text:
    Billie Dale MILAM, Appellant, v. Otis J. MILAM, Appellee.
    No. 7509.
    Court of Civil Appeals of Texas. Amarillo.
    June 21, 1965.
    Rehearing Denied Sept. 7, 1965.
    McCown & Sheehan, Dumas, for appellant.
    Richards & Ferguson, Dalhart, for ap-pellee.
   DENTON, Chief Justice.

Billie Dale Milam brought suit for divorce against her husband, Otis J. Milam, and for custody of their four minor children. The husband by cross-action also sought a divorce and custody of the children. The issues of divorce and custody were presented to a jury. The jury found Mrs. Milam was guilty of excesses and cruel treatment toward Otis J. Milam of such a nature as to render their living together insupportable; that Otis J. Milam was not guilty of such cruel treatment; and that the best interests of each of the named children would be best served by placing them in the custody of their father. The trial court rendered judgment in accordance with these jury findings.

Appellant’s twelve points of error contend the trial court erred in admitting certain testimony of two witnesses; that the trial court erred in questioning one of the witnesses; that the jury findings concerning Mrs. Milam’s cruel treatment toward the defendant and the issue concerning the custody of the minor children were against the great weight and preponderance of the evidence. Appellant further contends its objection to the court’s charge should have been sustained.

We will first concern ourselves with the sufficiency of the evidence to support the jury findings complained of. In considering these points we have examined the entire statement of facts and considered the evidence in accordance with the rules announced in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. The parties had been married some eighteen years at the time of the trial. They were the parents of four minor children: a son who will be eighteen years old in December of 1965, a daughter ten and twin daughters eight at the time of the trial. They separated on June 7, 1964, and appellant filed her petition for divorce and custody of the children shortly thereafter. The trial court awarded Mrs. Milam temporary custody of the children upon the filing of her petition and ordered the defendant below to appear July 8, 1964, to show cause why the custody should not be continued in Mrs. Milam pending trial of the case. After a hearing on that date, the trial court, upon proper motion, ordered the temporary custody of the children be changed to Mr. Milam. He held temporary custody of the children when the case was tried in September of 1964.

Appellee’s cross-action sued appellant for divorce upon the statutory grounds set forth in Article 4629, Paragraph (1), Vernon’s Ann.Civ.St. Of the five specific allegations of cruelty, three allegations concerned Mrs. Milam’s religious activities as a member of the United Pentecostal Church; one allegation asserted she influenced their children against appellee; and alleged harassment by Mrs. Milam by continually threatening to leave him “and deprive him of the custody of their children.” In addition there was a general allegation of cruelty. Appellee’s cross-action does not allege appellant is unfit to have custody of the four children, but simply alleges he is a fit and proper person to have the permanent custody of the children. Although the record is extremely long, appellee’s testimony in support of his cause of action may be summed up in the following question and answer:

“Q. All right, sir, you have told the court and the jury that you and the— or that you and Mrs. Milam began to have serious problems about five years ago and that this was over her religious activity, is that correct ?
“A. It was over the problem leading from her religious activities, yes.”

The time period had reference to the time Mrs. Milam joined the Pentecostal Church. Although appellee admitted he knew very little about the church’s doctrine or beliefs, he did not like for her to go to that church and did not like the people who attended that church. There was no Pentecostal Church in Stratford where the Mi-lams resided, and it was therefore necessary for her to go to either Dalhart or Dumas to attend this church. Both of these towns are approximately thirty miles from Stratford. We think it is a fair summation of appellee’s testimony to say his primary complaint against Mrs. Milam was her frequent trips to Dalhart or Dumas to attend her church services along with the children. She had confined her church activities to the Dumas church for the last two or three years prior to the separation. It appears she and the children attended youth services in the Dumas church on Friday nights and the morning and evening services on Sundays. They would return home after the Friday night services and generally remain in Dumas all day Sunday and return to their home Sunday nights after that service. They usually reached home by ten o’clock or 10:30 p. m. Mr. Milam further testified:

“My complaint is taking the children out of town away from their friends and away from their home. I am not —I wasn’t condemning her for going to church if that is the way you are putting it.”

Appellee contends these absences until late at night left the children tired, disturbed and fatigued. As we view it this is the crux of appellee’s case for both divorce and his obtaining custody of the children. He does not question his wife’s morals nor her general conduct as a housewife or her care and discipline of the children. Her absences from the home with the children while attending church services seems to be the real basis for his complaint. He denies her religious beliefs enter into their problem.

It is well settled that in order to meet the requirements of Article 4632, V.A.C.S., a divorce must be based upon full and satisfactory evidence affirming the material allegations of the petition. Resendez v. Resendez (Tex.Civ.App.), 282 S.W.2d 318; Christen v. Christen (Tex.Civ.App.), 333 S.W.2d 472. It is this court’s duty to pass upon the issue of whether the evidence is full and satisfactory. Christoph v. Sims (Tex.Civ.App.), 234 S.W.2d 901 (Refused, NRE); Robinson v. Robinson (Tex.Civ.App.), 235 S.W.2d 228.

We have carefully read the statement of facts, and it is our view that the evidence as a whole is not that full and satisfactory proof sufficient to establish cruel treatment sufficient to render the fur-ther living together of these parties insupportable. McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459, is a landmark case for the proof necessary to establish cruel treatment in divorce cases. It was not shown Mrs. Milam’s absences from their home to attend church services were deliberate acts to jeopardize the marriage. Her absences were not for a great length of time each week. Obviously her being away could become quite inconvenient and does not lend itself to family harmony, but in our opinion this can not be said to constitute cruel treatment. The fact she stated to appellee “I will not give up my church” goes to show her deep feeling for her church affiliation. In our opinion she should not be censored for such an attitude. Appellee contends this statement indicates her willingness to forsake her family for her church. We do not so construe it. In order to attend the church of her preference she necessarily had to travel some sixty miles round trip. We can conceive of cases where a spouse could become so involved in religious activities that his or her parental and marital responsibilities were neglected to the extent that such conduct would constitute cruel treatment, but such is not the case under this record. This record does not indicate that the conduct of appellant was done wilfully with intent to injure the appellee. Golden v. Golden (Tex.Civ.App.), 238 S.W.2d 619. Mr. Milam was not asked and he did not testify that his wife’s conduct was such as to render their further living together insupportable. We think the evidence falls far short to justify the granting of a divorce to appellee under the requirements of Article 4632, V.A.C.S.

We have reached the same conclusion relative to the sufficiency of the evidence to support the findings relative to the custody of the children. It is very difficult, if not impossible, to distinguish between the testimony offered by appellee in support of his cause of action for a divorce and on the issue of child custody. Welch v. Welch (Tex.Civ.App.), 369 S.W.2d 434, has held a jury verdict in a child custody case is binding- on the court only when supported by the evidence as in any other civil action. Article 4639a, V.A.C.S.; Rule 301, T.R.C.P. As stated, appellee did not allege nor did he attempt to prove appellant was an unfit mother except for her absences from home previously discussed. He did not question her morals or her ability to handle and care for the children. The primary complaint against her both as to his grounds for divorce and as to his fitness to have custody of the children was the fact she absented herself and the children from the home for their religious activities. He contends this was detrimental to the children’s physical and mental welfare. Except for appellee’s own testimony concerning the children, there was very little persuasive testimony from other witnesses offered. The men and women called by appellee were primarily called upon to testify as to the children’s conduct during the two months just prior to the hearing when the children were in appellee’s custody. Not one of these witnesses were derogatory of Mrs. Milam. Mrs. C. W. Moon, a witness called by appellee, testified she could see no difference in the children during the two months period appellee had custody of the children and prior to that time. The only other change the witnesses noted was that the children’s hair had been cut. Several witnesses, including two of the children’s former teachers and the home demonstration agent, called by appellant, supported her contention she is a fit and proper mother to have custody of the children. The parties’ oldest son, Jimmy Dale, also testified quite emphatically in behalf of his mother. He not only stated his preference that the children be awarded to appellant, but made several accusations against ap-pellee. When this testimony is viewed along with the insufficient evidence to support cruel treatment by appellant toward appellee, we are constrained to remand the cause for a retrial of both the issues of divorce and custody of the children.

We do not consider it necessary to discuss and pass upon appellant’s other points of error. It is unlikely the alleged errors of inadmissibility of evidence will occur at another trial. Even so, we are of the opinion these points of error do not present reversible error. We further conclude appellant’s last two points relating to her objections to the court’s charge are without merit.

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MAGIC VALLEY PRODUCE CO. et al., Appellants, v. Jim BALDRIDGE et al., Appellees.
    No. 182.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 26, 1965.

      F. B. Godinez, Pharr, for appellants.
    Sid L. Hardin, Edinburg, for appellees.
   PER CURIAM.

This is a motion to dismiss an appeal, filed by the appellees questioning the jurisdiction of the Court of Civil Appeals. The motion is based essentially upon two grounds. 1) That the appellant failed to file its appeal bond within thirty days after rendition of judgment, (Rule 356(a), Texas Rules of Civil Procedure) and 2) that appellant failed to file its transcript with the clerk of this Court within sixty days from rendition of judgment as prescribed by Rule 386, T.R.C.P.

The written draft of the judgment does not state therein the date the instrument was signed by the trial judge. A determination of this motion therefore rests upon a single issue: Where the date of signing of the judgment is not shown therein, can the date of signing be proved otherwise?

