author: WASSERSTROM, Judge.

text:
    Shirley HELTON et al., Respondents, v. Ben HAKE et al., Appellants.
    Nos. KCD 28896, KCD 28897.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    Motion for Rehearing and/or Transfer Denied April 3, 1978.
    Application to Transfer Denied May 9,1978.

      Barry J. Levine, Lewis E. Mallott, St. Louis, for appellants.
    Henry P. Andrae, Jefferson City, for respondents.
    Before SHANGLER, P. J., WASSER-STROM, J., and MASON, Special Judge.
   WASSERSTROM, Judge.

Suit for wrongful death of Norman Hel-ton brought by his widow and children against International Association of Bridge, Structural and Ornamental Iron Workers, A.F. of L.-C.I.O., Local No. 396 and the Union steward Ben Hake. From a judgment on a jury verdict for plaintiffs, both sides appeal. We affirm.

On September 11,1973, Helton was working as an iron worker for Maggi Construction Company in the construction of a metal building in Salem, Missouri. A high tension power line ran along side the building under construction and came within 7½ feet of the point where Helton was working.

The work in progress at the time of Hel-ton’s death consisted of the attachment of angle irons to the building. The angle irons were about 20 feet long and were raised hand over hand for positioning onto a channel girder. Helton was working directly with Perry McCormack bolting up the angle iron to the girders. No one actually witnessed how Helton came to fall from the building, but a loud crack of electricity was heard, and immediately thereafter Helton was seen falling in the air from the place where he had been working. Apparently an angle iron which he was handling came into contact with the power line, causing his electrocution. He was taken to a hospital, but never regained consciousness. His death was diagnosed by the attending doctors as cardiac arrest caused by electric shock.

Mrs. Helton testified that Helton had told her the morning of his death that he had asked for the power in the high tension line to be turned off and that he was going to ask again. A co-worker further testified that preceding the accident Helton talked about the power line being close to the place of work and that the line should be covered; this statement took place in the presence and hearing of a number of the crew, of whom Hake was one and of whom the foreman Loethen was another.

At the time of the fatal accident, the Union had a collective bargaining agreement in effect which had been signed on behalf of Associated General Contractors of St. Louis, Erectors and Riggers Association, and Site Improvement Association. Article 7 of that Agreement is entitled “Working Rules” and contains as a sub-part “Safety Provisions.” Part of that subdivision provides:

“Section 7.28 Power Lines, High Tension : There shall be no work done in the immediate area of high tension lines until the power has been shut off, or the lines insulated, or the safety of the members of bargaining unit otherwise provided for.”

Section 7.20 of that same article provides that the Union steward “shall see that the provisions of these working rules are complied with and report to the Union the true conditions and facts. He shall report the injury of any employees to the proper officers of the Union.” This same section goes on to provide “that the Employer is in no way responsible for the performance of these functions by the steward.”

Plaintiffs premise their law suit on the theory that the provisions of the collective bargaining agreement quoted created a duty on the Union steward Hake and through him upon the Union to safeguard the employees, including Helton, from the power line adjacent to the work place and that their failure to perform that duty constituted a tort for which recovery can be had under the wrongful death statute. The verdict directing instructions adopted that theory and instructed the jury to find for the plaintiff if (among other things) Maggi and the Union were operating under the terms and conditions of the collective bargaining agreement, if Hake had a duty to enforce and failed to enforce the provision of Section 7.28 of the contract, and if Hake was thereby negligent. The trial court, although requested to do so by plaintiffs, refused to submit to the jury any issue relating to assessment of punitive damages against defendants in connection with damage to Helton’s gloves and boots.

For their points on appeal, defendants assert: 1) that there was no proof that there was any agreement in force with respect to the Maggi construction project; 2) that the Union’s obligation was limited to that of “fair representation” and that it was not liable to Helton nor is it liable to his survivors for mere negligence; 3) that Helton was guilty of contributory negligence; 4) that plaintiffs did not comply with the requirements for a class action as provided by statute and court rule; and 5) that the trial court improperly limited the testimony of Hake. Plaintiffs for their part assign as error the refusal of the trial court to submit the issue of punitive damages.

I.

Under the court’s instructions, in order to find for plaintiffs, the jury had to find that Maggi and the Union were operating under the terms and conditions of the agreement in evidence and which has been quoted above. That agreement by its terms was entered into with the Union on behalf of three employer associations. According to the evidence, Maggi was not a member of any of those three associations nor had it signed individually, nor was there any evidence that it had expressly agreed to be bound by that contract. Because of this state of proof, defendants insist that plaintiffs failed to prove an essential element of their case and a verdict should have been directed for defendants.

There was however substantial evidence from which it could be reasonably inferred that Maggi and the Union had agreed at least by implication to operate under the terms of the collective bargaining agreement. Thus the evidence shows that the Maggi foreman employed all of the workmen on this job, including Helton, through the Union field steward, Leon Henderson. The testimony was that Maggi could not hire any workmen “without the union’s O.K.”

Still further, the Union did appoint Hake steward on the job in compliance with the provisions of Section 7.20 of the contract. Hake in his testimony acknowledged that as steward he had the job of enforcing the working rules as set forth in the contract. Hake answered affirmatively to the proposition that these provisions constituted “the working rules by which you ply your trade” and that the contract was his “Bible.” Worthy of special note is the fact that in recognition of his duties under the contract, Hake filed a Steward’s Weekly Report, reporting on the accident which had resulted in Helton’s death, showing that five workmen, all members of the Union in good standing, were on the job and that Helton had suffered death from electrocution on September 11, 1973.

Moreover and conclusive against defendants on this point, they have pleaded and affirmatively relied upon as a defense a collective bargaining contract covering the Maggi job. Thus the second affirmative defense of their answer alleges that “[defendant Iron Workers Local 396 is limited by the provisions of the collective bargaining agreement, referred to in Plaintiffs’ Petition * * *and their third affirmative defense alleges that “[defendant Iron Workers Local 396 is not liable to Plaintiffs for the death of decedent by reason of its alleged negligence, if any there be, in enforcing its collective bargaining agreement with the employer of decedent * * *Where, as here, a defendant pleads a fact, it may not mount an argument directly contrary thereto. Hall v. Brookshire, 364 Mo. 774, 267 S.W.2d 627, 630[4] (banc 1954); 31 C.J.S. Estoppel Sec. 117 b., p. 623, and Sec. 118 b., p. 631.

II.

In denying that they can be liable to plaintiffs in tort, defendants make a twofold argument. They say: A. That “Plaintiffs may not bring a tort action against Defendants for violation of the collective bargaining agreement;” and B. That even if state law permits such a tort action, application of that state law would subvert the national labor policy under which a union’s liability is limited to providing fair representation as collective bargaining agent.

A.

Contrary to defendants’ contention, the Missouri cases hold that liability in negligence may grow out of the breach of a duty imposed by a contract. Helm v. Inter-Insurance Exchange, 354 Mo. 935, 192 S.W.2d 417 (banc 1946); Braun v. Riel, 40 S.W.2d 621 (Mo.1931); Ellyson v. Missouri Light & Power Co., 59 S.W.2d 714 (Mo.App.1933); Peitzman v. City of Illmo, 141 F.2d 956 (8th Cir. 1944); Aetna Insurance Co. v. Hellmuth, Obata & Kassabaum, Inc., 392 F.2d 472 (8th Cir. 1968). So it was said in the Braun case, supra, at l.c. 623:

“It is well settled that, while a ‘tort’ is a wrong done independent of contract, there are torts committed in the nonobservance of contract duties. And if a tort arising out of nonobservance of such duties results in a death, a surviving person entitled to sue may avail himself of the Wrongful Death Statute.”

