commissioner.

text:
    Esther SPIKES, Plaintiff-Appellant, v. James M. CLARK, Aline Turner, Patrick H. Pruitt and Iris Pruitt, his wife, Cass Federal Savings & Loan Association of St. Louis, a corporation, and Richard O. Rumer, Trustee, Defendants-Respondents.
    No. 51692.
    Supreme Court of Missouri, Division No. 2.
    Jan. 9, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 13, 1967.

      Donald U. Beimdiek, St. Louis, for plaintiff-appellant; Armstrong, Teasdale, Kramer & Vaughan, St. Louis, of counsel.
    Henry Ebenhoh, Walter S. Berkman, St. Louis, for respondents Cass Federal Savings & Loan Ass’s of St. Louis, and Richard O. Rumer, Trustee.
   BARRETT, Commissioner.

Originally a suit in two counts: (1) a suit to set aside two deeds and two deeds of trust and to quiet the title to a lot and four-family flat known as 5545-47 Etzel Avenue, St. Louis, and (2) an action against James M. Clark in his capacity as a notary public and the surety on his notary bond. The parties did not make a justicia-ble issue of count two, the trial court “enters no order” with respect to it, and for the purposes of this appeal that ground of recovery has been abandoned and the judgment entered on count one is the final, appealable order. On the first count the court did not in specific terms set aside the two warranty deeds but the court, did order the grantees in those two conveyances to “transfer the parcel of real estate” to the plaintiff subject, however, to a deed of trust in favor of Cass Federal Savings & Loan Association. One of the deeds of trust had been released, the court found, as indicated, the other deed of trust to be a valid, operative conveyance as far as the plaintiff was concerned and therefore refused to set that transfer aside. In addition to this relief as to the real estate the court entered a personal judgment of $5782.49 in favor of the plaintiff against the real estate broker-notary, Clark, and the several parties to the two deeds who were also the grantors in the deeds of trust. The plaintiff, Esther Spikes, obtaining all relief asked except the cancellation of the deed of trust to Cass Federal Savings & Loan Association has appealed. Thus the appeal is in fact concerned only with the plaintiff lot owner-, Esther Spikes, and Cass Federal Savings & Loan, the beneficiary in the deed of trust and the holder of the described note for $10,-000.00, and the sole question for decision is whether the court erred in its refusal to set aside that deed of trust.

In brief the facts were that upon her husband’s death in 1958 Esther Spikes be-came the owner of the four-family flat at 5545-47 Etzel Avenue. The property was then subject to a first deed of trust to Prudential Savings & Loan and secured an indebtedness on which there was then due a balance of $2676.58. There was a second deed of trust in favor of Clayton Discount Company securing an indebtedness on which there was a balance due of $1078.-40. The entire building, exterior and interior, was in need of repairs and refurbishing. Esther occupied one apartment, the others she rented, one to Leonard Lewis, a part-time salesman for James Clark. Mrs. Spikes was anxious to sell the property but had been unable to find a buyer at her price of $13,500.00. She was also anxious to go on a vacation trip to California and on March 15, 1964, through her tenant Lewis, entered into a written “sale contract” with J. M. Clark & Son Realty Company to sell the property for the price of $13,500.00. The contract contained the name of Leon Harris as buyer — Harris was in fact a part-time employee of Clark. The recited terms of the contract were an earnest money deposit of $100.00, another payment by the purchaser on closing, August 15, 1964, of $900.00, the seller Spikes accepting as “part purchase money” a $4000.-00 note and deed of trust and, finally, “Subject to the J. M. Clark & Son Realty Co. obtaining a loan or loans for $12,500.00 amortized over a period of eighteen years.”

Mrs. Spikes left St. Louis for California on July 8, 1964. Clark took her to the Delmar station and there they engaged in a discussion as to her property. There was some difficulty about an “old mortgage” that had to be cleared up before a loan could be obtained — apparently a paid note but no release of the deed of trust and “Clark said it would cost twenty dollars to have the insurance papers to the bond.” They were early for the train’s departure and so Clark ran up to his office in Clayton "to get these papers” for Esther’s signature. She insists that he “brought three little white papers back,” they were all “insurance papers for the bond for me” and these she signed. She says however that there was no discussion of a warranty deed and she insists that neither on that occasion nor any other occasion did she sign a deed. She also says that there was no discussion as to who or how the payments on the existing obligations and deeds of trust would be made. They did talk about the necessity of certain repairs before the property could be sold but as to these and other necessary payments she said “Clark was advancing it to me and that’s why I didn’t pay the note (Provident Savings & Loan) at the time I left here.”

In any event, Esther went to California and while there Clark called her once or twice and she called him once and he did tell her that “he couldn’t get the proper loan” to complete the sale and he asked for and she gave additional time. She returned to St. Louis on August 28, 1964, but went on to Memphis for a week and back to St. Louis on September 5 at which time they discussed repairs, painters and paperhangers and she gave him ten more, days in which to find a loan and complete a sale. On September 5 she again went to California and while there received a check for $1000.00 from Clark. She refused to cash the check because “I didn’t understand it, the way he said he was sending it out of his own pockdt.” November 4, 1964, she returned to St. Louis and after checking with Prudential Savings & Loan Association learned that her notes had been paid and the deeds of trust released. The following day she met Clark at Leona Washington’s on Aubert Street and while they “discussed about the house and about the check and so forth,” he showed her an executed, recorded warranty deed to her Etzel Street property “and said that I signed it” but she said, “I didn’t sign no warranty deed for you” but he replied, “ ‘You signed it’ * * * and snatched it out of my hand.”