The trial court in considering appellees’ motion for summary judgment on May 19, 1965, notified the attorneys for the respective parties that it was of the opinion that motion for summary judgment of (plaintiffs) appellees was good and should be granted. The written judgment contained only one date, but recited that date at three different places in the written draft. At the very beginning the judgment recited that:

“ * * * on the 19th day of May, A.D. 1965, came on to be heard * *

Then in the center portion the judgment stated:

“ * * * that this summary judgment should be rendered for Plaintiffs *
“Therefore, it is ORDERED, ADJUDGED and DECREED by the Court on this 19th day of May, A.D. 1965, that the Plaintiffs * *

And then just above the trial judge’s signature there appears in the judgment:

“ENTERED this 19th day of May, A.D. 1965.”

We have no doubt that the judgment was rendered on the 19th day of May, 1965. Appellant, in an effort to resist the dismissal of its appeal, offers letters which would indicate that the judgment was signed June 1, 1965. If this were true and the judgment stated that it was signed June 1, 1965, appellant’s appeal bond and transcript would have been timely filed. Rule 306a provides that the date of rendition of a judgment for purposes of computing the critical time table of appeal, shall be deemed to be the date upon which the written draft thereof was signed by the trial judge as stated therein. The only date “stated therein” in the judgment is May 19, 1965. Rule 356(a) required that the appeal bond be filed within thirty days after rendition of judgment. Rule 386, T.R.C.P., required that the transcript be filed within sixty-days from rendition of the judgment. Where the judgment does not recite therein the date that it was signed, then, the critical time limits must be calculated from the date of rendition. Hedley Independent School District v. Doneghy, 358 S.W.2d 724, (Tex.Civ.App.1962) and cases cited therein.

Calculating the time for filing of the transcript, the same was due on July 19, 1965. The transcript and supplemental transcript were received July 28, 1965. On July 30, 1965, appellees filed their motion to dismiss the appeal. The seventy-fifth day (the time upon which a motion for extension of time could have been received and considered by this Court under Rule 386, T.R.C.P.) was August 2, 1965. No application for extension of time was requested by the appellant. A second supplemental transcript was received by the clerk on August 16, 1965.

Appellant, by its answer to the motion to dismiss, by affidavit and by supplemental transcripts, attempts to impeach the recitals in the judgment to the effect that the judgment was actually signed on June 1, 1965, and therefore such date should be considered as the date of rendition and the time from which the various steps of appeal would be calculated. One letter is from the attorney for the appellees dated May 31, 1965, acknowledging receipt on May 27, 1965, of the enclosed summary judgment. The letter stated that:

“We will file this judgment tomorrow, June 1, 1965.”

Another letter from the attorney for ap-pellees, written to the attorney for appellant, was to the effect that the judgment should be approved as to form by the attorney for appellant and returned promptly. The letter goes on to admonish the attorney for appellant to the effect that if the attorney for appellees had not received any word concerning the matter (approving the judgment as to form) then:

“ * * * accordingly, on next Tuesday morning, (June 1) if we have not received a return of the form of judgment with your signature as to form, we will go ahead and have the Court enter the judgment without any signature.”

These letters are not a part of the judgment and cannot be considered.

In computing the time for the filing of the appeal bond and transcript, the date of rendition of the judgment controls. There is no question that this judgment was rendered on May 19, 1965. Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (Tex.Sup.Ct.1953). In the case of Cox v. Payne, 231 S.W.2d 957, the judgment showed that it was signed and rendered January 27, 1950. However, it was apparent that the judgment was actually signed February 17, 1950, as the trial judge signed a certificate stating that the judgment was not signed until a later date. The Amarillo court sustained a motion to dismiss the appeal for want of jurisdiction because the appeal bond was not filed within thirty days after January 27, 1950. In Heard v. Heard, 305 S.W.2d 231, (Tex.Civ.App.1957, writ ref.) the judgment showed that it was rendered on June 13, 1956, but did not show on its face what date it was signed. The Court held that:

“ * * * the date of rendition may not be impeached for purposes of appeal by affidavits or otherwise, or by anything short of the amendment of the judgment itself.”

Appellant here made no attempt to amend the judgment. The matters presented here are jurisdictional. A rendition of the judgment is determinative of the time set by Rules 356(a) and 386, T.R.C.P. The parties to a suit are not authorized to impeach the date shown in the judgment by ex parte statements, whether sworn to or not. Cox v. Payne, supra; Heard v. Heard, supra; see also, Rosenfield v. Hull, Tex.Civ.App., 304 S.W.2d 571 (writ dism.); Polis v. Alford, 267 S.W.2d 918, (Tex.Civ.App.1954); Alamo Casualty Co. v. Trafton, 228 S.W.2d 195 (Tex.Civ.App.1950). We regret that we are unable to consider this case upon its merits hut under the law, we have no alternative except to dismiss the appeal for the reasons herein stated.

Motion to dismiss is granted. Appeal dismissed.


author: WILSON, Justice.

text:
    Marie Grace KING, Appellant, v. Robert E. KING, Appellee.
    No. 4409.
    Court of Civil Appeals of Texas. Waco.
    Aug. 12, 1965.
    Rehearing Denied Sept. 2, 1965.
    James C. Martin, Corpus Christi, for appellant.
    Jack E. A. White, North, Blackmon & White, Corpus Christi, for appellee.
   WILSON, Justice.

Appellant’s points in this divorce action complain of the overruling of her special exceptions to general allegations of cruel treatment in plaintiff’s petition.

Evidence under these general allegations was introduced without objection. The right to complain of the overruling of special exceptions is waived by failure to object to the evidence. Banner Dairies v. Geers, Tex.Civ.App., 292 S.W.2d 169, 171, writ dism.; Tucker v. Northcutt, Tex.Civ.App., 248 S.W.2d 750, 753; Pounds v. Jenkins, Tex.Civ.App., 157 S.W.2d 173, 176; Kauffman v. Parker, Tex.Civ.App., 99 S.W.2d 1074; 3 McDonald, Texas Civil Practice, Sec. 10.14, p. 883; 2 id., Sec. 5.18, p. 515, n. 32; 45 Tex.Jur.2d, Sec. 176, p. 727.

The judgment is affirmed.


author: CHAPMAN, Justice.

text:
    Arlos M. McCLINTOCK, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.
    No. 7477.
    Court of Civil Appeals of Texas. Amarillo.
    June 21, 1965.
    Rehearing Denied Sept. 7, 1965.

      Warren Burnett and Robert D. Pue, Odessa, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, for appellee.
   CHAPMAN, Justice.

This is a workman’s compensation case tried to a jury.

Appellant, Arlos M. McClintock, was the claimant and Travelers Insurance Company the defendant. Claimant was the only witness used in the trial. He pleaded and testified to an injury to himself on October 14, 1963, while an employee of Ogden Sand Blasting and Paint Service in Yoakum County which resulted in total and permanent disability and that if he was suffering from any disease or infection prior to the time he received such accidental injuries, then such injuries received on October 14, 1963, aggravated or incited such prior condition and contributed to his disability. As we understand the record appellant was standing with both feet on the narrow tongue of a sand blasting machine in the process of lifting a bag of sand up over an air compressor tank and up over his head in a position requiring him to twist his body when the alleged injury to his back occurred.

Among the issues submitted was “Special Issue No. 2” inquiring if claimant sustained an injury on or about October 12, 1963. To such question the jury answered “No,” so it was unnecessary for them to answer the questions following. He had been paid weekly compensation for several weeks, which was discontinued when he employed an attorney.

The case is before us upon two points. The first point urges reversible error of the trial court in admitting over timely and proper objections, specific actions of prior misconduct of the claimant not involving offenses upon which he was charged or convicted of felonies, or misdemeanors involving moral turpitude.

The second and only other point asserts error of the court in overruling appellant’s “Objection to argument by counsel for ap-pellee wherein, having earlier abused appellant as a ‘professional claimant’ to which objection had been sustained, he re-opened the abuse and revived the prejudice of the earlier impropriety.”

In our opinion counsel for appellee flagrantly violated well-settled rules that have been pronounced by our Supreme Court for a proper trial of a case of this nature and did so in such manner as to amount to such a denial of appellant’s rights as was reasonably calculated to cause, and probably did cause the rendition of an improper judgment. The trial court permitted some of such conduct without properly instructing the jury not to consider it.

During the voir dire examination of the jury panel a motion in limine was made to the court to instruct appellee’s counsel not to refer to, elude to or mention in any way, form or fashion or question the panel with regard to any specific instance of misconduct unless it involved a felony or a misdemeanor involving moral turpitude; not to mention any prior lawsuits or settlement amounts or offer of settlements without first laying a predicate of contribution, for the reason that claimant had admitted in his deposition each of his prior injuries and not to mention the petition filed in the one lawsuit that had previously been filed for him without first approaching the bench to determine the admissibility for impeachment purposes; not to refer to the fact that claimant had drawn unemployment compensation “at a period more than remote from this time for the reason that the collateral source of benefit have no bearing on any issue in this lawsuit and may not be used by the defendant to mitigate his damages ;” and that the court not allow defendant to refer to the fact that claimant had been married six times.

The court granted the motion with the exception that appellee’s counsel might ask the jury panel if they knew the six women, the court stating: “He has already asked about a bunch of them.” The record shows at that period in the trial he had only asked the panel if they knew Pauline Hotsintillor and Stella Cole. However, there is nothing for us to pass upon concerning the questions by appellant’s counsel with respect to claimant having been married six times. The error was not raised in his motion for new trial nor has any point been brought forward asserting the error. Rule 374, Vernon’s Ann. Texas Rules. There are other numerous errors in the record which we believe require a reversal.