This point has been reviewed in this very case by Judge Hunter in Helton v. Hake, 386 F.Supp. 1027 (D.C.Mo.1974). After the filing of this suit in the circuit court, defendants filed a petition for removal to the United States District Court alleging federal jurisdiction under Section 301 of the Labor Management Relations Act, 29 U.S. C.A. Sec. 185(a). That section authorizes suits in the federal District Court for violation of a collective bargaining agreement without respect to the amount in controversy or the citizenship of the parties. Defendants’ theory on the removal proceeding, as it is here, was that plaintiffs’ cause of action arose out of and was for the purpose of enforcing the safety provisions of the collective bargaining agreement. Plaintiffs filed a motion to remand, denying that their cause of action was on the contract and insisting instead that their cause of action was in tort. Judge Hunter (a former member of this court) ruled in favor of the plaintiffs and remanded the case to the state circuit court, stating in part as follows at l.c. 1031:

“In the instant case, taking the allegations contained in the complaint as true, the contract did impose upon the defendant union an affirmative duty to enforce safety rules. The complaint alleges that the union, through its agent, the steward, negligently and carelessly failed to enforce the safety rule relating to work in the area of high tension power lines. The suit is clearly brought as an action in tort seeking recovery for wrongful death due to the alleged negligence of the defendants. The only relevance of the collective bargaining agreement appears to be that it would determine, to some extent at least, the nature and scope of defendants’ duty. That defendants’ duty may have arisen under a contract does not in and of itself change the basic nature of this action, which is a suit in tort to recover damages for injuries sustained due to defendants’ alleged negligence. Compare Aetna Ins. Co. v. Hellmuth, Obata & Kassabaum, Inc., 392 F.2d 472 (8th Cir. 1968).”

Judge Hunter, thoroughly conversant as a lawyer and judge with Missouri law, has held that the facts of this case confer upon plaintiffs a cause of action for negligence. We concur and adopt that opinion.

B.

The discussion now comes to defendants’ principal argument and what is by all odds the most substantial point in this case. Defendants argue that even if plaintiffs have a cause of action for negligence under Missouri law, such state law may not be applied because of alleged conflict with an overriding federal labor law policy to the contrary.

As defendants correctly say, the extent to which federal labor law takes hold and preempts state law was formulated and is still expressed by Amalgamated Association of Street, Electric Railway and Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971). In that case, the plaintiff employee had been discharged at the instance of his union because of his failure to pay dues to the union on time. The plaintiff alleged that the discharge violated the union rules and the provisions of the collective bargaining contract, and he brought suit against the union for damages in the state court. The United States Supreme Court held that state court jurisdiction had been preempted by the National Labor Relations Act saying in this respect that: “When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by Section 7 of the National Labor Relations Act, or constitute an unfair labor practice under Section 8, due regard for the federal enactment requires that state jurisdiction must yield.”

The plaintiff employee then sought an exemption from that preemption rule under the principle that Section 301 deliberately chose to give federal and state courts concurrent jurisdiction over violation of collective bargaining contracts, unaffected by the general jurisdiction of the National Labor Relations Board over labor matters. Answering that contention, the Supreme Court stated that in order to come under the Section 301 exception, there must be some arbitrary or bad faith conduct by the Union in breach of its duty of fair representation.

Defendants’ effort to bring themselves within the Lockridge principle fails for the reason that this case need not and does not depend upon Section 301 in order to escape federal preemption. The failure of the Union steward Hake to enforce the safety provisions of the collective bargaining contract is in no way protected by Section 7 of the National Labor Relations Act nor could it constitute an unfair labor practice under Section 8 of that Act. See Farmer v. United Broth. of C. & J. of America, Local 25, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977). Plaintiffs therefore needed not attempt to bring themselves under Section 301, and they have made no effort to do so. This point was specifically ruled by Judge Hunter in Helton v. Hake, supra, at l.c. 1033 as follows:

“The central issue raised by the complaint does not concern any wrongful act or failure to act on the part of the employer, but is based totally upon a negligent act or failure to act on behalf of the union, arising out of a duty owed to the employee by a specific union promise contained in the collective bargaining agreement. As previously stated, no claim for a breach of the duty of fair representation is made by the plaintiffs.5
“It is this Court’s conclusion, in view of all of the foregoing that the complaint herein cannot properly be considered a suit for violation of a contract within the meaning of Section 301(a). Rather, this is a suit predicated upon negligence, seeking damages for the alleged wrongful death of plaintiffs’ deceased. Merely because some interpretation of the contract appears to be necessary to the determination of the nature, scope or extent of the duty owed does not, in and of itself, categorize this cause as an action for violation of the contract so as to grant jurisdiction to this Court under Section 301(a). To adopt defendant’s view in this case would lead to the inescapable conclusion that any case in which interpretation of a collective bargaining agreement may be involved vests jurisdiction in the federal district courts under Section 301(a), regardless of the actionable wrong complained of or the relief sought, or how directly or indirectly related the collective bargaining agreement is to the action. * * * Plaintiffs herein are not praying for reinstatement or back wages, or for an improvement in working conditions. They are not employees or union members, but rather survivors bringing suit under the Missouri wrongful death law. Defendants have not suggested and it does not appear that any overriding federal labor policy is present that would warrant a construction of Section 301 to grant jurisdiction to this Court in this case.”

Footnote 5 to the foregoing text reads as follows:

“5. Defendants, in their separately filed motion to dismiss the complaint, contend that this complaint is really only a suit for denial of fair representation, and that as such, it fails to state a claim upon which relief could be granted because it alleges only negligent conduct on the part of the union defendants. Defendants further argue that a suit for denial of fair representation is the only method by which the union’s actions can be challenged. Were this Court to adopt this rationale, it would lead to the inevitable result that a union’s negligent performance or negligent failure to perform a duty owed to an employee which resulted in that employee being injured would not be actionable in any way.”

Notwithstanding that well reasoned opinion, defendants take sharp issue with it and claim it to be opposed to two other Federal opinions, Bryant v. International Union U. M. W. of America, 467 F.2d 1 (6th Cir. 1972) and House v. Mine Safety Appliances Co., 417 F.Supp. 939 (D.C.Idaho 1976). Each of those cases is distinguishable.

In Bryant, the representatives of the estates of eight dead miners brought actions in the federal District Court against the union on the ground that the union had breached its obligation under the collective bargaining agreement to enforce a safety program incorporated in the collective bargaining agreement. The provision directly in question was paragraph (e) which called for the creation of a mine safety committee to be selected by the local union. That section of the agreement went on to provide in part that, “[t]he mine safety committee may inspect any mine development or equipment used in producing coal. If the committee believes conditions found endanger the life and bodies of the mine workers, it shall report its finding and recommendations to the management * * The court held that the quoted provision did not impose an enforceable contractual duty upon the union:

“There can be no doubt that subsection (e) does provide for a union role in dealing with safety at the mine. It indicates that a mine safety committee shall be established at each mine with members selected from among the ranks of the union local representing a particular facility. Such committee was established and functioning at the River Queen Mine. The subsection also provides that among other powers the committee ‘may inspect any mine development or equipment . It is apparently contended that this language places a duty to inspect upon the local and International Unions. We do not accept this contention. The use of the permissive ‘may’ rather than obligatory language in the clause clearly negatives the possibility that any duty was to be created. No liability can be predicated upon the language of subsection (e).”