The deed was dated July 8, 1964, and acknowledged by Clark as notary public on that date and recorded July 9, 1964. Clark says that he delivered the deed to the title company and the company recorded it and he subsequently picked it up at the recorder’s office. The deed conveyed the property to Aline Turner who is Clark’s sister. Dated July 2, acknowledged by Clark on July 8, recorded July 9, is a deed of trust from Aline Turner to A. Bruñe securing an $8000.00 note. For this note Bruñe Realty Company on July 8 wrote three checks, one to Prudential Savings & Loan for $2676.58, one to Clayton Discount for $1078.40 and a third to Clark Real Estate Company for $3765.02. On November 5, 1964, Aline Turner for a purported consideration of $13,500.00, as shown by revenue stamps, conveyed the property to Patrick H. and Iris Pruitt (also relatives of Clark), and this conveyance was acknowledged by Clark. On the same day, acknowledged by Clark, the Pruitts executed the deed of trust involved here— in favor of Cass Federal Savings & Loan and securing a note for $10,000.00. With this $10,000.00 the $8000.00 note to Bruñe, plus interest, was paid. And from it Clark says he paid “the taxes, escrow account, appraisal fee” and a fee to Discount for securing the loan. The balance of $1272.44 Clark deposited in his bank account which with the $3765.02 from Bruñe totaled $5037.16 for which he has not accounted to Mrs. Spikes. Incidentally, Leon Harris, purchaser in the sales contract, was also a part-time employee of Clark’s and none of the grantors and grantees in the warranty deeds received or paid any sum of money — they were all straw parties for Clark.

In these circumstances, as indicated, the court has entered a personal judgment for $5782.49 in favor of Esther and against Clark, Turner and the Pruitts. Upon a specific finding that Clark, Turner and the Pruitts “wrongfully and falsely misrepresented the facts concerning the transactions relating to the parcel of real estate” and “wrongfully and fraudulently” placed a deed of trust upon the property, the court has ordered all of these parties to transfer the property to Esther subject, however, to the Cass Federal Savings & Loan indebtedness and deed of trust. Clark has made two or three payments on that note. Mrs. Spikes has made no payments to anyone, paid no rent and the Cass Federal obligation is now in default.

Thus except as to Cass Federal Mrs. Spikes has been awarded the maximum relief asked, even that could be given in the circumstances, that is, title to the property has been restored to her and she has a personal judgment against Clark, Turner and Pruitts which accounts for all sums due her from the Bruñe and Cass loans not employed in payment of her prior loans, taxes, insurance and repairs. But she is not satisfied with this disposition of her cause because it is all subject to the note and deed of trust held by Cass and she contends that she should have the title to her property restored free even of that obligation. The appellant concedes, tacitly, that under the court’s finding she is not entitled to that relief and, therefore, she contends that in the circumstances the court erred in “failing to find that the warranty deed of record to Aline Turner (July 8, 1964) was invalid.” She does not contend that Cass Federal’s note and deed of trust in and of themselves are void or even invalid for any reason. She makes two basic points but they are interrelated and interdependent and both hinge on her success in setting aside the deed of July 8, 1964. She does not contend that the deed was not physically delivered, she claims that in the circumstances which she details that the court should have found no delivery because there was no intent to deliver and she argues that “the great weight of the evidence supports appellant’s pleaded position.” The gist of the argument is that the deed from appellant Spikes to Aline Turner is void and therefore all subsequent conveyances and encumbrances are also void; in short, that in the circumstances Cass Federal is not a bona fide purchaser entitled to the protection here afforded by the Court’s decree.

To make her position perfectly plain, she claims that in the circumstances of this record the July 8th deed was procured by that species of fraud rendering the instrument void for all purposes: “According to some courts, where the grantor’s signature to a deed is procured by fraudulently concealing the character of the instrument as a deed or inducing him to believe he is signing something other than a deed, the instrument is regarded as a forgery and is for that reason absolutely void, conferring no title or right upon the grantee or anyone claiming through or under him. Such instrument, when regarded as a forgery, is invalid in the hands of anyone to the same extent that it would have been if the grantor’s signature had been actually forged by a third person.” 23 Am. Jur.2d (Deeds) § 142, pp. 188-189. In support of the text and her argument the appellant relies on Horvath v. National Mortgage Co., 238 Mich. 354, 213 N.W. 202, 56 A.L.R. 578, cited in a per curiam by this court in the bizarre case of Branner v. Klaber, 330 Mo. 306, 330, 49 S.W.2d 169, 179. It is not necessary to examine the Horvath case in exhaustive detail, it is sufficient to say that if the grantor there, an illiterate Hungarian immigrant, signed the deed, her signature was “obtained from plaintiff by trickery.” Consequently it was held that the grantor “never meant to execute a deed,” and, the court said, “The deed was in law a forgery.” And, consequently, it was held that subsequent mortgagees were “in no better position as to title than if they had purchased with notice” and so of course the note and mortgage were declared void. It should be noted, however, that in Leidel v. Ballbach, 345 Mich. 201, 75 N.W.2d 860, the Michigan court carefully examined the Horvath case and concluded with the distinction that “where a person knowingly signs a deed the Horvath case, supra, cannot be invoked to make such signature a constructive forgery." And in a North Dakota case, Hoffer v. Crawford, N.D., 65 N.W.2d 625, the Supreme Court further explained the Hor-vath case pointing out that its own and predecessor annotations had noted “that there is a divergence of opinion on the question under discussion, the majority of the jurisdictions holding that the procuring of a signature by fraud is not forgery.” Annotation 56 A.L.R. l.c. 582; 14 A.L.R. l.c. 316 and see the related annotations 57 A.L.R. 759, on the subject “Protection, as against third persons, of grantor tricked into delivering deed without getting cash payment contemplated,” and 48 A.L.R. 405 on unauthorized delivery.