Despite the court’s ruling on the in limine motion, counsel for appellee continued to pursue a course of questions which had absolutely nothing to do with the issues to be resolved by the jury. He even went back approximately thirty-five years to ask about a fistfight appellant had when he was in his teens. He then asked him about a fight in Odessa in 1960 which fails to show any producing cause of the injury testified about and which counsel must have known had nothing to do with the issues that would be submitted to the jury. Counsel magnified these errors by then asking him at Page 109 of the Statement of Facts about a D. W. I. charge that is not shown in the record to be a felony. After proper objections and a statement by the court that, “I don’t believe that has any place in here,” counsel then asked the claimant on Page 111 of the Statement of Facts if he was not confined in jail there in Andrews. His counsel took exception to that line of testimony and the court, after having previously granted the in limine hearing then permitted appellee’s counsel, as shown at Page 112 of the Statement of Facts, to inquire of claimant if he had not pled guilty and paid a fine of $50.00 and been assessed thirty days in jail in 1963. He then asked him again about a knife-fight in 1960, which claimant testified was many years ago rather than 1960, then counsel went right on and asked him again if he had a fist-fight in 1960 in Odessa which the court overruled by simply stating to claimant’s counsel that he could have his bill.

We believe the recent case of Compton v. Jay, Tex., 389 S.W.2d 639, is decisive of the questions here under discussion. There the trial court and Court of Civil Appeals were reversed for permitting the proof of prior felony convictions for driving a motor vehicle while intoxicated. The instant case furnishes much stronger reasons for reversal than Compton v. Jay, supra, because none of the numerous offenses proved against the claimant here constituted a felony of any sort and none of them constituted misdemeanors involving moral turpitude. Even the dissenting opinion there disagreed with the majority only because they held felonies not going to moral turpitude were not admissible for the purpose of impeachment.

There are still other reversible errors in addition to those mentioned above. Numerous injuries from as far back as thirty-five years were admitted in the evidence despite the in limine motion and previously stated ruling thereon. Whether the' minor injuries were received in fist-fights or in the course of appellant’s employment for other companies, many of them could have had nothing to do with the injury for which recovery was sought in the instant case. As an example of the extremes to which counsel was permitted to make such proofs he even proved an automobile wreck in which claimant was involved when sixteen years of age, which he testified resulted only in some bruises. He then was permitted to prove his right foot was broken in 1951 while working for Bob Williamson and the ligamants torn in the same foot in 1963.

Our Supreme Court has also recently held :

“The only reason evidence of other injuries is admissible at all in a compensation case is that it might have some bearing on the question of whether the injury sued on is the producing cause of any incapacity claimed.” Hartford Accident And Indemnity Co. v. McCardell, Tex., 369 S.W.2d 331.

The record, as heretofore stated, does not show such injuries were a producing cause of the injury appellant claimed here.

All these errors were then magnified by counsel arguing to the jury that appellant was a “professional claimant.” Though the court on this occasion instructed the jury not to consider the argument, they surely must have been so prejudiced against him from previous misconduct of counsel that it would have been difficult for them not to consider such argument.

To permit this case to stand would be to invite errors even more grievous, if possible, having nothing whatever to do with the merits of the case.

The judgment of the trial court is reversed and remanded for a new trial.


text:
    Perry Rowan SMITH, Trustee, Appellant, v. PLAINVIEW HOSPITAL AND CLINIC FOUNDATION, a Corporation, Appellee.
    No. 7513.
    Court of Civil Appeals of Texas. Amarillo.
    June 21, 1965.
    Rehearing Denied Sept. 7, 1965.

      Glosserman, Alter, Smith & Rosenheim, San Antonio, for appellant.
    LaFont, Tudor, Tunnell, Formby & Reep, Plainview, for appellee.
   CHAPMAN, Justice.

This is a venue case involving an appeal from a judgment of the trial court overruling a plea of privilege of appellant, Perry Rowan Smith, Trustee, to have the case transferred to Bexar County, where he is domiciled.

Plainview Hospital And Clinic Foundation instituted the action in the District Court of Hale County against the joint executors of the estate of Mrs. Edna Foster Webb, deceased, and Perry Rowan Smith, Trustee, to recover, a money judgment against such executors and the trustee for expenses incurred at said hospital by Mrs. Webb, shortly prior to her death at eighty years of age. The joint executors were Harold Frierson, cashier of the Waggoner National Bank of Vernon, Texas, and A. M. Hyatt, vice-president of the Herring National Bank of Vernon, Texas. Neither of the joint executors have appealed.

The plea of privilege of Perry Rowan Smith was controverted with allegations urging exceptions under the provisions of Subdivisions 6, 4, and 29a of Article 1995, Vernon’s Ann.Tex.Civ.St. The plea of privilege having been overruled, appeal was perfected upon points asserting Subsection B of the Texas Trust Act, Article 7425b-24, V.T.C.S., requires the suit shall be brought against a single trustee in the county where he resides and that the court erred in not holding that it did not have venue under the exceptions to Article 1995 alleged.

Exception 6 of Article 1995 provides:

“If the suit is against an executor, administrator or guardian, as such, to establish a money demand against the estate which he represents, the suit may be brought in the county in which such estate is administered.”

It is without contradiction in the record that this exception was established in the hearing, and appellant by brief so admits.

Appellant contends the suit is one requiring a construction of the liability of the trustee by virtue of the terms of the Trust Indenture itself. We disagree. The property constituting the trust shows by appellant’s own testimony to have been established from community property of Mrs. Edna Foster Webb and her husband, and $10,000 contributed to it by a daughter in Montana, Dr. Atkins, after she learned she was going to die of cancer and wanted to make provision for her mother’s care while she, Dr. Atkins, was still able to do so. The very beginning of the trust and which requires no construction provides:

“This is a Trust Agreement to provide for the maintenance, health and support of Mrs. Edna Foster Webb, presently of Butte, Montana, during her lifetime and upon her death the residue of same shall be paid over, absolutely and in fee simple, as follows :
(a) One-half to Mrs. Mary Webb Dalehite, a feme sole, of San Antonio, Texas.
(b) One-half to Mrs. Norma Dale-hite Smith, wife of Perry Rowan Smith, of San Antonio, Texas.”

Mrs. Mary Webb Dalehite, named as residual beneficiary in the trust, is the daughter of Mrs. Edna Foster Webb, deceased, and Mrs. Norma Dalehite Smith is the daughter of Mrs. Mary Webb Dalehite and the wife of appellant herein.

The trust gives the trustee the authority to designate the place of residence of Mrs. Webb and the evidence shows he agreed to her living in Plainview. He testified he did not pay the bills for which the money judgment is sought because he was not consulted prior to the -time they were incurred, but the record shows that even after she was placed in the hospital the trustee paid some of the nurses’ charges.

It is without contradiction that the charges for which the money judgment is sought were the usual and customary charges for the various medical and hospital services, that they were reasonable and that they were necessary for the maintenance, health and support of the beneficiary of the trust, Mrs. Edna Foster Webb.

The record also shows that the residue of the property constituting the original trust is the only means by which appellee may satisfy its claim for services rendered. The property listed in the inventory and ap-praisement as being the property of Mrs. Edna Foster Webb, deceased, shows to be the same property listed in the trust agreement. It is also without contradiction that the joint executors contended the property following the death of the beneficiary of the trust was in her estate and that appellant claims the trust owns the property.

Appellant admits there is no case directly in point interpreting the provisions of Article 7425b-24 under facts similar to those in the instant case.

Volume 1, Page 389, Section 157, Restatement of the Law of Trust, provides:

“Although a trust is a spendthrift trust or a trust for support, the interest of the beneficiary can be reached in satisfaction of an enforceable claim against the beneficiary.
ÍJÍ ‡ ^
(b) For necessary services rendered to the beneficiary or necessary supplies furnished to him;
(c) For services rendered and materials furnished which preserve or benefit the interests of the beneficiary.”

In a suit against a trust and an employee thereof in a tort action based upon the negligence of the trust employee the Texarkana Court of Civil Appeals held the action did not involve the trust indenture as such, so the Trust Act did not fix venue for such action in the county of the trustee. O. P. Leonard Trust v. Hare, Tex.Civ.App., 305 S.W.2d 833 (writ dismissed).

In City State Bank in Wellington v. National Bank of Commerce of Altus, Oklahoma, Tex.Civ.App., 261 S.W.2d 749 (N.R.E.) the Altus Bank and Albert Scoggin and Frank Brock sued the Wichita National Bank of Wichita Falls, Texas, and the Wellington bank just named for a sum representing the proceeds of a deposit in the Wellington bank by a cattle buyer, J. T. Boyd, for cattle he had purchased from Scoggin and Brock and then sold through the Amarillo Livestock Auction, alleging the deposit by Boyd in the Wellington bank was for the specific purpose of paying two checks theretofore drawn on said bank and given to Scoggin and Brock in payment of 93 head of cattle.

On February 26, before the checks made to Scoggin and Brock reached the Wellington bank Boyd sold 92 head of cattle he had bought from them and deposited two checks he received for them from the Amarillo Livestock Auction. The Wellington bank received the proceeds from the Amarillo checks on February 29, but had theretofore applied all of Boyd’s account to his overdraft The Fort Worth Court of Civil Appeals, after holding from jury findings that the Wellington bank accepted Boyd’s deposits made by him after - instructing the bank they were for the specific purpose of paying the Scoggin and Brock checks, then stated: “ * * * we do not believe that this suit is such an ‘action’ as must be brought in the county of the ‘trustee’s’ residence.” (Footnote ours.)

The action in the instant case was clearly not one to require accounting by the trustee and to surcharge the trustee, and in our opinion is not one requiring such action to be filed in the county of the residence of such trustee within the purview of Article 7425b-24, Subsection B.

Since it is agreed, and without contradiction that venue was established in Hale County as to the joint executors we must determine if appellant is a necessary party under exception 29a of Article 1995.