Bryant is different from the present case in two important regards. First, the plaintiffs in Bryant pleaded and sought to recover for breach of contract by the union. In contrast, the plaintiffs in the instant case seek to enforce a tort duty. Secondly, the union in Bryant did not undertake any firm duty. In contrast, the Union in the present case did firmly obligate itself by agreeing that the Union steward “shall see that the provisions of these working rules are complied with.”

House also differs from the case at bar. In House, certain employees filed suit against their employers arising out of a mine fire. The employers then filed third party complaints against the union asserting a right of indemnification and contribution, derived from an alleged right of the union members to sue the union for negligent performance of its duty to enforce mine safety. The provision in the collective bargaining agreement in question provided for a safety committee consisting of three employees designated by the union and three management members. The agreement went on to provide that, “[t]he function of the safety committee shall be to advise with the Plant Manager concerning safety and health matters but not to handle grievances. * * * Advices of the safety committee, together with supporting suggestions, recommendations and reasons shall be submitted to the Plant Manager for his Company’s responsibility to provide for the safety and health of its employees * * *.” (Emphasis by Judge Anderson in the House opinion). The collective bargaining agreement also provided that any questions concerning safety should be subject to the regular grievance procedures.

Judge Anderson held in the House opinion that “[i]n light of the collective bargaining agreement in this case” a theory of common-law negligence is inextricably intertwined and embodied in the union’s duty of fair representation; that the duty of fair representation is governed by federal law; and that federal law dictates that the exclusive duty owed by the union is that of fair representation and negligence on the part of the union is insufficient to impose any liability.

Although Judge Anderson intimated that his opinion in House was at variance to that of Judge Hunter in Helton, the opposition between Judges Anderson and Hunter is more apparent than real. As specifically stated by Judge Anderson, the House opinion was rendered in light of the particular collective bargaining agreement involved in that case. That agreement imposed no responsibility upon the union other than in an advisory capacity and in the handling by normal procedure of grievances which might arise out of safety complaints. In contrast, the Union in the present case has gone beyond a mere advisory role and instead has assumed the full duty to “see that the provisions of these working rules are complied with.” Furthermore, the Union saw to it that this enforcement function in the hands of its steward should be independent of interference from the employer. So Section 7.20 of the agreement concludes: “It is understood and agreed that the Employer is in no way responsible for the performance of these functions by the steward.”

We can readily agree that when a union assumes only an advisory capacity with respect to safety and the enforcement of safety regulations so far as the union is concerned is limited to only the usual grievance machinery, then the union is carrying out purely a representative function on behalf of its members and should be limited in its responsibility to performing that representation in a fair and honest manner. In such case, the safety situation would be no different from the many cases cited by defendants where a union has been charged with failure to represent its member in the presentation and processing of the employee’s grievance and where the union has been held liable only under the test of fair representation. See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 863, 11 L.Ed.2d 370 (1964); Dente v. International Organization of Masters, Mates and Pilots, Local 90, 492 F.2d 10 (9th Cir. 1974); De Arroyo v. Sindicato De Trabajadores Packinghouse, AFL-CIO, 425 F.2d 281 (1st Cir. 1970); Bazarte v. United Transportation Union, 429 F.2d 868 (3rd Cir. 1970). In that type of case, the handling of employee grievances are properly treated as no more than a recognized extension of the collective bargaining process.

Here, however, the Union has chosen to go far beyond a mere advisory status or representative capacity in the processing of grievances. Rather, it has taken over for itself a managerial function, namely the full independent right to enforce safety requirements. With its demand for and successful acquisition of that management right, it must also accept the concomitant responsibility. Under the terms of this particular collective bargaining agreement, the safety responsibility assumed by the Union is separate and distinct from the normal and usual duties of a purely representative nature such as those involved in the processing of grievances. As Judge Hunter properly held in Helton v. Hake, supra, defendants here should be held to answer for their breach of tort duty to use due care.

III.

Defendants contend next that plaintiffs are barred from recovery because of contributory negligence on the part of Helton. They point to the evidence that Helton was aware of the danger from the power line, that he appreciated the danger, and that he actually expressed apprehension of working in proximity to the power line. However, at the same time, Helton had some right to rely upon the implied assurances of Loethen and Hake that there was no substantial danger and that he was safe in continuing to work.

The rule is well settled that a workman’s knowledge of a dangerous condition precludes recovery only where the danger is so obvious that a man of ordinary prudence would refuse to do his employer’s bidding; and the question of whether the danger was so obvious and imminent as to make it contributory negligence for him to continue is usually a question for the jury. Burkard v. A. Leschen & Sons Rope Co., 217 Mo. 466, 117 S.W. 35 (1909). In judging whether the danger was obvious and imminent, it is proper to take into consideration that the foreman Loethen and the Union steward Hake were present when Helton voiced his apprehensions about the power line, but they both ignored that expression by Helton and despite that protest let the work go forward. Not only that, but they themselves as well as other workmen continued to work at that place and under the same conditions. Still further, even after the accident a number of the workmen, including Hake and Loethen, testified in court that they did not consider the work being done as particularly dangerous. The jury could believe that these other workmen honestly believed the proximity of the power line not to be an imminently dangerous condition and yet believe that they were mistaken in that opinion, with the net result that reasonable and honest men might differ as to whether the danger was obvious and imminent. Cole v. St. Louis Transit Co., 183 Mo. 81, 81 S.W. 1138, 1141 (1904). A number of Missouri cases have held under situations fairly comparable to the one at bar that the injured workman was not contributorily negligent as a matter of law. Burkard v. A. Leschen & Sons Rope Co., supra; Cole v. St. Louis Transit Co., supra; Laemore v. Lehrack, 248 S.W. 639 (Mo.App.1923); Nash v. St. Joseph Lead Co., 238 S.W. 584 (Mo.App.1922).

Defendants assert that Helton had safer alternatives available to him so that his choice of an unsafe manner of work was a voluntary exposure to the risk. They say for example that he should have brought up the angle irons while sitting down rather than standing up. There is considerable doubt from the evidence whether one way was any better accepted than the other. However, even assuming that it would be safer to handle the angle irons while sitting down, the evidence is uncertain and contradictory as to how Helton was actually working. Loethen testified that “when I seen him he was standing up,” but Loethen did not see Helton fall. McCormack on the other hand, last saw Helton “crouched down” and “sitting down” just before he toppled off. Inasmuch as nobody actually saw Helton or just what he was doing at the time of the electrocution, weight should be given to the presumption that he was handling himself and doing his work in a manner which accorded with due care. Privette v. City of West Plains, 93 S.W.2d 251 (Mo.App.1936); Hamilton v. Laclede Electric Cooperative, 294 S.W.2d 11 (Mo.1956).