This is not the place and there is no necessity to precisely distinguish the cases, texts and annotations and spell out their exact meaning, it is sufficient to say that this appeal is to be decided within their framework even though the parties have inadequately explored the general rules there announced. Then too in this connection there is a line of Missouri cases, not cited by the parties, and they too should be noted in passing even though they may not all be readily reconciled. Wineland v. Coonce, 5 Mo. 296; Gordon v. Ritenour, 87 Mo. 54; Craig v. Zimmerman, 87 Mo. 475 ; Wiggenhorn v. Daniels, 149 Mo. 160, 50 S.W. 807. The Missouri case relied on by the appellant is Delaney v. Light, Mo., 263 S.W. 813, readily distinguishable in that it was a suit between the immediate parties, grantor and grantee, and in fact involved a forged deed and a grantee’s name inserted in a blank space by his agent and so it was held that as to a grantee who had paid $4500.00 for a $40,-000.00 piece of property the doctrine of equally innocent parties was not applicable. And finally in recognition of all the applicable rules it should be noted that “a deed executed under the inducement of fraudulent misrepresentations is merely voidable, not void, and may be the foundation of a good title in the hands of one who takes the conveyance of the land in ignorance of the fraud practiced on the original grantor. * * * Also, a distinction is to be made between cases in which the deed was procured by the fraud of the grantee and those in which it was delivered, to the grantee through the fraud of the grantor’s agent, in whose hands the deed was placed to be delivered only upon performance of some stipulated condition; the innocent purchaser will he protected in the latter case, even though he will not be protected in the former case.” 23 Am.Jur. 2d (Deeds) § 145, pp. 190-191. Upon this particular record it may have been unnecessary to give recognition to all these rules even though in one way or another the appellant invokes them.

As noted, the plaintiff in her petition pleads as one alternative that if her signature appears on the July 8 deed “it was obtained by Defendant James M. Clark by a trick or device without Plaintiff having any knowledge or information that it was a Warranty Deed.” The difficulty with this plea and her counsel’s argument is that when it came to her testimony the subject or theory of a trick was not mentioned. Repeatedly on direct examination she said that she signed “three little white (insurance) papers,” positively and insistently she said that she did not sign any other paper or document. Even on November 5th, when he showed her the recorded deed, she said, “I didn’t sign no warranty deed for you” — by trick or otherwise: “Q. Did you sign a warranty deed that looked like that, Mrs. Spikes? A. No, sir, I did not.” And she said that she did not go before a notary public and acknowledge a deed or give one to Clark or to anyone else. To make her position perfectly plain, after she had been recalled in chief a second time, there were these questions and answers on cross-examination:

“Q. In other words, it’s not a question of your signing something and not noticing what you signed, is that right?
“A. No.
“Q. Did you sign anything else other than those three papers ?
“A. No, I did not that day, no, sir.
“Q. Did you sign anything else besides those two (three) papers?
“A. That particular day?
“Q. On any day for Mr. Clark.
“A. No.
“Q. Nothing at all? A. No.”

And so there was no trick as in numerous cases of substituted, concealed or folded papers, or of signing one document under the distinct impression and belief she was signing another — she simply denied signing the deed or any other document other than the three insurance papers.

Mrs. Spikes admitted the genuineness of her signature on the “sale contract.” On several other papers, for example an “affidavit and agreement,” she denied her signature or its genuineness. Shown a photostatic copy of the warranty deed by her counsel, Mrs. Spikes said that it was a copy of the deed Clark had shown her on November 5, but she said:

“Q. Now, Mrs. Spikes, on the bottom of the first page of Exhibit 2 (the deed of July 8) there appears some handwriting. Can you recognize that (the signature) ? A. No.
“Q. Did you sign a warranty deed that looked like that, Mrs. Spikes ?
“A. No, sir, I did not.”

From this testimony and throughout the trial it is plain beyond question that Mrs. Spikes denied her signature to the deed of July 8 and this became and is the crux of the case. Clark is hardly worthy of belief, nevertheless he testified that on the day before she left for California Mrs. Spikes signed and acknowledged the deed to Aline Turner. He says that he explained to her the difficulties he had encountered in securing a loan and ultimately a purchaser but “she told me, the last thing she said, to work out the best deal possible for her.” And again and again he testified that she signed and executed the deed, for example, on cross-examination:

“Q. Mr. Clark, the deed that you have testified to was signed by Mrs. Spikes in your presence the day before she left for California?
“A. Yes, sir.
“Q. A photostatic copy of which has been admitted in evidence in this case * * * I am speaking of the warranty deed which bears the date of July 8, 1964, * * *. Would you say you saw Mrs. Spikes sign it the day before she left for California? Was the deed at the time she signed it a conveyance to Aline Turner, as shown in the exhibit?
“A. Yes.”

Even though Clark’s testimony be discounted, the trial court, nevertheless, specifically found “that the signature of plaintiff Spikes affixed to the Warranty Deed, dated July 8, 1964, is not a forgery and that she signed and executed the same” and, unfortunately for the appellant, that finding is supported by testimony other than Clark's. Called as a defendant's witness, a qualified handwriting expert testified that he had examined Mrs. Spikes’ admitted signature on the sale contract and the signature on the “original (not the photostatic copy) warranty deed” and he was positive in his opinion and conclusion:

“A. As a result of the examination and comparison conducted, I arrived at the conclusion that the signature ‘Esther Spikes’ on Plaintiff’s Exhibit 2—
“Q. That is the general warranty deed?
“A. Right. Was executed by the same individual who executed-the Esther Spikes signature on Defendant’s Exhibit C and D, and Plaintiff’s Exhibit 1.
“— I reached the conclusion all the signatures were written by one and the same individual.
“Q. In your judgment then, all the signatures, including the signature on the warranty deed, the document labeled ‘sales contract,’ and the two samples of the known handwriting of the plaintiff, are one and the same ?
“A. That is correct.”