All property possessed by Mrs. Webb, at the time of the creation of the trust, was placed therein. The character thereof had changed to some extent by the selling of their home in Galveston, for which a vendor’s lien note was made to secure the payment, but for all practical purposes it was the same. The joint executors claimed to have the property in the deceased’s, Edna Foster Webb’s, estate, and the trustee claims to have all the assets of Edna Foster Webb, even though the purpose for its creation ceased with her death. Therefore, a judgment against either one that does not have the assets would avail Plainview Hospital And Clinic Foundation nothing. We must, therefore, conclude that Perry Rowan Smith is a necessary party.

In Amberson v. F. G. Rodgers & Company, Tex.Civ.App., 271 S.W.2d 846 (writ dismissed) the San Antonio Court of Civil Appeals in discussing Section 29a said:

“ * * * where * * * a suit is properly maintainable against one defendant in a county other than the county of his residence, and the plaintiff therein joins another as defendant and seeks to sustain venue as to him under Section 29a, such other defendant is a necessary party within the meaning of Section 29a, if the complete relief to which plaintiff is entitled under the facts of the case as against the defendant properly suable in that county can be obtained only in a suit to which both defendants are parties.”

It is clear in this case that appellee could not obtain complete relief without both appellant and the joint executors of the estate of Edna Foster Webb as defendants. See also Reva Corp. v. Golden Light Coffee & Equipment Co., Tex.Civ.App., 379 S.W.2d 133 (N.W.H.).

Accordingly, the judgment of the trial court is affirmed.

      . “Action” referred to in the quote had reference to the word “actions” used in Subsection B of Article 7425b-24.


author: NORTHCUTT, Justice.

text:
    Henry STEWART, Individually and on Behalf of His Wife, Maybelle Stewart, Appellants, v. F. W. JANES, Appellee.
    No. 7510.
    Court of Civil Appeals of Texas. Amarillo.
    June 21, 1965.
    Rehearing Denied Sept. 7, 1965.
    Splawn & Maner, Lubbock, for appellants.
    Crenshaw, Dupree & Milam, Lubbock, Potter, Gowdy & Kirk, Littlefield, for ap-pellee.
   NORTHCUTT, Justice.

This is a malpractice suit brought by Henry Stewart individually and on behalf of his wife, Maybelle Stewart, against Dr. F. W. Janes for damages allegedly resulting from an operation performed by Dr. Janes on Maybelle Stewart on July 10, 1945, from defendant’s alleged negligence in leaving a gauze pad in the incision. This suit was filed on November 14, 1963. The defendant answered contending the suit was barred by the two-year statute of limitation. The defendant also filed a motion for summary judgment on the basis that the suit was barred by the two-year statute of limitation and that defendant was entitled to judgment as a matter of law. After a hearing was had on said motion the court granted defendant’s motion for summary judgment. From that judgment the plaintiff perfected this appeal.

The parties herein will hereafter be referred to as they were in the trial court. The plaintiff presents this appeal upon two points of error as follows:

“POINT OF ERROR NO. 1
THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN HOLDING THAT THE PLAINTIFF’S CAUSE OF ACTION WAS BARRED BY THE TWO YEAR STATUTE OF LIMITATION WHICH COMMENCED TO RUN ON JULY 10, 1945.
“POINT OF ERROR NO. 2
THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT FOR BY SO DOING THE APPELLANT WAS DENIED THE DUE PROCESS OF LAW AS PROVIDED BY THE CONSTITUTIONS OF TEXAS AND THE UNITED STATES.”

We realize the hardship of this kind of case but settled principles of law cannot be disregarded in order to remove the hardship of special cases. We think the rule of stare decisis requires this court to abide former precedents where the same points arise in litigation. This is necessary in order to have declared and determined the proper rule so that such matters might not be altered or swerved from by a judge having a different view. We must not and cannot determine such matters as here involved according to our own private judgment as to the right or wrong of a rule to follow but must follow the determined rule and law of this state. We are of the opinion, and so hold, that the matters here involved have been determined in this state contrary to the contention of the plaintiff.

It is stated in the case of Carrell v. Denton, 138 Tex. 145, 157 S.W.2d 878, 879 (opinion adopted by S.Ct.) as follows:

“The wrongful act from which the damages sued for resulted, consists of the negligent act of Dr. Carrell in failing to remove the gauze sponge from inside the body of the plaintiff before the incision in his body was closed. The plaintiff’s cause of action for the resulting damages accrued at that time. Houston Water Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36. The statute of limitation began to run at that time and had run its prescribed course, without interruption, before this suit was brought. The plaintiff’s counsel insists that the statute did not begin to run until November 1935, when the plaintiff discovered that the gauze sponge had been left inside his body by Dr. Carrell. The proposition which lies at the bottom of this contention is to the effect that the relation between a surgeon and his patient involves trust and confidence, therefore fraudulent concealment is imputed to Dr. Carrell because of his failure to inform the plaintiff that the gauze sponge had been left inside the plaintiff’s body. The proposition is essentially unsound. In conducting a surgical operation on his patient, and in respect to any treatment he may administer, a surgeon is under the duty to exercise due care. His failure to discharge this duty constitutes negligence and therefore is wrongful — but the failure does not, of itself, constitute fraud or expose the surgeon to the imputation of fraudulent concealment. Among other essential ingredients, a fraudulent concealment in cases of this sort includes, first, actual knowledge of the fact that a wrong has occurred, and, second a fixed purpose to conceal the wrong from the patient. Neither of these ingredients appears from the allegations of the plaintiff’s petition. The trial court did not err in sustaining the special exception in question and in dismissing the suit.”

See also McFarland v. Connally, Tex.Civ.App., 252 S.W.2d 486; Crawford v. Davis, Tex.Civ.App., 148 S.W.2d 905; Wright v. Bida, Tex.Civ.App., 359 S.W.2d 661 and the cases cited in all of the cases here cited. We are of the opinion the above cited cases have definitely determined the points involved herein and overrule the two points here presented.

Judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    UNITED FINANCE & THRIFT CORPORATION OF MESQUITE et al., Appellants, v. James BAIN et ux., Appellees.
    No. 133.
    Court of Civil Appeals of Texas. Tyler.
    July 15, 1965.
    Rehearing Denied Sept. 16, 1965.

      Burt Berry, Irion, Cain, Cocke & Magee, James A. Williams, Bailey & Williams, Dallas, for appellants.
    Edward C. Fritz, Fritz & Vinson, Dallas, for appellees.
   DUNAGAN, Chief Justice.

Appellee, James Bain, instituted suit against the appellant, United Finance & Thrift Corporation of Mesquite and its parent corporation, State Loan & Finance Corporation, for damages allegedly resulting to Bain and his wife, Beverly Bain, from the efforts of the loan company to collect a delinquent obligation owed it by Bain.

Trial was had before a jury, upon Special Issues, and the jury found that United Finance & Thrift Corporation had made “unreasonable collection efforts” upon ap-pellee’s wife; that such collection efforts were a proximate cause of the mental or emotional pain and physical illness to her, and that she was entitled to $3,500.00 as actual damages for such pain and illness. The jury found no unreasonable collection efforts were made on James Bain.

Appellants’ motion for judgment was overruled, and judgment was entered for appellee in the amount of $3,500.00. Appellants duly excepted and gave notice of appeal.

In its first point on appeal, United Finance & Thrift Corporation says that the trial court erred in basing judgment on the finding of “unreasonable collection efforts” whereas the proper test is whether the creditor or its agents intentionally or wantonly inflicted mental stress of such a kind or character as was likely to cause physical harm.

The jury found in answer to Special Issue No. 3 that United Finance, through its agents, servants and employees, made unreasonable collection efforts upon Beverly Bain.

The court defined the phrase “unreasonable collection efforts” as meaning: “ * * * collection efforts, which a person of ordinary prudence, in the exercise of ordinary care, would not have made under the same or similar circumstances.”

In answer to Special Issue No. 5 the jury found that such unreasonable collection efforts were not made with reckless disregard of the health and welfare of Beverly Bain.

In answer to Special Issue No. 7 the jury found that United Finance & Thrift Corporation, through its agents, servants and employees did not act with malice towards Beverly Bain.

Appellants contend that in order for collection efforts to he actionable, it must be found that the creditor or its agents intentionally or wantonly inflicted mental distress of such a kind or character that was likely to cause physical harm.

An identical issue and instructions thereto were under attack in Moore v. Savage, 359 S.W.2d 95, (Tex.Civ.App.) 1962, (writ refused, n. r. e., 362 S.W.2d 298) and substantially the same contentions were made that appellants urge here. The court held:

“ * * * Wilful and malicious conduct are prerequisites to plaintiff’s recovery of exemplary damages, but not to actual damages. Negligent conduct of defendant which results in physical illness and mental or emotional pain, supports an award of actual damages. * * *
“It is our view that to make out a cause of action in ‘unreasonable collection effort’ cases, it is unnecessary to plead or prove wilfulness or maliciousness, and that negligence causing physical illness will support recovery of actual damages. See: Wright v. E-Z Finance Co., Tex.Civ.App. (n. r. e.), 267 S.W.2d 602; Industrial Finance Ser. Co. v. Riley, Tex.Civ.App., 295 S.W.2d 498, affirmed 157 Tex. 306, 302 S.W.2d 652; Allison v. Simmons, Tex.Civ.App. (n. r. e.) 306 S.W.2d 206; Advance Loan Serv. v. Mandik, Tex.Civ.App., 306 S.W.2d 754; Western Guaranty Loan Co. v. Dean, Tex.Civ.App. (n. r. e.), 309 S.W.2d 857.”

The appellants make no complaint that there is no evidence to support the jury findings of unreasonable collection efforts.