Defendants make other suggestions as to reasonable alternative ways in which they say Helton might have done his work. However, it appears that he was doing his work in the usual manner, and it does not appear he had been shown any other manner of work either by the foreman or by the Union steward. Under those circumstances he should not be held guilty of contributory negligence as a matter of law. Longacre v. Farmers’ Elevator, Mercantile & Manufacturing Co., 246 S.W. 632 (Mo.App.1923). See also Phares v. Century Electric Co., 336 Mo. 961, 82 S.W.2d 91 (1935).

IY.

Defendants complain next that a class action cannot be maintained because there was no showing by plaintiffs that representatives of the class were fairly chosen and would adequately and fairly represent the members of the class. They argue that Section 507.070 and Rule 52.08 require that a hearing be held with respect to these matters and since there was no such hearing and no evidence on the subject, these provisions have been violated.

Defendants make no mention of Rule 52.10, governing actions by or against unincorporated associations, and which related to the present situation rather than Rule 52.08 which is cited by defendants. See Owens v. Savage, 518 S.W.2d 192 (Mo.App.1974). It should be noted that Rule 52.10 provides that “[n]othing in this Rule shall be construed to affect the rights or liabilities of labor unions to sue or be sued.” The quoted portion of Rule 52.10 has the purpose of preserving the traditional method by which labor unions sue and are sued. This is under the equitable doctrine of virtual representation which exists independent of statute or court rule. State ex rel. Allai v. Thatch, 361 Mo. 190, 234 S.W.2d 1 (banc 1950).

Inasmuch as under that doctrine the Union is sued in a representative capacity, any challenge to the Union’s right to be sued must be by specific negative averment. Section 509.140 and Rule 55.13. Where, as here, there is no specific negative averment challenging the Union’s capacity, no issue in that respect is presented. Heath v. Motion Picture Machine Operators Union No. 170, 365 Mo. 934, 290 S.W.2d 152, 159 (1956).

The application of that pleading rule does no injustice to the class consisting of all members of the Union. Plaintiffs named among the representatives of the class the president, the secretary treasurer and the business agent of the Union. The president of the Union actually appeared at the trial as a witness for the defense. The attorney for the Union has represented the whole class at all stages of this litigation, vigorously and with the utmost of professional skill. The whole purpose of Rule 52.08, which defendants erroneously claim to be applicable, is to insure adequacy of representation for all members of the class and to prevent collusion. City of Des Peres v. Stapleton, 524 S.W.2d 203 (Mo.App.1975). To any extent that Rule 52.08 is relevant here, its purpose has been well accomplished by the representation in the present case.

V.

Defendants complain next that the trial court refused to allow Hake to testify that in his opinion the job was not dangerous. The short answer is that Hake did give testimony on this point and that testimony was never stricken. During the course of his testimony the following appears: “In your opinion, Mr. Hake, was this job dangerous? Answer: No, it wasn’t.” Although an objection was then made and sustained by the court, the evidence was before the jury and never withdrawn.

Moreover the testimony in question by Hake was merely cumulative of like testimony given by Loethen and McCormack. Assuming that the ruling by the court sustaining the objection to Hake’s testimony was error, that error under all the circumstances cannot be deemed prejudicial.

VI.

On their cross-appeal, plaintiffs contend that the court erred in refusing to submit Instructions 14, 15, 17 and 18 relating to punitive damages. The point based on these instructions is not properly before us for consideration, because of plaintiffs’ violation of Rule 84.04(e) which requires that if a point relates to the refusal of an instruction, “such instruction shall be set forth in full in the argument portion of the brief.”

Aside from that, we agree with the trial court that the evidence did not justify the submission of any issue on punitive damages.

No error having been shown on either appeal, the judgment is affirmed. Costs will be divided equally between the parties.

All concur.

      . It is to be particularly noted that Judge Anderson in House was concerned about the practical aspects of opening up unions to liability in tort, and in that connection he speaks in footnote 10 on p. 946 about the potential impact upon the handling of grievances and the overloading of grievance machinery. Such concern would be justified if tort liability were recognized under the facts of House. No similar potentiality exists by reason of recognizing tort liability on the part of the Union here for failing to properly perform its duty under Section 7.20 of its agreement.

      . Section 7.21 of the collective bargaining agreement here does provide for a safety review committee, parallel to the committees provided for in Bryant and House. Article 8 of the agreement here also provides grievance procedure parallel to that in the two cases mentioned. However, the additional unilateral enforcement power given to the Union steward under Section 7.20 of the contract here is over and beyond anything contained in the Bryant or House agreements, While the steward under Section 7.20 could not call a work stoppage to enforce the safety rule of Section 7.28, there were other unilateral enforcement methods available to him, as he conceded in his testimony.

      . All statutory references ■ are to RSMo 1969.


source: Caselaw Access Project

author: DONALD B. CLARK, Special Judge.

license: Public Domain

text:
    Foster CRAWFORD, Forest J. McClure, Cloyd J. Lebow, Rosalie Franke, Kathleen Keeter, Orva Mae Blair, Betty L. Crawford, Mary J. Morse, Bonnie L. Paisley, and J. D. Palmer, Plaintiffs-Appellants, v. LeRoy BASHOR, Essie Ward, Robert W. McClure and Doris McClure, his wife, Loren Allen and Dorothy Allen, his wife, and Claude Standlea, Defendants-Respondents.
    No. KCD 29168.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    Motion for Rehearing and/or Transfer Denied April 3, 1978.
    Application to Transfer Denied May 9,1978.

      Dale, Flynn, Bauman & Liles, Martin M. Bauman, St. Joseph, for plaintiff s-appellants.
    Sheffrey, Ryder, Skeer, Krigel & Rose, William J. Kleinkauf, Albany, Dennis J. Owens, Kansas City, for defendants-respondents.
    Before SHANGLER, P. J., WASSER-STROM, J., and MARTIN and CLARK, Special Judges.
   DONALD B. CLARK, Special Judge.

This action was commenced in the Circuit Court of Gentry County to contest the will of one Hugh McClure. On motion by defendants, the trial court dismissed the petition for failure to name and serve all necessary parties. From such order of dismissal this appeal was taken. At issue is application of Section 473.083, RSMo 1969, the “will contest” statute. We affirm the order of the trial court.

Although the record on appeal and the briefs are deficient in supplying a statement of facts as required by Rule 84.04(c) and (f), no factual dispute being apparent, •the relevant facts will be extracted from appellants’ brief.

Hugh McClure died November 11, 1975. His will was admitted to probate and letters testamentary were issued November 14, 1975. The will included the following bequest:

“To the Baptist Church Cemetery of Whitesville, Missouri, being the .cemetery lying immediately adjacent to the churchyard on the north side of the churchyard of the Whitesville Baptist Church, the sum of $3000.00 cash.”

The suit to contest the will was filed by-appellants May 13, 1976.

Among persons notified by the executor of proceedings in the probate of the McClure estate was one Clifford Clark of Rea, Missouri, who is part time caretaker of the Baptist Church Cemetery at Whites-ville. No public record appears listing any legal entity bearing the name Baptist Church Cemetery of Whitesville, Missouri. A charter was issued on or about May 26, 1915 to the Whitesville Cemetery Association, but that charter expired and all trustees named have died and have not been replaced.

The subject will contest suit did not name as a party defendant the Baptist Church Cemetery of Whitesville, Missouri, the Whitesville Cemetery Association, Clifford Clark or any known or unknown trustee of the cemetery. No attempt was made by appellants to secure appointment of a trustee to act on behalf of the cemetery in respect to the bequest under the will. In its order, the trial court dismissed the petition for failure to name as a party any beneficiary for the bequest to the cemetery.