Thus there was a direct conflict in oral testimony, Mrs. Spikes testifying that she had not signed the warranty deed of July 8, not that she was tricked into signing it or that she was fraudulently deceived into executing it, and Clark testifying that she did sign and acknowledge the instrument and the handwriting expert testifying in effect that she had indeed signed it. Disbelieving Clark at least in part, other than Mrs. Spikes’ denial and its implications, the expert’s testimony is all but un-contradicted. In these circumstances, the ultimate and determinative fact being dependent almost alone on credibility, this is an appropriate occasion to defer to the finding of an experienced judge. Mueller v. Mueller, Mo., 318 S.W.2d 365, 369. Once deference is paid the specific and supported finding “that the signature of plaintiff Spikes affixed to the Warranty Deed, dated July 8, 1964, is not a forgery and that she signed and executed the same,” all determinative issues are resolved. This is not to in any manner modify the previously noted general rules, it is only to say that in the particular circumstances of this record, in this court-tried case and review anew (Civil Rule 73.01, V.A.M.R.; RSMo 1959, § 510.310, V.A.M.S.) another and different finding and conclusion could not be confidently reached. The deed having thus been validly executed and delivered, even though by the agency of a species of fraud practised by Clark and his straw-party relatives and employees,- was not void and as between the two equally innocent parties, Mrs. Spikes on the one hand and Cass Federal on the other hand, the loss must necessarily fall upon the grantor whose conduct and misplaced confidence initially brought about the circumstances permitting the subsequent misconduct and resulting loss. Leonard v. Shale, 266 Mo. 123, 181 S.W. 16; Godwin v. Gerling, 362 Mo. 19, 239 S.W.2d 352, 361, 40 A.L.R.2d 1250; Klatt v. Wolff, Mo., 173 S.W.2d 933, 938; Bolivar Reorganized School Dist. No. 1 Polk County v. American Surety Co., Mo., 307 S.W.2d 405, 410, 70 A.L.R.2d 1361; 27 Am.Jur.2d (Equity) § 147, p. 683.

Thus likewise finding the facts, after deference, and the consequently necessary conclusions, the judgment accordingly quieting the title (Civil Rule 93.01, V.A. M.R.; RSMo 1959, § 527.150, V.A.M.S.) and determining the rights of the parties is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


author: FINCH, Judge.

text:
    Katherine NOEL, Plaintiff-Appellant, v. John C. BUCHHOLZ, Defendant-Respondent.
    No. 51454.
    Supreme Court of Missouri, Division No. 2.
    Jan. 9, 1967.
    Motion for Rehearing or for Transfer to Court En Banc Denied Peb. 13, 1967.

      Lewis, Rice, Tucker, Allen & Chubb, J. L. Pierson, Clayton, for plaintiff-appellant.
    Rene J. Lusser, Lusser, Hughes & Lusser, St. Louis, for defendant-respondent.
   FINCH, Judge.

Plaintiff appeals from a judgment entered following direction by the trial court of a verdict for defendant at the close of plaintiff’s case. Plaintiff’s petition sought damages of $25,000, and we have jurisdiction.

Plaintiff was an employee of Rold Gold Foods, Inc. That company arranged an awards dinner for its employees to be held on the evening of November 3, 1962. The company rented from defendant a second floor social hall known as Idle-A-Wile Hall for the occasion and arranged with a caterer to serve the dinner.

The stairway leading to the hall consisted of a single stairway to a platform or landing from which there were two sets of stairs turning to the left and right, respectively, for the remaining five steps to the social hall. The hall itself was a large room, the center of which was covered with a wooden dance floor. Around the edges of the room was a border strip. A portion of this border ran from the head of the left stairway to a cloakroom. This strip was covered with asphalt tile which was 29 feet in length and approximately 4 feet in width.

Plaintiff arrived at 6:30 p. m. As she came up the stairs she turned to the left. This took her to the asphalt tile strip leading to the cloakroom. Most of the people who were to attend had not yet arrived but some were there.

The hall was well lighted. Plaintiff, when she reached the head of the stairs, could observe the asphalt strip all the way to the cloakroom. She noticed that it was shiny and glossy and appeared to be buffed. It was clean and plaintiff did not observe any foreign objects on the floor. She walked about five steps on the asphalt strip and had no particular difficulty in walking. She stopped to speak to two people, one of whom told her to put her coat in the cloakroom. She then took another step or two and fell to the floor. Plaintiff testified that to that day she did not know what caused her to fall.

Other witnesses for plaintiff testified that the asphalt border was highly polished and slick or slippery. It was uniform all the way from the stairs to the cloakroom and contained no holes or defects. One witness testified that as she walked along the strip she held onto her husband’s arm and onto chairs at tables which adjoined the asphalt strip. The president of Rold Gold testified for plaintiff and stated that he saw plaintiff fall and that it appeared her feet just slid out from under her.

Plaintiff was removed by ambulance to the hospital, where it was ascertained that she had injuries which included a fractured hip. We need not detail the extent of plaintiff’s injuries or the amount of her medical expenses or time lost from work because we are concerned here only with whether plaintiff made a submissible case.

Plaintiffs allegations of negligence on the part of defendant were (1) waxing of the strip so as to make it unusually slippery to a high and dangerous degree, making it unsafe and dangerous to persons walking thereon; (2) failure to put a runner, carpet or other covering on the strip; (3) failing to give notice or warning of its unusually dangerous condition to those walking upon the strip; (4) failing to furnish plaintiff with a reasonably safe means of ingress and egress to the social hall, and (5) negligence in maintaining the strip which, because of its waxed and slippery condition, its incline and its location, was dangerous to persons walking thereon.

Plaintiff offered as admissions against interest certain answers of the defendant to interrogatories and depositions. These disclosed that the asphalt tile strip was waxed two or three times a year with Johnson’s Hard-Gloss Glo-Coat Wax which was applied with a mop. Defendant did not know the date of the last application because the man who actually had done that work was deceased at that time, but defendant stated that the floor had not been waxed in the period immediately prior to November 3, 1962. He also testified that a buffing machine was used on both the wooden floor and the asphalt tile border two or three days before each occasion when the social hall was to be used.