The appellants next complain in Point 2 that the court erred in submitting to the jury Special Issue No. 3 for the reason that said issue submitted in a global form an issue of ordinary negligence without separating and inquiring about the several particular elements that allegedly constituted the “unreasonable” collection efforts pleaded by appellee. This very contention was made in the case of Employee Finance Company v. Lathram, 363 S.W.2d 899, (Tex.Civ.App.) 1962, and the court held that the issues on an unreasonable collection effort did not have to be broken down into separate issues as to each of the numerous acts involved. The Supreme Court granted a writ of error on other points, but failed to grant error on the point in the application for writ of error as to global submission. This case was followed in Signature Endorsement Company v. Wilson, in an opinion delivered by the Texarkana Court of Civil Appeals on June 8, 1965, 392 S.W.2d 484.

Appellants contend in its Points 3 and 4: (1) that there is no evidence; (2) that the evidence is insufficient to support the jury finding to Special Issue No. 9 regarding proximate cause of the alleged mental and physical injuries of Beverly Bain. The appellants further contend that the jury’s finding to Special Issue No. 9 that the unreasonable collection efforts of appellants were a proximate cause of the mental and physical injuries of Beverly Bain is against the great weight and preponderance of the evidence.

The appellants next contend in its Points 6 and 7: (1) there is no competent evidence; (2) that the evidence is insufficient to support the finding of the jury in response to Special Issue No. 11 that Beverly Bain had sustained $3,500.00 actual damages for her mental and physical injuries, and such finding is against the great weight and preponderance of the evidence.

There was testimony that United Finance participated in a course of harassment from March 29, 1961, to March, 1963, which particularly featured telephone calls as often as one a dayljand sometime even more oftenJ>*and personal visits as often as once a day (and on some occasions up to three a day), frequently in a harsh and loud voice, including one incident of trespass in which the collector got his foot in the door of the plaintiffs’ home against the instructions of plaintiff’s wife. Some of the calls were as early as 6:00 a. m. and as late as 11:30 p. m. The collectors used such words as hell and damn and called plaintiff a deadbeat. They made insinuations to plaintiff’s wife about plaintiff’s business difficulties and value as a husband. The harassment included calls at the home of plaintiffs’ neighbors. There were also written demands, including a special delivery letter and a teleg -am, threatening to take plaintiffs’ furniture. On occasions when admitted into plaintiffs’ home, the collectors would repeatedly check the furniture- as a reminder to plaintiff and his wife that they were going to take it away if plaintiffs didn’t pay immediately. The United Finance collectors continued these actions even on the day plaintiff and his wife brought their sick baby home from the hospital and even after the plaintiff’s wife explained this to United Finance collectors and asked not to be bothered. The collectors persisted in bothering plaintiff’s wife even though she repeatedly told them they were disturbing the children and she had no money and the husband handled the financial affairs.

The testimony further showed that as this course of harassment developed, Mrs. Bain became emotionally upset and contracted severe splitting headaches which became more and more frequent to the course of harassment until they were daily. She became nauseated and sick at her stomach most of the time to the extent she would vomit after phone calls and visits and began to have fainting spells and blackouts. She became numb all over. She became so sick that she could not do her housework, such as preparing meals and had to stay in bed most of the time.

The record here reflects ample evidence to support the verdict and judgment, and same are not against the great weight and preponderance of the evidence under the rule of In re King’s Estate, 150 Tex. 622, 244 S.W.2d 660.

All of defendants’ points and the contentions thereunder made are overruled and the judgment of the trial court is affirmed.


author: HOUSER, Commissioner.

text:
    Dr. Melvin A. CASSEL, Successor Trustee of Trust A and Trust B under the Will of George B. Fleischman, Deceased, Appellant, v. MERCANTILE TRUST COMPANY, a Corporation, Respondent.
    No. 51120.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.
    Motion to Remand with Leave to File an Amended Petition or to Transfer to Court En Banc Denied Sept. 13, 1965.

      Lewis, Rice, Tucker, Allen & Chubb, Samuel H. Liberman, Eugene J. Gabianelli, St. Louis, for appellant.
    Thompson Mitchell Douglas & Neill, William G. Guerri, W. Stanley Walch, Edwin D. Akers, Jr., St. Louis, for respondent.
   HOUSER, Commissioner.

Action by Dr. Melvin A. Cassel, successor trustee under the will of George B. Fleischman, deceased, against Mercantile Trust Company, a banking corporation, to recover $108,225 allegedly permitted by Mercantile to be withdrawn from the bank account of the estate by Irl B. Rosenblum, plaintiff’s predecessor in trust, and used by Rosenblum for his own personal purposes.

Mercantile filed a motion to dismiss on the ground that the action is barred by limitations [§ 516.120(1), V.A.M.S., or in the alternative, § 516.120(4) or (5), V.A.M.S.] and that the petition fails to state a claim upon which relief can be granted.

The circuit court sustained the motion to dismiss on the theory that the action is barred by limitations [§ 516.120(1)], and dismissed the petition with prejudice. Plaintiff has appealed from the judgment of dismissal.

On this appeal both parties have briefed both points raised in the motion to dismiss. We pass over the point on limitations, preferring to consider first the meritorious, central question in this case: whether the petition states a claim upon which relief can be granted.

Plaintiff’s first amended petition alleges these facts: George B. Fleischman died on August 21, 1950 leaving a will by which he left his estate to Irl B. Rosenblum in trust under two separate trusts, and appointed Rosenblum executor of his will. Rosenblum qualified and acted as executor and trustee until his death on September 26, 1956. On September 25, 1950 Rosen-blum opened a checking account with Mississippi Valley Trust Company, in his name as executor of the estate of decedent. On April 14, 1952 (after Mississippi Valley Trust Company merged with Mercantile Trust Company) Rosenblum presented at the window of the cage of teller No. 60 the following check on a form prescribed by the bank:

St. Louis, Mo. 4/14 1952
Received in Person From My Checking Account at Mercantile Trust Company Saint Louis, Mo.
Nine hundred-Dollars $900-00/100
Not Negotiable
To be used only at this bank and by the depositor personally
Irl B. Rosenblum, Executor
Estate of George B. Fleischman, Deceased

On presentation Mercantile paid Rosen-blum $900 and charged the same to the account of the estate of decedent. Then and for years previously Mercantile and its predecessor was authorized by law to act as executor of estates of deceased persons and had so acted in hundreds of estates administered in the probate courts of the City and County of St. Louis. It maintained a probate division in its trust department composed of officers and personnel cognizant of the duties and responsibilities of executors and the practices and procedures relating to the administration of estates. Mercantile had actual and constructive knowledge of the laws relating to such administration and of these practices and procedures; knew that executors had no right to use estate funds except to pay claims or administration expenses allowed and approved by the probate court or pursuant to distribution, or otherwise by court approval; that an executor is required to file periodic settlements and attach receipts and vouchers evidencing disbursements; that payments of claims, expenses, distributions, etc. are not normally, customarily or usually made in cash but by check. It was alleged that the withdrawal in cash by an executor of the substantial sum of $900 was in and of itself such an abnormal and unusual practice as to arouse in the mind of Mercantile a suspicion that the funds so withdrawn were not to be used for the benefit of the estate but by Rosenblum for his own personal purposes. On April 18, 1952 Rosenblum in the same fashion withdrew $600, which was charged to the account of the decedent’s estate. On April 22, 1952 $900 was in similar manner withdrawn and charged. These monies were not used by Rosenblum for the use and benefit of decedent’s estate but for Rosenblum’s own personal purposes “in violation and breach of trust of the duties imposed upon him.” It was alleged that these withdrawals, more than 18 months after Rosenblum’s appointment as executor, a fact then known to Mercantile, operated to charge Mercantile with notice that Ros-enblum was withdrawing and using funds of decedent’s estate for his own personal use in breach of trust (Paragraph 16). Notwithstanding said notice of said breaches of trust Mercantile continued to pay cash to Rosenblum on checks drawn by him in this same manner and to charge same to decedent’s account, all the checks having been presented to and paid out by the bank’s teller No. 60, as follows:

Commencing on April 11, 1953 Rosen-blum presented checks drawn on Mercantile, signed by him as executor of decedent’s estate, payable to himself, to Mutual Bank & Trust Company in St. Louis, as follows:

Upon presentation of each of these checks bearing Rosenblum’s endorsement as payee Mutual paid the amounts of said checks and transmitted them to Mercantile, which paid over and credited to Mutual’s account the amounts of the checks, and charged them to the account of the estate of decedent.

The proceeds of the checks totaling $47,-500 and of the checks totaling $60,725 were not used by Rosenblum for estate purposes but for his own personal purposes in violation and breach of trust of the duties imposed upon him.

Mercantile’s predecessor was named as substitute trustee and executor in the event of Rosenblum’s death, a fact known to Mercantile prior to the time the foregoing' withdrawals were permitted. In paragraph 23 it was alleged that Mercantile “had notice” of Rosenblum’s breaches of trust “not later than” April 22, 1952. It was further alleged that Mercantile thereafter was obligated to refuse to pay the checks presented to it at its hank and the checks presented to and cashed by Mutual, and that by paying said checks after notice Mercantile “participated in the said breaches of trust and became liable for the amounts which Rosenblum appropriated to his own use in violation and breach of trust.”

On October 13, 1956 plaintiff Cassel was appointed administrator d. b. n. with the will annexed. He qualified and acted as such until finally discharged by order of the probate court. On May 9, 1957 he was appointed successor trustee by court order and has acted as such since that date.