The authority for and jurisdiction to hear a suit to contest a will is contained in Section 473.083 RSMo 1969. In substance, the statute requires that the suit to contest the will be commenced within six months after the date of probate of the will or after the first publication of notice of letters, whichever is later, and that the contestant thereafter proceed diligently to complete service of process on all defendants. Failure to complete service within ninety days results in dismissal of the action on motion unless good cause be shown for such delay. As the Baptist Church Cemetery was not named in appellants’ suit, service of process was neither accomplished nor attempted within the period of limitation. If the Baptist Church Cemetery was a necessary party, then the failure to name such party as a defendant operates to invoke the dismissal penalty of the statute.

By virtue of the cited clause in the McClure will, the Baptist Church Cemetery was entitled to receive a legacy of $3000.00. Section 472.010, RSMo 1969, defines a legatee as a person entitled to personal property under a will. Although Section 473.083, RSMo 1969, does not expressly designate parties required to be joined in a will contest suit, it has repeatedly been held and common reason dictates that those named in the will as beneficiaries of gifts and bequests must be included as parties in the suit. Cole v. Smith, 370 S.W.2d 307 (Mo.1963); Kane v. Mercantile Trust Co. National Association, 513 S.W.2d 362 (Mo.1974). As a legatee, the Baptist Church Cemetery was a necessary party to appellants’ suit to set aside the will.

Appellants argue, however, that the Baptist Church Cemetery, having no registered or recognized legal existence, was not subject to service of process as required by Section 473.083(4), RSMo 1969, and that omission of such legatee was proper. This argument must fail initially for the reason that existence of the Baptist Church Cemetery of Whitesville, Missouri as a public or private cemetery has not been judicially ascertained. Appellants chose unilaterally to ignore the bequest to the cemetery and, having done so, precluded any inquiry as to the rights or status of the named legatee. Acceptance of appellants’ contention would thwart the purpose of the statute which contemplates that all parties interested in the estate be joined in the will contest suit.

Bequests to cemeteries are not uncommon and, in fact, are specifically validated by Statute. Section 214.140, RSMo 1969. Where the intent of the testator suggests a gift for the benefit of the lot owners and members of the cemetery association, a charitable trust is thereby created. Carlock v. Ladies Cemetery Association, 317 S.W.2d 432 (Mo.1958). If the trustor has failed to name a trustee, the court will appoint a trustee for a charitable use, otherwise valid. Carlock v. Ladies Cemetery Association, supra.

Compliance by appellants with Section 473.083, RSMo 1969, required that the petition to contest the McClure will name the Baptist Church Cemetery of Whitesville, Missouri as a party. Various alternates for subsequent procedures were available including service by publication as provided in Rule 54.12 and appointment by the court of a trustee on application. Appellants have made no showing of good cause for their failure to include the Baptist Church Cemetery as a necessary party. The prescribed statutory period for completion of service of process having passed, the court had no jurisdiction over the subject matter of the contest and properly dismissed the suit. Blatt v. Haile, 291 S.W.2d 85 (Mo.1956).

The trial court’s order dismissing the petition is affirmed.

All concur.


author: TURNAGE, Judge.

text:
    UNITED LOAN AND FINANCE CO., Respondent, v. Iris SMILEY, Appellant.
    No. KCD 29203.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    Motion for Rehearing and/or Transfer Denied April 3, 1978.
    Application to Transfer Denied May 9,1978.
    Dale K. Irwin, Legal Aid and Defender Society, James L. Muller, Kansas City, for appellant.
    Joseph H. Ernst, Thayer, Gum, Ernst & Wickert, Grandview, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

United Loan and Finance Company filed a verified petition and application under the Uniform Enforcement of Foreign Judgments Law, § 511.760, RSMo 1969, and Rule 74.79, to register a Kansas judgment in this State. The judgment was ordered registered in the magistrate court but Iris Smiley appealed to the circuit court. That court overruled Smiley’s motion to dismiss United’s petition and affirmed the magistrate order registering the judgment. This appeal follows.

Smiley contends the Kansas judgment is void because the Kansas statute allowing service at the residence of a defendant does not afford due process. Affirmed.

The parties filed a stipulation of facts in the circuit court. In that stipulation is was agreed United was a duly organized and existing corporation and Smiley was a citizen and resident of the State of Kansas at the time United filed an action in Kansas against her. In fact, the stipulation agrees Smiley remained a resident of Kansas to the date the stipulation was filed. The stipulation further agreed United filed its petition in the magistrate court of Wyan-dotte County, Kansas praying for a judgment in the sum of $1,151.50. It was agreed summons was directed to Smiley and a deputy marshall of Wyandotte County served a copy of the summons pursuant to § 61-1805 K.S.A.1976 Supp., by leaving a copy of the summons at Smiley’s residence.

It was agreed Smiley did not obtain actual notice of the pendency of this action but a default judgment was entered in Wyan-dotte County against her.

On this appeal Smiley directs her attack solely at the mode of service of process allowed by the Kansas law which permits a copy of the summons to be left at the residence of the defendant. Smiley did not present a constitutional question to the circuit court and that court did not undertake to pass on any constitutional question, thus, no question is presented on this appeal as to the constitutionality of the Kansas statute allowing service at the residence. State v. Sappington, 260 S.W.2d 669, 672 (Mo.1953). Nor does Smiley challenge the return made by the deputy or any other statement appearing on the face of the record. In fact, Smiley admits the deputy served a copy of the summons in accordance with the prevailing Kansas law by leaving a copy at her residence.

As noted, Smiley’s sole attack is leveled at the mode of service permitted by the Kansas statute. Her complaint is that service by leaving a copy of the summons at the residence does not comport with due process of law and is not sufficient to support a personal judgment.

Smiley relies upon Leichty v. Kansas City Bridge Co., 354 Mo. 629, 190 S.W.2d 201, 203[1, 2] (banc 1945) in which the court held a judgment may be collaterally attacked for want of jurisdiction of the subject matter or of the parties. As noted, Smiley does not contend the Kansas court lacked jurisdiction of the subject matter or of her person but only challenges the validity of the Kansas service statute.

No comparable case has been located in this State although there seems to be ample precedent in other states and texts. Although some of the authority is ancient, the law appears to be unchanged. In Harryman and Schryver v. Roberts, 52 Md. 64, 76 (1879) the court stated:

And whatever conflict there may be in some of the earlier cases on the subject, we think it is now well settled, that if process be served upon the defendant, according to the laws of the State of which he is a resident, and judgment be afterwards rendered against him, such a judgment is as binding between the parties, in this State, when relied on as a bar to the prosecution of a second suit, upon the same cause of action, as it is in the State where it was rendered.

The same rule was announced in Bimeler v. Dawson, et al, 5 Ill. 536, 542 (1843):

The record produced by the plaintiff showed that there was service of process, and if the laws of Ohio authorized the kind of service, and the defendant at the same time was an inhabitant of the State, he was bound to interpose his defence there, and omitting to do it, the judgment there rendered is conclusive in this State.