We have concluded that plaintiff did not make a submissible case and that the trial court properly directed a verdict for the defendant.

Plaintiff’s brief discusses the status occupied by plaintiff and asserts that she was a guest of a lessee. Consequently, says plaintiff, she falls within the “public use” rule and need not prove lack of knowledge on her part of the dangerous condition. We do not reach that question for decision because, even assuming such status, the duty on the landlord still is to exercise ordinary care to keep the premises reasonably safe for the guest’s use. The plaintiff does not make a submissible case unless there is evidence to show negligence on the part of the defendant by failing to exercise such ordinary care.

Plaintiff’s evidence disclosed that the asphalt tile border between the steps and the cloakroom had been waxed sometime previously with Johnson’s Hard-Gloss Glo-Coat. The entire floor, including the dance area and the asphalt tile border, had been buffed with a buffing machine two or three days before November 3, 1962. This was the standard practice prior to each use of the hall. The asphalt tile strip had no defects or holes and was in good condition. It was clean and free of any dirt or foreign objects. It was uniformly shiny and glossy. It was slick but was uniform from the top of the stairway to the cloakroom. The area was well lighted. There was neither allegation nor proof that the wax was incorrectly applied or was uneven or excessive or that the place where plaintiff fell was any more slippery or different than the rest of the strip. There was no evidence that it was any different from any properly waxed and polished asphalt tile surface. Plaintiff herself testified that to that day she did not know what caused her to fall. She had walked five steps without difficulty, then stopped to talk to two people, and after taking another step or two fell.

This evidence simply does not show negligence on the part of the defendant unless we are prepared to hold that in an area which is well lighted and not in any way hidden or concealed, the mere waxing and polishing of an asphalt tile floor in good condition so that it is glossy and slick is negligence. This, we are unwilling to do. In Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723, 728, this court considered a fall by plaintiff on a linoleum floor in the office of the defendant company. A paste wax had been applied and the floor then polished with an electric buffer until it was slick and glossy. There were no foreign objects on the floor and no showing that the waxed surface was any different than at any other times. There was evidence that the floor was slightly wavy. The court en banc held that a submissible case was not made. It is true, as plaintiff points out, that Ilgenfritz involved a business invitee rather than a guest of a lessee, and that a business invitee is required to prove lack of knowledge on his part. The language of the court, however, discloses that it found that there was no showing of negligence on the part of the owner and consequently knowledge of invitee was not determinative. The court, 101 S.W.2d at page 728 of Ilgenfritz, said: “However, whether she was careful or not, or whether her conduct was contributory negligence or not, makes no real difference, because there was no evidence to show that defendant was guilty of any negligence, and, even if plaintiff was careful, defendant is only liable if it was negligent. It was not negligent unless there was something on the floor that in the exercise of due care should not have been there. This evidence does not show that there was. To hold defendant liable here would make it liable as an insurer and not because of negligence.”

The rule in Ilgenfritz has been applied in later cases. Howard v. Johnoff Restaurant Co., Mo., 312 S.W.2d 55; Lawson v. Higgins, 350 Mo. 1066, 169 S.W.2d 881; State ex rel. Golloday v. Shain, Mo., 110 S.W.2d 719. See also Annotation: 63 A.L.R.2d 591, 630, 634.

We have considered all of the cases cited by plaintiff, but consider it unnecessary to analyze each in detail. We find nothing therein to cause us to reach a different result.

Plaintiff also complains of certain trial errors in the exclusion of evidence. Her first complaint relates to the action of the trial court in excluding evidence relative to slipping by other people during the evening. Offers of proof were made. One offer was to show that later in the evening the witness saw someone slip on the asphalt tile three or four feet from the stairway. The second offer was to “attempt to prove by this witness that she did see another person slip on the evening in question.” The third offer was to show that a person who came up the stairway to the right slipped when she stepped on the floor at that point. Defendant questions the sufficiency of the offers of proof and the relevancy of this evidence, but even if the evidence as offered had been admitted, negligence of the defendant would not have been proved, and there still would not have been a submissible case under the rule in Ilgen-fritz. Under such circumstances, the ruling of the court on these offers of proof could not have been prejudicial error.

The trial court also struck the statement of one witness that “the level of the floor at the outer wall is lower than the level of the floor more toward the center of the hall.” The court told counsel that he could offer measurements to show that the floor sloped, but he would not permit the above answer to stand. The hall was 100 feet by approximately 47½ feet in size. This answer referred to relative elevation of the floor in the center of the room with the sides thereof and did not necessarily indicate any sloping whatsoever of the asphalt strip, or if so, how much. Counsel was given the opportunity to offer specific measurements with reference to the asphalt strip, but this was not done. The ruling was not erroneous.

Finally, plaintiff complains of the exclusion of testimony of witness Froelich, President of Rold Gold, that after plaintiff fell, he posted a guard to warn guests. If, as we have found, there was not sufficient evidence to make a submissible case of negligence on the part of defendant, this evidence as to the posting of a guard by Froelich would not have supplied the deficiency. Under these circumstances, its exclusion clearly was not error.

The judgment is affirmed.

All of the Judges concur.

      . Brown v. Reorganization Investment Co., 350 Mo. 407, 166 S.W.2d 476; Warner v. Pry, 360 Mo. 496, 228 S.W.2d 729; Restatement of Torts, § 359.


author: HYDE, Judge. PER CURIAM.

text:
    CHEMICAL WORKERS BASIC UNION, LOCAL NO. 1744, Plaintiff-Appellant, v. ARNOLD SAVINGS BANK, a Corporation, Defendant-Respondent.
    No. 52343.
    Supreme Court of Missouri, En Bane.
    Dec. 12, 1966.
    Motion for Rehearing or for Directed Verdict Denied Feb. 20, 1967.