In Lucas v. Central Missouri Trust Co., 350 Mo. 593, 166 S.W.2d 1053, this Court stated three ways in which a bank may incur liability and be compelled to make good deposits that have been misappropriated by a fiduciary: (1) by a violation on its part of the contract, express or implied, between it and the owner of the fund; (2) by appropriating the fund, either with or without the fiduciary’s consent, to the payment of the latter’s debt to the bank; and (3) by assisting the fiduciary to accomplish the misappropriation, the bank having knowledge, actual or constructive, that the fraud is being or is about to be perpetrated by the fiduciary. And see 5A Michie, Banks and Banking § 57 a, e. The reason for the bank’s liability under (3) is that the bank “knowingly makes itself a party to a fraud, and must make good the loss that results from the appropriation.” 166 S.W.2d, 1.c. 1058; 10 Am.Jur.2d Banks §§ 521, et seq. On this appeal we are concerned only with (3), there being no contention that Mercantile violated its contract or appropriated the fund.

In order to state a claim for relief under (3) the pleader must allege, among other things, (a) facts which show that the bank had knowledge of the trust character of the funds on deposit and that the fiduciary unlawfully withdrew and misappropriated trust funds; (b) facts sufficient to overcome the presumption in which the bank is entitled to indulge, namely that in withdrawing trust funds the fiduciary is acting lawfully and in the performance of his duties as a trustee, and that he will appropriate the money, when drawn, to a proper use; (c) facts which show, directly or by necessary inference, that the bank participated in the breach of trust in receiving or permitting the trustee to withdraw the trust funds, by receiving the deposit or permitting the withdrawal with notice of the breach of trust.

The requirement that Mercantile have knowledge of the trust character of the funds on deposit is met by paragraph 9 which alleges that Rosenblum opened a checking account in the name of “Irl B. Rosenblum, Executor Estate of George B. Fleischman, Deceased.” The style and name in which the account was opened and stood charged Mercantile with notice and knowledge of the trust character of the funds in the account. West St. Louis Trust Co. of St. Louis v. Brokaw, 232 Mo.App. 209, 102 S.W.2d 792, 796 [7]; Day v. Old Colony Trust Co., 232 Mass. 207, 122 N.E. 189, 2 A.L.R. 1554; 5A Michie, Banks and Banking § 90, p. 235.

The requirement that the fiduciary unlawfully withdrew and misappropriated trust funds is met by paragraphs 15 and 21, which allege that the proceeds of the checks were not used by Rosenblum for the payment of any debts, claims or lawful charges due from the estate but for his own personal purposes in breach of trust.

In connection with (b), supra, notwithstanding a bank knows or is charged with knowledge of the trust character of funds on deposit, a bank is not necessarily liable if such funds are withdrawn by the fiduciary and misappropriated by him. 10 Am.Jur.2d Banks § 523. The relationship between bank and depositor is that of debtor and creditor, and as to checking accounts the implied contractual obligation assumed by the bank is to honor and pay on presentation the depositor’s checks to the person or persons to whom he orders payment. S. S. Allen Grocery Co. v. Bank of Buchanan County, 192 Mo.App. 476, 182 S.W. 777; New York Title & Mortgage Co. v. First Nat. Bank, 8 Cir., 1931, 51 F.2d 485, 77 A.L.R. 1052, cert. denied 284 U.S. 676, 52 S.Ct. 131, 76 L.Ed. 572; 10 Am.Jur.2d Banks § 523. This rule is fully applicable to checks drawn by a trustee on trust funds held on deposit. Section 362.480, V.A.M.S., provides: “Whenever any deposit shall be made in any bank, banking institution or trust company by any person as trustee, or by any person in trust for another, and no other or further notice of the existence and terms of such trust shall have been given in writing to the bank, banking institution or trust company, the same may be paid upon the check or order of said trustee, bearing his signature and containing the same words in which said deposit was made.” This rule obtains and there is no liability on the bank where the depositor draws the check to his own order, State ex rel. Elberta Peach & Land Co. v. Chicago Bonding & Surety Co., 279 Mo. 535, 215 S.W. 20, and notwithstanding he presents it for deposit in his own personal account, Gate City Bldg. & L. Ass’n v. National Bank of Commerce, 126 Mo. 82, 28 S.W. 633; New Amsterdam Cas. Co. v. National Newark & Essex Banking Co., 117 N.J.Eq. 264, 175 A. 609 [5], aff. 119 N.J.Eq. 540, 182 A. 824, in the absence of knowledge or notice that the funds are being unlawfully withdrawn, it being presumed that the trustee’s use of the funds is proper.

We come then to the key question, whether the petition states facts sufficient to show participation in the breach of trust by Mercantile with notice or knowledge of the breach of trust. There is no allegation or contention that the bank appropriated funds of the estate or received any of the fruits of Rosenblum’s misappropriation, such as obtaining payment of a debt due it by the fiduciary in his individual capacity, or otherwise. Nor is it alleged or contended that Mercantile had notice in the sense that its officers or employees were actually apprised of the fact that Rosenblum was stealing the trust funds from the account and personally pocketing them.

First is appellant’s contention that its allegation in paragraph 23 that Mercantile “had notice of said breaches of trust not later than April 22, 1952” is an allegation of an ultimate fact in issue, in and of itself sufficient to charge notice. Reading the petition as a whole it is plain that this was not intended as an allegation of actual notice but as a general characterization of the constructive notice charged in paragraph 16 by reason of the cash withdrawals of $900, $600 and $900 within a space of 8 days, and that the general allegation of notice in paragraph 23 is limited by the specific allegations in paragraph 16. Hellesen v. Knaus Truck Lines, Inc., Mo.Sup., 370 S.W.2d 341, 344. Specific allegations limit and control general allegations in determining the sufficiency of a petition. Coble v. Economy Forms Corp., Mo.App., 304 S.W.2d 47. The petition, read from its four corners, does not allege that Mercantile knew that Rosenblum was withdrawing and using trust funds for his own personal purposes. The allegation that the three cash withdrawals mentioned operated “to charge the defendant with notice” is a conclusion of law, insufficient to meet the requirement that facts be pleaded. In 41 Am.Jur. Pleading § 24 it is recognized that an allegation “that a person was charged with notice” is a conclusion which adds nothing to a pleading. In Bank of Luverne v. Birmingham Fertilizer Co., 143 Ala. 153, 39 So. 126, an allegation “that said Bank of Luverne was charged with notice of the trust” was held to be a conclusion of law, not a charge of knowledge or an averment of a fact.

Citing Rhodes v. Outcalt, 48 Mo. 367, 370; Golden v. National Utilities Co., 356 Mo. 84, 201 S.W.2d 292, 297, and 39 Am.Jur. Notice and Notices §§ 4, 5 and 6, appellant next contends that actual notice means knowledge of facts and circumstances sufficiently pertinent in character to provide the means and enable reasonably cautious persons to investigate and to ascertain the ultimate fact; that as stated in In re Bohenko’s Estate, 254 App.Div. 140, 4 N.Y.S.2d 420, if a depositary has knowledge of a course of dealing with trust funds by a trustee “of such a character as would lead a person of reasonable prudence and caution to suspect that trust funds then on deposit are about to be misappropriated, a duty is laid upon the depositary to make reasonable inquiry to ascertain the true facts. If it fails to make such inquiry as a means of verifying or dispelling that suspicion, the depositary may be charged with knowledge of facts which reasonable inquiry would have revealed and it may be held responsible for loss resulting from the trustee’s infidelity.”

From the following facts and circumstances alleged in the petition appellant says a jury would have been warranted in finding that Mercantile should have suspected Rosenblum of misappropriation and should have conducted an investigation: The “unusual and abnormal” withdrawals of $900, $600 and $900 in cash on April 14, 18 and 22, 1952; Mercantile’s knowledge arising out of its experience with probate administration and laws that Rosenblum was acting in “an abnormal and unusual manner”; the cash withdrawals in May, 1952, which resulted in an aggregate withdrawal of $7,400 in two months, and the subsequent course of dealing. Appellant argues that the transactions were unusual in nature; that Rosen-blum’s drawing of checks as executor payable to himself personally was a highly suspicious circumstance; that a transaction in which a bank pays cash to the fiduciary out of trust funds on deposit on his presentment of counter checks in' itself indicates that the funds are being used by the fiduciary for his personal use; that the amounts were large in size, and in even or round numbers; that this is not a single isolated occurrence but a series of transactions—a course of dealing—covering a period of 4 years; and that the bank is “bound by any information which it could have obtained had it pursued inquiry as to the use to which said withdrawals were to be put, until the truth had been ascertained.” Appellant cites and quotes from Brede Decorating, Inc. v. Jefferson Bank & Trust Co., Mo.Sup., 345 S.W.2d 156; Massachusetts B. & Ins. Co. v. Standard T. & Sav. Bank, 334 Ill. 494, 166 N.E. 123, and Bischoff v. Yorkville Bank, 218 N.Y. 106, 112 N.E. 759, L.R.A. 1916F 1062, and many other cases, and urges that by investigating public records Mercantile, without embarrassment or undue burden, could have uncovered the whole story of the misappropriations.

A bank is not put on inquiry by the fact standing alone that the fiduciary-depositor makes withdrawals in cash or that he draws checks upon his account as trustee payable to himself personally, Bogert, Trusts and Trustees, 2d Ed., § 907; Restatement of Trusts 2d § 324 g; 5 Zollman, Banks and Banking, Perm. Ed., § 3173, p. 179; 5A Michie Banks and Banking § 90, or deposits such checks in his personal account. McCullam v. Third Nat. Bank, 209 Mo.App. 266, 237 S.W. 1051; Gate City Bldg. & L. Ass’n v. National Bank of Commerce, 126 Mo. 82, 28 S.W. 633; United States F. & G. Co. v. Mississippi Valley Trust Co., Mo.App., 153 S.W.2d 752, 758; 10 Am.Jur.2d Banks § 525, p. 499, fn. 2. “The view generally taken is that the bank is entitled to believe, in the absence of circumstances other than the form of the check, that the fiduciary is paying out trust credit to himself in discharge of an honest debt, as for example, in payment of his commissions, or in reimbursement of ad vances he has made, and if the bank does not actually know that a breach of trust is intended, or does not know of suspicious circumstances outside the form of the checks which make it bad faith not to inquire, the bank is not liable for cashing the check of the trustee. * * * Here again there is an underlying feeling that, where a transaction respecting trust commercial paper is such that it may be honest and fair, the position of the bank as a mere medium for accepting and disposing of credit should not impose upon it the duty of acting as a detective for the benefit of the cestuis. No compensation for such service is in fact included in the return which the bank gets by lending out the sums deposited. Such investigating duties would be so arduous as to slow up commercial processes in a very disadvantageous way.” Bogert, Trusts and Trustees, 2d Ed., § 907, pp. 264-266. As stated in the United States F. & G. Co. case, supra, 153 S.W.2d, 1.c. 758: “Any other rule would place a burden on the bank or trust company for which it receives no remuneration and would so complicate the handling of commercial paper that no bank or trust company could safely transact a banking business with any but individuals in their own right.”