The same rule is said to be the better rule in 3 Freeman Judgments ¶ 1376, at 2845 (1925):

The position, however, which seems to be best sustained, both by reason and by precedents, is, that each state has the authority to provide the means by which its own citizens may be brought before its courts; that the courts of other states have no authority to disregard the means thus provided; and finally, that every judgment or decree obtained in a state against some of its citizens, by virtue of a lawful, though constructive, service of process, should be as obligatory upon such citizen in every other state as it is in the state whence it is taken.

A more recent statement of the rule, and perhaps more precise to the question presented here, is found in 126 A.L.R. 1474, at 1480 (1940):

By the great weight of authority a personal judgment rendered against a resident of the state upon service by leaving a copy of the summons at his usual place of abode, or service upon an attorney appointed by the court to receive service for the absent defendant, if such mode of service is authorized by the statute of the state, is in accord with due process of law and valid, not only in the state where rendered, but also elsewhere.

Perhaps the most recent statement of the rule is found in 50 C.J.S. Judgments § 893, at 508:

If process is served on a defendant according to the laws of the state of which he is a resident, and in which the action is brought, although it falls short of actual personal service, a judgment rendered against him is entitled to recognition as valid and binding in the courts of another state; but the judgment is liable to be impeached in the courts of another state by proof that defendant was not actually domiciled in the state where it was rendered, or subject to its laws.

From all of the above authorities it is clear the validity of the Kansas statute allowing service by delivering a copy of the summons to the residence of Smiley may not be attacked in this State when it is conceded Smiley was a resident of the State of Kansas at the time service was made.

Smiley does not question the fact the Kansas mode of service has been upheld by the courts of Kansas. The Kansas service statute under attack here was upheld in Royse v. Grage, 141 Kan. 702, 42 P.2d 942 (1935) and Board of County Com’rs of Sedgwick County v. Ellis, 161 Kan. 631, 170 P.2d 145 (1946). Thus there is no doubt the judgment in this case was valid in Kansas.

Smiley further attempts to bring her argument under the rule stated in Scott v. Scott, 441 S.W.2d 330, 332[1] (Mo.1969) which states that a judgment of another state is subject to attack for failure to give due notice to the defendant. As already noted, Smiley does not question the fact that service of process was made in accordance with the Kansas statute and that this service has been upheld by Kansas. What she seeks from this court is a determination that the Kansas statute is invalid. The failure to give due notice mentioned in Scott does not give this court authority to pass on the validity of the Kansas service of process statute in this case.

Under the rule in Scott and under the holding in Leichty, Smiley could raise the failure to give notice by attempting to show the return of the sheriff was false or was fraudulently made or by presenting other facts which would demonstrate that in fact she was not given notice of the pendency of a suit against her in accordance with Kansas law. However, this does not permit Smiley to bring into question in Missouri the validity of a Kansas service of process statute which has been approved by the courts of Kansas and which was followed in obtaining jurisdiction of her while she was a resident of that state.

The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Clifford R. COMBS, Defendant-Appellant.
    No. KCD 29290.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    Motion for Rehearing and/or Transfer Denied April 3, 1978.
    Application to Transfer Denied May 9,1978.

      Clifford A. Cohen, Public Defender Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON, and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals a conviction for burglary and stealing and a court-imposed sentence of four years under the Second Offender Statute.

Defendant raises three points: first, failure of the trial court to strike the jury panel because the jury selection system excludes women; second, the trial court failed to give MAI-Cr 1.08 at all recesses; third, the refusal of an accomplice instruction.

Sufficiency of the evidence is not raised, and there was substantial evidence to show that defendant broke into a school building and stole property of the school district.

As to the defendant’s first point, the issue is resolved by State v. Duren, 556 S.W.2d 11 (Mo. banc 1977), and needs no further discussion.

With respect to the issue raised by the defendant concerning the failure of the trial judge to give MAI-Cr 1.08(a), some additional discussion of the record evidence is required. At the beginning of the trial, the court read MAI-Cr 1.08(a). At the noon recess, the court read MAI-Cr 1.08(b) as a reminder of their obligation not to discuss the case. Thereafter, a short recess was taken by the court for the purpose of advising the defendant’s accomplice of his right not to incriminate himself before he testified. Before the recess, the court said to the jury, “Would you keep in mind what I asked you previously about discussing the case.” It is true that under MAI-Cr, absolute and literal compliance with the directions concerning the admonishment of juries is ordered and expected by the Supreme Court. State v. Vernor, 522 S.W.2d 312, 316 (Mo.App.1975), and a deviation from the literal language of MAI — Cr constitutes error, the prejudicial effect of which is to be judicially determined. Vernor, supra. Rule 20.02(e). In Vernor, the failure to give the exact instruction was held to be harmless since the trial court had admonished the jury not to talk about the case. So also in State v. Gaye, 532 S.W.2d 783 (Mo.App.1975), the court warned the jury not to discuss the case but did not use the language of MAI-Cr. It was held to be harmless since it adequately covered the substance of MAI-Cr 1.08(a), and in State v. Abbott, 547 S.W.2d 853 (Mo.App.1977), a subsequent failure to give any admonishment after an initial admonishment had been given was held to be harmless where no objection was made and where there was no demonstration of misconduct by the jury. There is no demonstration of misconduct by the jury in this case, and the failure of the trial court to use the literal language of MAI-Cr is of less consequence than the total failure in State v. Abbott. There was no objection to the manner in which the jury was admonished in this case. There is no prejudicial effect from the error of the trial judge in failing to use the literal language of MAI-Cr.

As to the refusal of the accomplice instruction, the Notes on Use to MAI-Cr 2.01 provide that no instruction of a cautionary nature as to uncorroborated evidence should be given other than MAI-Cr 2.01. The precise issue was dealt with in State v. Carlos, 549 S.W.2d 330 (Mo. banc 1977), and in State v. Hill, 530 S.W.2d 50 (Mo.App.1975).

Judgment and conviction affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Frank E. COMLEY, Appellant.
    No. KCD 29296.
    Missouri Court of Appeals, Kansas City District.
    Feb. 27, 1978.
    Motion for Rehearing and/or Transfer Denied April 3, 1978.
    Application to Transfer Denied May 9,1978.

      Robert E. Hart, Robert G. Duncan, Duncan & Russell, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Frank Comley was found guilty by a jury of stealing under § 560.156, RSMo 1969, and sentenced to confinement for three years and one day.

On this appeal Comley challenges the sufficiency of the evidence and complains of juror misconduct. Affirmed.

In his brief Comley agrees the jury could have found the following: About 3:30 a. m. in December, 1975, Officer Goforth of the Smithville Missouri Police Department made a routine check of the Littleton Ford Company premises in Smithville. He noted a red pickup truck parked in a row of pickups in particular because, unlike the others, it did not have any frost on the windshield. He wrote down the license number on this truck. He also noted a yellow pickup with a white camper shell parked on the lot.

Officer Goforth left the car lot, but a short time later, he saw the red pickup and the yellow pickup leave the car lot. Becoming suspicious, Officer Goforth began chasing the two trucks but they outdistanced him. Officer Goforth drove a few miles, then doubled back. As he was returning toward Smithville, he met the two pickup trucks approaching him. He made a U-turn and began to chase the trucks. The red truck was between the officer and the yellow truck. As Officer Goforth began his chase the trucks at first accelerated to speeds of 80 to 90 miles per hour. Then the red truck slowed to about 25 miles per hour, turned his headlights off and drove in the center of the highway to prevent the officer from passing. After the yellow truck went out of sight, the red truck pulled over to the side.