      Isaac E. Young, Maplewood, for appellant.
    John L. Anderson, Anderson, Anderson & Brooking, Hillsboro, for respondent.
   HYDE, Judge.

Action to recover the amount paid by defendant on a check ($2517.98) payable to plaintiff on a forged or unauthorized endorsement. There was a jury verdict for defendant and plaintiff appealed to the St. Louis Court of Appeals from the judgment entered. The Court of Appeals affirmed the judgment and we transferred the case here on application of plaintiff under the provisions of Sec. 10, Art. V of the Constitution, V.A.M.S. Because of our view on a decisive issue, we do not reach issues discussed by the Court of Appeals.

The check was issued on December 20, 1955, by the General American Life Insurance Company payable to the order of Chemical Workers Basic Union Local 1744, drawn on the First National Bank of St. Louis. The check was cashed by defendant Bank on December 30, 1955, by paying the amount thereof to Morris Parker, who was at that time president of plaintiff union. The check was issued for dividends earned under a hospitalization insurance policy and had been delivered to Morris Parker. Plaintiff’s petition alleged: “That said Morris Parker came into possession of the above mentioned check and instead of depositing said check into the regular funds of the union, said Morris Parker did wrongfully and intentionally forge the name of the plaintiff, who was the payee on the check and present same at the defendant for payment.

“5. The defendant bank did thereafter cash the above mentioned check containing the forged signature of the plaintiff and pay the entire proceeds to said Morris Parker and did wrongfully and intentionally convert the proceeds of the check payable to the union and did instead pay them to Morris Parker.” (Emphasis ours.)

It was also alleged that “defendant has received the money on this forged indorsement and did in fact guarantee all prior in-dorsements on the check.”

This action was commenced September 20, 1962, and defendant’s answer alleged the action was barred by the five-year statute of limitations, Sec. 516.120 (statutory references are to RSMo and V.A.M.S.). Defendant also raised this issue by motions for directed verdict at the close of plaintiff’s evidence and at the close of all the evidence. The applicability of this statute depends on what kind of action this is. Plaintiff contends it is an action upon a writing so that the ten-year statute, Sec. 516.110, would apply. Plaintiff’s theory is that “the defendant was being sued on the forged endorsement of the payee and the defendant bank after cashing the check did thereafter clear the check through the St. Louis Clearing House and did in fact, guarantee all prior endorsements on the check.” Defendant mainly relies on Borserine v. Maryland Casualty Co. (USCA 8th), 112 F.2d 409, and also on Home Insurance Co. v. Mercantile Trust Co., 219 Mo.App. 645, 284 S.W. 834. The fallacy of plaintiff’s theory is that it is not an endorsee and there is no endorsement to it or under which it can claim any rights. It is not suing on and does not have a cause of action on an endorsement; instead it alleges a conversion of the proceeds of the check. We pointed out this distinction of the Borserine case in National Surety Co. v. Columbia National Bank of Kansas City, 348 Mo. 226, 153 S.W.2d 364, 370, saying: “In that case * * * the plaintiff was subrogated to the rights of an endorser who had received the checks from a prior endorser, had became a holder in due course, and had thereafter endorsed and collected the checks from the drawee banks. When the maker of the checks discovered that the names of the payees had been forged, it called upon the drawee banks to restore its accounts and the drawee banks called upon plaintiff’s insured to make good upon its endorsements. The plaintiff settled with the maker of the checks and the drawee banks and, having done so, was subrogated to the rights of its insured and brought suit on the endorsements of the defendant, who had originally received the checks and taken them on the forged endorsements of the payees and had, thereafter, negotiated them to plaintiff’s insured.” See also 11 Am.Jur.2d, Bills and Notes, Secs. 611, 613, 616, 625. Thus plaintiff’s action (as subrogee of an endorsee) was on the endorsement of Borserine, who had first received the check with a forged endorsement.

In the National Surety case, we held the action barred by the five-year statute of limitations. In it the plaintiff, drawer of checks, claimed its action was on endorsements of the defendant bank, which had cashed checks on bogus endorsements. As in this case, the checks were drawn on another bank and the defendant bank to collect them endorsed them and guaranteed the validity of the prior endorsements. The drawer’s loss was paid by the plaintiff Surety Company which was subrogated to the drawer’s rights and brought this suit. We pointed out (153 S.W.2d 1. c. 368) that the drawer “was not a subsequent endorser, it did not accept the checks from defendant bank or from any prior or subsequent endorsers, in reliance on said endorsements. * * * It paid out no cash or credit in reliance upon these endorsements. The checks were not dishonored, but in fact paid upon presentment to the drawee bank. * * * No subsequent holder or endorser subsequent to defendant bank has been compelled to pay them. * * * There is no suggestion in the pleadings or evidence that the drawee bank has suffered any loss or had to pay the checks from its own funds, or that plaintiff is subrogated to the rights of the drawee bank on the endorsements on these checks.” We held: “The action is one for money had and received by defendant bank from Doherty and Company’s account (drawer of the checks) and is governed by the five-year statute of limitations. * * * [T]he obligation of defendant to repay to Doherty and Company the rmoney obtained by defendant on the checks was, under the facts stated, an obligation implied by law from the transaction alleged and was an obligation which would arise from the proof of the extrinsic facts alleged and was barred in five years.”