It is a question of good faith. If the circumstances known to the bank, other than the form of the check, are of such a nature that the bank’s action in permitting withdrawals from the account amounts to bad faith on its part, the bank is put on inquiry and is charged with the knowledge of the facts which a reasonably diligent inquiry would have revealed; otherwise, if the bank acts in good faith. That bad faith is the basis of liability in cases of this nature runs like a thread through both-the decisional and statutory law of this state. Section 456.230, V.A.M.S., provides: “No person who shall, in good faith, pay money to a trustee, or other person acting in a fiduciary capacity, authorized to receive the same, shall be responsible for the proper application of such money; nor shall any right or title, derived by him from such trustee or other fiduciary in consideration of such payment, be called in question in consequence of any misapplication by such trustee.” Under the predecessor of this statute the action of a bank in crediting to the individual account of a secretary of a building and loan association a check payable to the association and endorsed by the secretary was upheld, there not having been “a particle of evidence tending to prove that the bank did not act in perfect good faith” in the transaction. Gate City case, supra, 28 S.W. 1.c. 634. That a suit of this nature must have as its basis bad faith or actual knowledge on the part of the bank of the fiduciary’s misappropriation was recognized in the United States F. & G. Co., case, supra, 153 S.W.2d, 1.c. 758, wherein it was said, 1.c. 760: “ * * there is no allegation of bad faith on the part of the Trust Company or of knowledge that the guardian was misappropriating or diverting the trust fund, or that the Trust Company received any benefit from the transaction, and absent such elements the Trust Company is not liable.”

In permitting the withdrawals did Mercantile act in bad faith? Was Mercantile put on inquiry, with knowledge that the withdrawals were of large amounts and usually in round or even numbers of dollars, or considering the number of withdrawals (74), or their frequency (almost every month and as high as ten times in one month), or their duration (over a 4-year period) ?

Appellant adverts to the suspicion which some of these facts are said to have aroused in the “mind” of Mercantile, but mere surmise or suspicion that a misappropriation is intended or about to occur is not sufficient to charge a bank with notice. Bischoff v. Yorkville Bank, 218 N.Y. 106, 112 N.E. 759, 761; Davis v. Pennsylvania Co. for Insurance on Lives, 337 Pa. 456, 12 A.2d 66, 69 [4]. Of course, “[i]n rare cases a person dealing with a trustee may have knowledge of facts, aside from the form of a bank account * * * which, while they do not carry a clear notice of a breach of the trustee’s duties, are so suspicious that the action of the third party in going through with the transaction without inquiry amounts to such a reckless disregard of the rights of the beneficiaries as to amount to bad faith or dishonesty. In these instances the courts treat the third person as having taken part in a breach of trust.” Bogert, Trusts and Trustees, 2d Ed., § 909. The facts and circumstances “may be so cogent that to remain passive amounts to bad faith.” 5A Michie, Banks and Banking, § 57b, p. 155. For instance, if by comparison of the amounts of an executor’s withdrawals with the reasonably-to-be-anticipated needs of administration in the normal discharge of the duties of the office it would at once be apparent to any reasonable person that the withdrawals were excessive and improper, the bank could not close its eyes to the inferences reasonably to be drawn from the actions of the executor and would be charged with knowledge of the misappropriation and participation in the breach of trust. For the bank to be held on this ground, however, it would have to be shown that the bank had knowledge of the size of the estate; of the amount of unpaid claims; of the amounts necessary for the payment of bequests, for payments to ces-tuis under the provisions of the indenture of trust, for the expenses of administration, etc. Without knowledge of the needs, knowledge of the provisions made for unknown needs would be without value in forming a judgment. This precisely is what is lacking here. No facts are alleged demonstrating that Mercantile knew that Rosen-blum’s withdrawals were out of proportion to the financial needs of the estate. Absent such allegations of fact we cannot say as a matter of law that Rosenblum’s withdrawal of $108,225 over a 4-year period was such a shockingly large amount as to proclaim fraud or that on the basis of the facts alleged in the petition a jury could reasonably find that the circumstances were so suspicious that in permitting the withdrawals without inquiry Mercantile was so recklessly indifferent to the rights of the beneficiaries of the estate as to be guilty of bad faith or dishonesty. No bad faith was found in Davis v. Pennsylvania Co. for Ins. on Lives, 337 Pa. 456, 12 A.2d 66, where $18,400 was transferred from a trust to an individual account in 18 transactions over a 2-year period, the court commenting that the bank presumably knew nothing about the assets of the trust, or what other bank accounts the trustee might be maintaining, or what proportion of the entire estate was represented by the $18,400 transferred. In Rodgers v. Bankers’ Nat. Bank, 179 Minn. 197, 229 N.W. 90, in a similar situation the court, citing six cases, held that the number of the checks (19 transactions) “is not important.” 229 N.W., 1.c. 94 [4]. In New Amsterdam Cas. Co. v. National Newark & Essex Banking Co., 117 N.J. Eq. 264, 175 A. 609, bad faith was not found by the size of the checks, 1.c. 618: “No ground is perceived upon which to except from the principles of the common law, * * * a fiduciary’s check because of the largeness of the amount, and no adjudication has been brought to our attention indicating that it is a badge of fraud.”

The fact that the withdrawals were in even, round, amounts is not sufficient to charge Mercantile with dishonesty in not investigating. American Surety Co. of New York v. Waggoner Nat. Bank, 5 Cir., 83 F.2d 99, 102 [8]. The number and frequency of the checks, in principle, is immaterial. In McCullam v. Third Nat. Bank, 209 Mo.App. 266, 237 S.W. 1051, 92 checks were involved, but the court held that under all the facts in that case the referee was justified in holding that the bank had neither actual nor constructive knowledge of a conversion or misappropriation of the funds by the company president. In Town of Eastchester v. Mt. Vernon Trust Co., 173 App.Div. 482, 159 N.Y.S. 289, 295, the court said: “Nor did the multiplicity of checks bring into view vicious intention on the part of the depositor, of which the depositary should have taken notice. In principle it is immaterial whether one or many checks were drawn to the depositor’s order. The form was proper, whether it was used for one or all. When would the notice begin to take effect, if at all? After 10, or 20, or what larger number of checks, had been drawn? A form of check appropriate and strictly conforming to the contract does not by repeated use take a sinister appearance. * * * ” In National Nu Grape Co. v. Citizens & Southern Nat. Bank, 94 Ga.App. 5, 93 S.E.2d 381, 254 checks totaling over $233,000 were misappropriated over a 414-year period.

Mercantile’s experience and knowledge in the field of trust and probate administration, however extensive, would be no substitute for the facts upon which to base a judgment as to misappropriation, and would not be sufficient to charge it with notice.

We have read the cases cited by appellant and find them either distinguishable on the facts or supporting the minority rule, which we do not recognize. •

It follows that the petition does not state a claim upon which relief can be granted. In this situation it is immaterial whether it was timely filed, and we do not express ourselves on the limitations question.

Judgment affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . New Amsterdam Cas. Co. v. Robertson, 129 Ore. 663, 278 P. 963, 64 A.L.R. 1396; Bischoff v. Yorkville Bank, 218 N.Y. 106, 112 N.E. 759, 761, L.R.A.1916F., 1059; 9 C.J.S. Banks and Banking § 342 a., p. 687; § 338; 10 Am.Jur.2d Banks § 523, citing 22 federal and state decisions, including Gate City Bldg. & L. Ass’n v. National Bank of Commerce, 126 Mo. 82, 28 S.W. 633. The reason for this rule is that it is not the business of the bank in this situation to supervise the administration of the trust; that to impose upon the bank that duty—to require the bank to ascertain at its peril the background and T>ona fides of every transaction involving a fiduciary depositor dealing with trust funds—-would unreasonably burden banks and seriously interfere with banking transactions. United States F. & G. Co. v. Mississippi Valley Trust Co., Mo.App., 153 S.W.2d 752, 758; Brookhouse v. Union Pub. Co., 73 N.H. 368, 62 A. 219, 2 L.R.A.,N.S., 993; City of San Antonio v. Burke, Tex.Civ.App., 65 S.W.2d 408.

      . Griffin v. National Bank of Commerce, Mo.Sup., 246 S.W. 180; Restatement of Trusts 2d § 324, comment f; 10 Am.Jur.2d Banks § 524; 9 C.J.S. Banks and Banking §§ 338, 353 e., p. 708, fn. 70; 5a Michie, Banks and Banking §§ 57d, 90.