Officer Goforth requested the driver of the red pickup to get out and learned he was Frank Comley. At that time Comley denied any wrongdoing and stated he had simply pulled in the car lot to rest from his trip home from Iowa.

Officer Goforth had alerted Kansas City, Missouri Police and they later spotted the yellow pickup truck. The officers gave chase and the truck was driven off the highway into a field near a wooded area. The driver ran from the truck and escaped. On inspecting the truck, the officers noted the identification number and also recovered a walkie-talkie from the cab. Later, when the Kansas City officers entered the police station where Comley was being held, Comley saw the walkie-talkie and stated, “You broke into my truck and took that.”

Evidence was introduced to show the yellow pickup driven into the field by the escaped driver was the same pickup driven from the Ford Agency. Officer Goforth further testified the license number of the red pickup he had earlier observed parked on the Ford lot was the same license number of the red pickup he later stopped which Comley was driving.

With this recital of the evidence, it is appropriate to consider Comley’s challenge to the sufficiency thereof to sustain his conviction. Comley contends the court erred in failing to grant his motion for directed verdict at the close of State’s evidence because the evidence was circumstantial and all the circumstances were not consistent with the hypothesis of guilt and inconsistent with his innocence.

The main fact urged by Comley to show a gap in the evidence sufficient to support his conviction is the failure of the State to prove a felonious taking without the consent of the owner of the yellow pickup truck. The owner of the Ford Agency testified the yellow pickup recovered after the chase and abandoned by the escaped driver was the same one belonging to him. He stated it had been on his lot. The State did not elicit the fact that he had not given anyone consent to remove the truck from his premises.

On this appeal this court views the evidence in the light most favorable to the State accepting as true all evidence (whether circumstantial or direct) and the inferences to be reasonably drawn therefrom favorable to the verdict. All evidence and inferences unfavorable to the verdict are disregarded. State v. Mussman, 526 S.W.2d 62[1] (Mo.App.1975). The failure to elicit testimony from the owner that he had not given consent for his truck to be moved from his lot is not fatal. The lack of consent may be established by circumstantial evidence giving rise to a reasonable inference the taking was done without consent. State v. Webb, 423 S.W.2d 795, 798[3-5] (Mo.1968).

Here the participation of Comley in the taking is shown by direct evidence. His actions were observed by Officer Goforth and his attempts to prevent the officer from overtaking the yellow truck constitute direct evidence that Comley aided and encouraged someone else to steal the pickup truck. State v. Regazzi, 379 S.W.2d 575, 578[1, 2] (Mo.1964). The only element established by circumstantial evidence was the lack of consent on the part of the owner. The evidence concerning the time, the evasive action taken by both trucks during the chase, the abandonment of the truck in a field and the escape of the driver and the presence of Comley’s walkie-talkie in the yellow truck, constitute sufficient evidence from which the jury could reasonably infer that the taking of the truck was without the consent of the owner. All of this evidence made a submissible case for the jury to find that Comley aided and encouraged another to steal a pickup truck.

Comley’s next point revolves around a luncheon meeting between the court bailiff and one of the young lady jurors after the evidence had been completed but prior to the submission of the case to the jury. This matter was first brought to the attention of the court by a post-trial motion for mistrial. The court held a full hearing on the matter at which both the bailiff and the juror testified. The juror denied there was any discussion concerning the case on trial. She stated she asked the bailiff how long jury deliberations usually lasted because she had recently started a new job and was curious as to when she might be able to return to work. She and the bailiff agreed that in response to this the question the bailiff stated to be safe, he had better not answer the question. The only other conversation which dealt with court functions was the bailiff’s observation that lawyers would sometimes inquire of him as to how they were doing in their trial work. Both denied any discussion about the case on trial and the juror acknowledged she knew she was not supposed to talk about the case on trial.

Comley relies on §§ 546.230 and 546.240, RSMo 1969. He states these sections clearly forbid communication between an officer of the court and a juror. Comley does not urge there was any communication between the bailiff and the juror other than as testified by them.

This situation is controlled by the rule set out in State v. Edmondson, 461 S.W.2d 713, 723 (Mo.1971). In that case the court stated “if the separation or misconduct of the jury took place during the progress of the trial, the verdict will be set aside, unless the state affirmatively shows that the jurors were not subject to improper influences.”

Here, a hearing was held as it was in Edmondson and the court determined the juror did nothing improper and nothing occurred to affect her in any way in her deliberation in this case. The court also found there was no effect on the deliberation or opinion and finding of any other juror. The court did observe the bailiff made an error in judgment in asking the juror to lunch at the time he did.

The question is whether or not Comley was prejudiced or whether the juror was subjected to any improper influences. The trial court has the discretion to determine whether the circumstances require a mistrial. Edmondson, supra, at 724[6],

The facts elicited at the hearing on the motion for a mistrial demonstrate the absence of improper influence on the juror and support the judge’s discretionary finding against the granting of a mistrial. No abuse of discretion is shown. Edmondson, supra. See also State v. Davis, 462 S.W.2d 798, 803[8] (Mo.1971).

The judgment is affirmed.

All concur.


author: McMILLIAN, Judge.

text:
    George Steven WOODS, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 38689.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 28, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 1978.
    Application to Transfer Denied May 9,1978.

      Christelle Adelman-Adler, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant George Steven Woods appeals from an order entered in the circuit court of the City of St. Louis denying, without an evidentiary hearing, his Rule 27.26 motion to set aside his conviction and sentence. Appellant was convicted of murder in the first degree after entering a plea of guilty and was sentenced to life imprisonment. For reversal appellant contends that the trial court erred in not granting an eviden-tiary hearing because his motion stated facts which, if true, entitled him to relief. We disagree and accordingly affirm the order.

From the transcript of the acceptance of appellant’s guilty plea, we note that the trial court conducted an extensive hearing. We further note that at the guilty plea proceedings appellant affirmed that (1) his plea was given “freely and voluntarily” and (2) his plea was entered “of his own free will” and that no coercion was involved. Additionally, appellant stated that he had not been “threatened or coerced or intimidated in any manner by anyone” so as to cause him to plead guilty.

Appellant’s motion alleges that his guilty plea was coerced by the “brutal treatment” he received in jail and he received ineffective assistance of counsel because his court-appointed counsel improperly assessed the admissibility of his four pri- or convictions. With respect to appellant’s first allegation that his guilty plea was coerced by inhumane jail conditions, we note that this allegation, even if true, would not entitle appellant to relief, e. g., Ervin v. State, 525 S.W.2d 381, 386 (Mo.App.1975). “. . . [Dissatisfaction with penal conditions and a hope that by a guilty plea a different kind of incarceration might be achieved are not [valid considerations] on a motion to vacate sentence on the ground of involuntariness of the guilty plea. . .” (Citations omitted.) Equally important, appellant’s assertion that his plea was coerced by inhumane jail conditions is directly refuted by the record as we noted above. Moreover, appellant’s assertions as to inhumane jail treatment, if true, were defects which were waived by his subsequent guilty plea, e. g., Kunkel v. State, 501 S.W.2d 52 (Mo.1973). Consequently, we must rule this point against appellant.