In this case, plaintiff is the payee of the check and not the drawer thereof nor a subrogee of anyone. In the Home Insurance Co. case (284 S.W. 834) plaintiff Insurance Company brought suit against ,two banks “on their endorsements, in writing, on the back of a draft paid by plaintiff.” The draft had been paid by the St. Louis County Bank to an insurance agent, not authorized to collect the draft, who appropriated the money to his own use. In a suit by the payees named in its draft the Insurance Company was required to pay to them the amount of the draft. The suit of the Insurance Company was against the St. Louis County Bank which had paid the amount of the draft to the unauthorized agent, on his endorsement, and the Mercantile Trust Company, which had received the amount of the draft from the Insurance Company’s New York bank. Both of these forwarding banks had endorsed the draft guaranteeing all prior endorsements. The court held: “[T]his is an action based upon the warranty made by the indorsers of the genuineness of a previous indorsement, and is an action upon a writing for the payment of money, and therefore within the terms of the 10-year statute of limitations.” We do not have the same situation here and would have it only if the drawer of the check (General American) could have been required to make good the loss to the Union and was seeking to recover on this defendant’s endorsement. In such a situation, if there could be conflict between the Home Insurance Co. case, 219 Mo.App. 645, 284 S.W. 834, and National Surety Co. v. Columbia National Bank, 348 Mo. 226, 153 S.W.2d 364, the latter is the controlling authority. For other cases concerning right of drawer of check against collecting bank see Annotation, 99 A.L.R.2d 637.

“[T]he general rule is that a collecting bank which accepts a check on a forged indorsement acquires no title and holds the proceeds of the check, when collected from the drawee bank, for the payee or rightful owner, who may recover from the collecting bank as for money had and received, even though it has fully paid over and accounted for the same to the forger without knowledge or suspicion of the forgery; such rule being based upon the theory of the payee’s ratification of the collection of the check from the drawee. The rule applies to indorsements by a person bearing the same name as the payee, and to indorsements by the payee’s agent without authority.” 5B Michie on Banks and Banking 96, Sec. 278. Forged or unauthorized signatures were placed on the same basis by Sec. 401.023.

It is Said 6 Zollmann Banks and Banking 465, Sec. 4252, as to the rights of the payee of a check against a bank collecting from the bank on which the check was drawn: “The money collected belongs to the payee the same as if it had been collected without any indorsement. The bank acquires no title to either the check or its proceeds, but holds such check or its proceeds for the payee, who may elect to ratify the collection and hold the discounting bank in an action for money had and received, or in an action in conversion.” It is also said: “The theory underlying the above rule has been expressed in various ways, all of which may be summed up in the statement that the possession of the check on the forged or unauthorized indorsement is wrongful, and when the money has been collected on the check, the -bank, .or other person or corporation, can be held as for money had and received and the statute of limitations governing actions on implied contracts is applicable.” 10 Am.Jur.2d 600, Banks and Banking, Sec. 632; see also 10 Am.Jur.2d 596, Sec. 629; Vol. II, Paton’s Digest of Legal Opinions 1840; Annotations, 31 A.L.R. 1071; 67 A.L.R. 1536; 100 A.L.R.2d 670; 9 C.J.S. 762 Banks and Banking § 357c. The action was held to be in conversion in Kansas City Casualty Co. v. Westport Avenue Bank, 191 Mo.App. 287, 177 S.W. 1092; Good Roads Machinery Co. v. Broadway Bank, Mo.App., 267 S.W. 40; Aetna Casualty & Surety Co. v. Lindell Trust Co., Mo.App., 348 S.W.2d 558, 563; but in Universal Carloading & Distributing Co. v. South Side Bank, 224 Mo. App. 876, 27 S.W.2d 768, the action was held to be for money had and received. In all of these cases the action was against a collecting bank as here and not against the bank on which the check was drawn. “[I]t has been stated that the check owner may elect to proceed either in assumpsit for money had and received, or in trover for conversion.” 100 A.L.R.2d 672. In either case, the five-year statute of limitations would apply.

In the Kansas City Casualty case, 191 Mo.App. 1. c. 289, 177 S.W. 1. c. 1093, in which the action was considered to be in conversion, the court said: “But the present action is not ex contractu; it is ex delicto. Defendant bank has not contracted to pay the Inter-City Grocery Company the amount of the checks in controversy, but it has wrongfully intermeddled with them to the exclusion and in disregard of the rights of the true owners, and that is a conversion. A conversion is ‘any distinct act of dominion wrongfully exerted over one’s property, in denial of his right, or inconsistent with it.’ 2 Cooley on Torts, 859.” In the recent case of Brede Decorating Inc. v. Jefferson Bank & Trust Co., Mo.Sup., 345 S.W.2d 156, 164, we considered such an action a suit in conversion, saying: “[D]amages for the conversion of a promissory note, bond or other negotiable instrument is prima facie its face value.” Clearly, in this case, plaintiff’s action is not “upon any writing * * * for the payment of money” but for conversion and the five-year statute of limitations applies. There is no pleading or proof as to any fraud on the part of defendant which could make applicable the provisions of Sec. 516.120(5); see Obermeyer v. Kirshner, 225 Mo.App. 734, 38 S.W.2d 510, 514, and cases cited; see also cases cited West’s Missouri Digest, Limitation of Actions, Since this action was barred by the five-year statute of limitations, the court should have directed a verdict for defendant; but the correct judgment was entered on the verdict of the jury.

The judgment is affirmed.

All concur.

On Motion for Rehearing

PER CURIAM.

Plaintiff claims the opinion herein overlooked and failed to apply Sec. 516.100, RSMo V.A.M.S., the part of which claimed applicable hereto is as follows: “[T]he cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment”. The proviso stating this principle was added to what is now Sec. 516.100 (then Sec. 1887, R.S.1909) by amendment in 1919, Laws 1919, p. 211. Therefore, the older cases cited by plaintiff do not have much value in construing this provision. Moreover, they would be more applicable to a suit by plaintiff against its president than to this action against the bank.