      . Section 456.290, V.A.M.S., provides: “If a deposit is made in a bank to the credit of a fiduciary as such, the bank is authorized to pay the amount of the deposit or any part thereof upon the check of the fiduciary, signed with the name in which such deposit is entered, without being liable to the principal, unless the bank pays the check with actual knowledge that the fiduciary is committing a breach of his obligation as fiduciary in drawing the check or with knowledge of such facts that its action in paying the check amounts to bad faith. * * * ” Since this section was enacted in 1959, after the cashing of the last of Rosen-blum’s checks, it is not controlling in this case. Section 456.240, subd. 2., V.A.M.S., declares that a thing is done “in good faith” within the meaning of the Uniform Fiduciaries Law (of which § 456.-290 is a part) when it is in fact done honestly, whether it be done negligently or not. Although not controlling, these sections are of significance. They reflect and constitute a codification of the common law. In this connection see New Amsterdam Cas. Co. v. National Newark & Essex Banking Co., 117 N.J.Eq. 264, 175 A. 609, 613, aff. 119 N.J.Eq. 540, 182 A. 824.


text:
    Dr. Melvin A. CASSEL, Successor Trustee of Trust A and Trust B under the Will of George B. Fleischman, Deceased, Appellant, v. SECURITY TRUST CO., a Corporation, Respondent.
    No. 51114.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.
    Motion to Remand with Leave to File Amended Petition or to Transfer to Court En Banc Denied Sept. 13, 1965.
    Lewis, Rice, Tucker, Allen & Chubb, Samuel H. Liberman, Eugene Gabianelli, St. Louis, for appellant.
    Armstrong, Teasdale, Roos, Kramer & Vaughan, Edwin S. Baldwin, Bruce E. Woodruff, St. Louis, for respondent.
   HOUSER, Commissioner.

Action by Dr. Melvin A. Cassel, successor trustee under the will of George B. Fleischman, deceased, against Security Trust Company, a banking corporation, to recover $85,955.

Security filed a motion to dismiss on the ground that the action is barred by limitations [§ 516.120(1), V.A.M.S., or in the alternative, § 516.120(4) or (5), V.A.M.S.] and that the petition fails to state a claim upon which relief can be granted.

The circuit court sustained the motion to dismiss on the theory that the action is barred by limitations [§ 516.120(1)], and dismissed the petition with prejudice. Plaintiff has appealed from the judgment of dismissal.

On this appeal both parties have briefed both points raised in the motion to dismiss. We pass over the point on limitations, preferring to consider first the meritorious, central question in this case: whether the petition states a claim upon which relief can be granted.

Plaintiff’s first amended petition contained the same allegations of fact made in the first amended petition in plaintiff’s action against Mercantile Trust Co., Mo.Sup., 393 S.W.2d 433, decided concurrently herewith, to which reference is made, with these additions:

An allegation that Security Trust Company resulted from a merger of Mutual Bank & Trust Company (referred to in the suit against Mercantile) and Security National Bank Savings & Trust Company, effective May 29, 1958, in which merger Security became liable for the debts and obligations of Mutual.

Allegations that at the time Rosenblum presented to Mutual the first of the checks drawn on Mercantile totaling $60,725 Mutual knew that partial distribution had been made in the Fleischman estate “for in March 1952 Rosenblum as Trustee under Trust A and as Trustee under Trust B had opened accounts with Mutual Bank with initial deposits of Forty Thousand Dollars ($40,000.00) in the Trust A account and Sixty Thousand Dollars ($60,000.00) in the Trust B account”; that at that time Mutual knew of the provisions contained in Fleischman’s will, and knew that it was not in the usual and customary practice of probate courts to authorize substantial partial distributions of the assets of an estate until all claims against the estate had been paid, and “knew that on April 11, 1953 and for many years prior thereto Rosenblum individually was heavily indebted to it.”

Allegations that on receipt of the check for $2,000 (the first of the items totaling $60,725) Mutual issued its cashier’s check payable to Irl B. Rosenblum in that sum and that on receipt of the other checks referred to in that list paid the amount thereof to Rosenblum in cash; that the presentation and the request on April 11, 1953 was such an unusual, irregular and abnormal practice as to arouse on the part of Mutual, in the light of its knowledge and experience, the suspicion that Rosenblum intended to misappropriate the proceeds of the check; that Mutual should have either refused to cash the check or made appropriate inquiry, and the presentation of two additional checks in the same amount on April 14 and 16, 1953 made it mandatory to make appropriate inquiry before cashing said checks.

Allegations that Mutual “had notice on April 11, 1953, prior to its issuing its cashier’s check to Rosenblum individually in exchange for a check drawn by Rosenblum as Executor payable to himself individually, that Rosenblum intended to misappropriate the same, and that in the alternative Mutual had notice of the intended misappropriations not later than April 16, 1953, at which time it had cashed three such checks, each in the amount of $2,000.

An allegation that commencing August 3, 1953, and ending November 12, 1954, Rosenblum presented checks drawn on Mutual payable to cash, signed by him “Irl B. Rosenblum Trustee U/W of G. B. Fleisch-man, Trust B,” totaling $25,040, as follows:

Allegations that on May 5, 1955 and October 24, 1955 Rosenblum presented to Mutual checks payable to cash for $150 and $40, respectively, signed by him as trustee of Trust A under the Fleischman will; that Mutual paid these aforesaid checks in cash and charged the trust account therewith, with actual knowledge of the terms of the trust instrument; actual knowledge that the beneficiary of the trust estate entitled to receive the income therefrom was Bertha Fleischman, and that under Trust A and Trust B the trustee could not lawfully use the trust funds except to pay beneficiaries, expenses of administration and commissions of the trustee or for the making of investment on behalf of the trust estate; actual knowledge that payments to the beneficiary Bertha Fleischman were not made in cash, but by check, that payments of commissions were made to Rosenblum by check only at regular intervals and in odd amounts, and that expenses of administration and investments which were proper were not ordinarily, normally or customarily made by payment in cash, but by check; that on August 3, 1953, when it cashed the first check on the Trust B account, Mutual had actual knowledge that in the 3 months preceding Rosenblum had withdrawn from the executor account checks payable to himself in the aggregate sum of $21,500 but nevertheless from August 3-17, 1953 Mutual paid Rosenblum on 4 separate checks payable to cash the sum of $4,950, and when a fifth check was presented on March 2, 1954 Mutual had actual knowledge that Rosenblum had withdrawn from the executor account on checks payable to himself the additional sum of $14,950 but nevertheless paid him in cash in March, 1954 on 9 separate checks the sum of $16,500 and in April on 2 separate checks the sum of $3,300; that on May 5, 1955 when it paid Rosenblum $150 on the check above referred to it had actual knowledge that from April 11, 1953 to that date Rosenblum had drawn on the executor account, on checks payable to himself, the sum of $54,100 and on the Trust B account on checks payable to cash the sum of $25,040.

Mutual’s (and therefore Security’s) liability for amounts it permitted Rosenblum to withdraw from the two accounts in which Mutual was the depository is governed by the same considerations held decisive in Cassel v. Mercantile Trust Company, supra. The following additional facts alleged in the petition against Security do not change the result: that Rosenblum had opened accounts with Mutual as trustee with initial deposits of $40,000 and $60,000, respectively; that Mutual knew of the provisions contained in the will and had actual knowledge of the terms of the trust instrument; knew that the beneficiary of the trusts was Bertha Fleischman; knew that it was not customary to make large partial distributions of the assets of estates until all claims against the estate had been paid, and that Rosenblum was individually and for many years had been heavily indebted to Mutual. While these allegations were pertinent they are lacking in particularity and when the pleading is read in its totality it fails as a matter of law to project a set of facts and circumstances so suspicious as to permit a finding that Mutual’s action in cashing the checks, etc. for Rosenblum without inquiry was done in such reckless disregard of the rights of the beneficiaries of the estate and trusts as to amount to bad faith or dishonesty on the part of the bank. It does not allege facts showing Mutual’s knowledge that Rosenblum’s withdrawals were out of proportion to the needs of the estate or trusts; does not state the provisions of the will and trust which might show the sums required to pay the amounts due the beneficiary under the trust or the beneficiaries of the estate; does not state that in fact all claims against the estate had been paid; does not show what investments were made on behalf of the trust estate, or that none were made, or that Rosenblum was delinquent in payments due on his indebtedness, or that Rosenblum had a bad record or bore a bad reputation as a debtor or fiduciary.

Security’s liability for issuing to Rosenblum the certificate of deposit for $2,000 and for cashing checks totaling $59, 725 presented by Rosenblum, drawn on Mercantile by Rosenblum as executor, payable to himself individually and endorsed by him, while resting upon a different factual basis, presents no essential difference in principle simply because Security was the transmitting bank, and not the depository. In either event a bank privy to and participating in a breach of trust by a fiduciary with knowledge, actual or constructive, of his intention to misappropriate, would be bound to make good the amounts the bank disbursed to the erring fiduciary. Finding no Missouri case involving the liability of the transmitting bank, appellant relies on Bischoff v. Yorkville Bank, 218 N.Y. 106, 112 N.E. 759. The facts in that ease are different and distinguishable, for there the transmitting bank received the trust funds in payment of the fiduciary’s personal obligation to the bank, thereby acquiring an advantage or benefit directly through the diversion of the funds, a factor notably absent here. We do not, however, dispute general statements in that opinion indicating that a bank is liable which joins in a diversion in which it is not interested, with actual notice (or where circumstances reasonably support the sole inference) that a misappropriation is intended. Appellant’s difficulty is that his petition simply does not state facts which invoke these rules.

For the reasons stated in Cassel v. Mercantile Trust Company plaintiff has not alleged facts putting Security on inquiry, or showing that Security’s actions without inquiry amount to such a reckless disregard of the rights of the beneficiaries of the estate and trusts as to amount to bad faith or dishonesty, either as to the $25,040 or the $60,725.

We reserve on the limitations question for the same reason indicated in the Mercantile opinion.

Judgment affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.