dissenting.
I respectfully dissent.
It seems to me that the majority opinion reaches a bad result. The opinion says that the court,1 defendant’s principal, owned the money after plaintiff handed it to defendant, and not the plaintiff, and that plaintiff therefore had no cause of action against defendant when she diverted the money to her own purposes.
The following imaginary situation would be an exact parallel to the present case:
I take $1,000 in cash into the bank and hand it to the teller, with instructions to apply it on and pay off my promissory note owing to the bank. I leave the bank without the note or a receipt, directing the teller to mail them to me. The teller, without giving credit on my promissory note and without making any other record of its receipt, places the cash in her purse. When she leaves the bank that evening she never returns to work. My $1,000 she uses for her own purposes. The bank demands payment of my promissory note. I refuse to pay, pleading payment. My defense of payment is ultimately established and I am vindicated, but only after lengthy and expensive litigation and after damage to my credit and reputation.
According to the majority opinion, I would have no cause of action against the defalcating bank teller. The injustice of this result will be obvious to anyone.
Defendant’s agency does not enter into this case at all.2 She was a person — regardless whose agent she was, if anyone’s —who herself, as her own agent, took plaintiff’s money to be applied to a particular purpose; who assumed a duty to plaintiff to apply the money in accordance with plaintiff’s instructions; and who wrongfully and intentionally diverted the money to her own personal use, as a direct consequence of which the plaintiff suffered damage. This set of facts falls squarely and neatly into that principle recognized in many Missouri cases, that where the plaintiff delivers funds to the defendant for a *291specific purpose and the defendant diverts them to another and different purpose of the defendant, the defendant is liable to the plaintiff for conversion. Knight v. M.H. Siegfried Real Estate, Inc., 647 S.W.2d 811, 816 (Mo.App.1982); Dillard v. Payne, 615 S.W.2d 53, 55 (Mo. banc 1981); Scott v. Twin City State Bank, 537 S.W.2d 641, 645 (Mo.App.1976); Franta v. Hodge, 302 S.W.2d 291 (Mo.App.1957).
Where this rule has been applied, it has been applied without any technical analysis of whether the diverted funds were the property of plaintiff at the time of the diversion. Judge Dixon calls the rule which allows recovery in conversion a “narrow exception” to the traditional trover and conversion analysis, Knight v. M.H. Siegfried Real Estate, Inc., supra, 647 S.W.2d at 816. It probably should not be called “conversion” at all; it is a different tort. This is one of those cases where a label obfuscates the real elements of the case.
Under the “whose property was it?” analysis, the plaintiff would have lost in Young v. Mercantile Trust Company National Association, 552 S.W.2d 247 (Mo.App.1977), and the same case on a second appeal at 598 S.W.2d 482 (Mo.App.1980). There the bank had wrongfully charged plaintiffs savings account, as a result of which defendant suffered certain consequential damages. The bank was held liable in conversion. Of course the bank was a debtor to plaintiff for the amount in her account, and plaintiff was a creditor of the bank. The bank did not convert any property belonging to plaintiff. It simply denied owing plaintiff as much as it actually did owe to her. And nonetheless the bank was held to be liable to the plaintiff in the tort of conversion.
I have not overlooked the fact that the majority opinion literally says that plaintiff has no cause of action for conversion, leaving open the possibility that on the evidence she had a cause of action on some other theory. Nobody suggests another theory, however — neither plaintiff, nor defendant, nor court. If plaintiff has pleaded and proved some unnamed claim for relief under this evidence, she should not be turned out because in her petition she has used the word “converted” to describe what the defendant did with the money. The outcome of a case should not hang on the accidental use of the word “converted” instead of some such word as “misappropriated” or “diverted”.
I would affirm.
. For the sake of simplicity I will refer to the Associate Circuit Court as “the court” and will treat it as a legal entity.
. If this were a contest between the court and the plaintiff, and the issue was whether the checks had been paid, then the fact that defendant was the court’s agent would probably be determinative. Payment to defendant, as between plaintiff and the court, would be payment to the court. That would be analagous to the situation in the case cited in the majority opinion, Cooper v. Commonwealth Trust Co., 142 Mo.App. 610, 122 S.W. 791 (1909). But this case is not between the court and the plaintiff; it is between the plaintiff and the person who misappropriated the money.