It is stated, 54 C.J.S. Limitations of Actions § 174, p. 141: “Under statutes providing that in personal actions the cause of action shall not be deemed to accrue when the wrong occurs or the technical breach of duty occurs, but when the damage resulting therefrom is sustained and capable of ascertainment * * * it has been held that, in cases falling within the purview of the statute, if the action is of a nature to be maintained without proof of actual damage limitations will run from the time of the wrongful act, but that, when the act is not legally injurious until certain consequences occur, then the period of limitations runs from the date of consequential injury. The injurious consequences or resulting damages which bring about accrual of the cause of action are the indispensable elements of the injury itself and not mere aggravating circumstances enhancing a legal injury already inflicted or the mere development of the injury, and the resulting damage is sustained and capable of ascertainment within the contemplation of the statute whenever it is such that it can be discovered or made known.”

We said in Rippe v. Sutter, Mo.Sup., 292 S.W.2d 86, 90, that this statute “does not change the general rule that ‘when an injury is complete as a legal injury at the time of the act, the period of limitation will at once commence.’ ” (All emphasis ours.) In the Rippe case which was for damages for property taken under void judgments, we held the limitation period began on rendition of the void judgments. See also Allison v. Missouri Power & Light Co., Mo. App., 59 S.W.2d 771, 773, as to personal injury cases.

In Gruenewaelder v. Wintermann, Mo. Sup., 360 S.W.2d 678, we reaffirmed the rulings of the Rippe and Allison cases, affirming the court’s action in entering a summary judgment against the plaintiff “on the theory that plaintiff’s action was barred by the five-year statute-of- limitations”. We held “that Section 516.100 RSMo 1959, V.A.M.S. cannot aid the appellant under the undisputed facts of this case, because of an applicable rule of law well stated in Rippe v. Sutter, supra”. In the Gruene-waelder case, the plaintiff alleged a conspiracy to defraud her of certain mining property, in another state, seeking both actual and punitive damages. The property was lost by foreclosure of a mortgage within the five-year limitation period. However, plaintiff’s action was based on fraud in obtaining the mortgage and we held plaintiff had knowledge of the alleged fraud more than five years before and did not bring suit to rescind. Thus the damage was sustained and capable of ascertainment when the mortgage was executed rather than when it was foreclosed.

An early case considering the 1919 amendment to Sec. 516.100 is Dennig v. Meckfessel, 303 Mo. 525, 261 S.W. 55, 57, which was an action for contribution among co-guarantors after payment of common obligations. It was contended the action did not accrue until liquidation of the company whose obligations were paid, because this would reduce the amount of the obligations guaranteed. The court held “plaintiffs were entitled to contribution the moment they paid the common obligations.” By way of dictum, since the court held the actions barred before the effective date of the 1919 amendment, the court said: “[I]f this proviso were applicable, it is plain that by its terms the causes of action accrued when the obligations were paid, as the liability of each guarantor was then capable of ascertainment.” What is meant by “capable of ascertainment” is also illustrated by Lewis v. Thompson, 231 Mo.App. 321, 96 S.W.2d 938. The issue was whether the cause of action for services in the sale of lumber yards accrued on March 23, 1927, when the contract of sale was entered into or on April 2, 1927, when the inventories of the merchandise, lumber and other materials were completed. Since plaintiff’s compensation was claimed on the basis of a percentage of. the sale price, it was held that the compensation was capable of ascertainment only after inventories were completed, so that statute of limitations did not begin to run until after that date.

In construing this statute we must consider that it does not say accrual of a cause of action is postponed until discovery of a wrongful act but only says accrual is postponed until the damage resulting from a wrongful act “is sustained and is capable of ascertainment.” In short, the statute begins to run when the damage is sustained and is capable of ascertainment. The failure to discover the wrongful act does not prevent the accrual of the action after the damage is sustained and is capable of ascertainment, unless, of course, the discovery is prevented by fraud or deception. Sec. 516.120(5). Even under that provision: “A general charge of ignorance at one time and of subsequent knowledge at another, as well as mere silence, is insufficient to toll the statute.” Brown v. Irving-Pitt Mfg. Co., 316 Mo. 1023, 292 S.W. 1023, 1025. We further held in that case: “When discovery is relied upon to toll the statute, the pleading should aver when it was made, what it was, how it was made, and why it was not made sooner.” See also Hays v. Smith, Mo.Sup., 213 S.W. 451, 456, citing cases holding “mere silence of the debtor will not excuse the creditor’s failure to discover the fraud”; likewise Clapp v. Leavens, 8 Cir., 164 F. 318, 321, saying “mere ignorance of the plaintiff of his cause of action will not prevent the running of the statute.” We, therefore, hold the general rule must be applied as thus stated in Hunter v. Hunter, Mo.Sup., 237 S.W.2d 100, 103: “A cause of action accrues, and limitations thereon begin to run, when the right to sue arises.”

In this case, the injury to plaintiff was complete as a legal injury at the time defendant cashed the check for plaintiff’s president on his unauthorized endorsement. The damage was then sustained and upon any inquiry it soon could have been discovered and made known. Since the amount of damage was the amount of the check, it was then capable of ascertainment within the contemplation of Sec. 516.100. Certainly with reasonable diligence on the part of plaintiff’s officers, they could have discovered this unauthorized act of their president well within the period of limitations. Plaintiff’s officers knew they had a participating policy with General American from which they could expect annual dividends; but they did nothing to find out when or what dividends were paid or who received the dividend checks. Apparently they let their president receive and cash these dividend checks for several years without making any inquiry to the Insurance Company. Defendant Bank did nothing but cash this check and in no way concealed the transaction from anyone. In any event, it was submitted to the jury by Instruction D-4 to find in favor of defendant “if plaintiff had the means of discovering in its power or by the exercise of reasonable diligence could have discovered same” (payment of $2517.68 to Morris Parker) “at any time prior to September 20, 1957.” (Suit was commenced September 20, 1962.) The jury found for defendant on this submission. Our conclusion is that Sec. 516.100 does not help plaintiff.

The motion for rehearing is overruled.