Appellant’s final allegation that he received ineffective assistance of counsel because his counsel improperly assessed the significance of his prior convictions is without merit. Nowhere in the record or in the motion does appellant allege that he ever informed his attorney that he had not been represented by counsel at any of the prior convictions. Consequently, we refuse to hold that there was ineffective assistance of counsel in this case because there was a presumption that the convictions were valid, e. g., Tollison v. State, 556 S.W.2d 455, 458 (Mo.App.1977). Thus, we cannot fault counsel for rendering advice which, under the circumstances, appeared to be accurate.

Furthermore, even if counsel had inaccurately assessed the significance of appellant’s prior convictions, this by itself would not entitle appellant to relief. In McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970), the defendant claimed that he was afforded ineffective representation because his attorney had erroneously assessed the admissibility of his confession. Holding that this was not a ground for relief, the court said:

“[A] defendant’s plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant’s confession.”

Similarly, in Coleman v. State, 542 S.W.2d 53, 54 (Mo.App.1976), this court rejected the movant’s contention that his guilty plea had been entered because of erroneous advice furnished by his counsel. In Coleman, supra, we noted that the movant was bound by his plea unless he could allege and prove “serious derelictions on the part of counsel sufficient to show that his plea was not a knowing and intelligent act.” Id. From the record it is apparent that such was not the case here. Therefore, we cannot say that the ruling made by the trial court denying an evidentiary hearing was clearly erroneous, if erroneous at all. Rule 27.26(j), V.A.M.R.

Judgment affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: CLEMENS, Presiding Judge.

text:
    Clarence STARR, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38147.
    Missouri Court of Appeals, St. Louis District, Division 1.
    March 7, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court April 10, 1978.
    Application to Transfer Denied May 9,1978.

      Robert C. Babione, Public Defender, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Movant (hereafter “defendant”) has appealed from the trial court’s denial of his Rule 27.26 motion without an evidentiary hearing.

Defendant is now serving a life sentence for robbery/murder. His conviction was affirmed in State v. Starr, 492 S.W.2d 795 (Mo.1973).

On this appeal defendant first alleges three underlying trial errors: Limiting cross examination of a witness, permitting testimony about bullets not introduced in evidence, and failure to give a cautionary instruction about a conspirator’s testimony. Defendant concedes these trial errors, as such, are not cognizable in a post-conviction motion, but that because the trial rulings indicate “conduct of the trial judge prejudiced movant” he was denied a fair trial.

We deny that contention for three reasons: (1) The ground quoted in defendant’s brief is patently conclusory, rather than factual as required. Smith v. State, 513 S.W.2d 407[1] (Mo.1974). (2) The three underlying grounds were alleged tnal errors — the cross examination and evidentiary points were upheld on appeal; no cautionary instruction was offered by defendant. Since the trial court ruled correctly on each point, we deny defendant’s present contention that the conduct of the trial judge was prejudicial and denied him a fair trial. Prejudice does not arise from correct rulings. (3) The quoted ground is in itself an alleged trial error, cognizable on direct appeal but not on a Rule 27.26 motion.

For his second point defendant contends he was denied effective assistance of counsel on appeal because of his attorney’s failure to present on direct appeal the question of whether movant was deprived of a fair trial by a sleeping juror. We deny this point for separate reasons. First, it lacks a factual basis. As found by the trial court in its memorandum denying defendant’s contention about a sleeping juror: “The Court has conducted a minute and exhaustive review of the lengthy certified transcript of the trial proceedings. The Court can find absolutely no support for such allegation contained in the transcript of trial proceedings.” Second, the point lies outside the scope of a Rule 27.26 motion which “authorizes a trial court to set aside a judgment of conviction for infirmities arising from trial proceedings only; relief from defects in proceedings before the appellate courts are beyond the scope of the remedy.” Roulette v. State, 504 S.W.2d 331[1] (1973).

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: GUNN, Presiding Judge.

text:
    Rita Marie CLOYD, Plaintiff-Respondent, v. Mason D. CLOYD, Defendant-Appellant.
    No. 38853.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 7, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court April 10, 1978.
    Application to Transfer Denied May 9,1978.

      Donald R. Wilson, St. Louis, for defendant-appellant.
    Dowd & Oates, Edward L. Dowd and Francis M. Oates, St. Louis, for plaintiff-respondent.
   GUNN, Presiding Judge.

Defendant, Colonel Mason D. Cloyd, appeals from a judgment of the circuit court overruling his motions to quash writs of garnishment directed against wages owed to him by the United States Air Force. The garnishments were initiated by his former wife, Rita Marie Cloyd, in order to collect a previous Missouri judgment for alimony and child support. On appeal, defendant argues that the writs of garnishment could not lie because personal jurisdiction was not obtained over him in the underlying divorce proceeding, rendering void the money judgment awarded. Further, he argues that because the trial court sustained his motion to quash one garnishment it was bound by the doctrine of res judicata to sustain his motions to quash succeeding garnishments. Finally, he argues that because of improper service the court did not obtain personal jurisdiction over the garnishee or the res to be garnished. We affirm.

On March 19, 1971, Rita Marie Cloyd, while a resident of Missouri, filed a petition for divorce in the circuit court of the City of St. Louis. Brian Douglas Cloyd, born March 17, 1951, was the only child of the marriage. Col. Cloyd, a physician with the United States Air Force, was then stationed in Denver, Colorado. The summons and a copy of the petition were served by registered mail addressed to Col. Cloyd at a military facility in Denver. Even though the receipt bore directions that the registered letter was to be delivered to the addressee only, the return receipt dated March 29,1971 was signed for Col. Cloyd by Vera B. Morris. An answer in the nature of a general denial was subsequently filed by a St. Louis attorney, Frank N. Carter, Jr., purportedly at the behest and with the authority of Col. Cloyd. Mr. Carter also appeared at a hearing on Mrs. Cloyd’s motion for alimony, child support and attorney’s fees pendente lite. No other reference to Mr. Carter’s representation appears in the record until August 18, 1971, when, by leave of court, he withdrew as Col. Cloyd’s attorney. On August 31, 1971, Mr. Carter mailed a letter to Col. Cloyd’s Denver address advising him that,

“Your divorce case was set for hearing on August 18, 1971, in Division 14 of the Circuit Court of the City of St. Louis, Missouri. As I had not received any response from you regarding the interrogatories that I had previously forwarded nor any other response from you indicating your position on the matter, I requested leave of Court to withdraw as your attorney. This was approved by the Court.
I suggest that you retain counsel to represent you immediately. To fail to do so would put you to a decided disadvantage upon the next court setting.”

There is no indication in the record whether Col. Cloyd actually received this letter, but if he did he took no action on it. On September 29, 1971, a decree of divorce was granted to Mrs. Cloyd. Col. Cloyd was ordered to pay $400 per month alimony, $250 per month child support and $400 for attorney’s fees. Neither Col. Cloyd nor an attorney on his behalf appeared at the divorce proceeding.

No action was taken to collect the judgment until October 10, 1975, when Mrs. Cloyd filed a request for a thirty day garnishment alleging that the judgment was unsatisfied to the extent of $23,164.00 with interest and costs. The United States Attorney in St. Louis was named garnishee in his capacity as a United States government officer. An execution dated October 14, 1975 was issued along with a sheriff’s levy returnable November 13, 1975, and the United States Attorney was summoned as garnishee. The United States, Department of the Air Force filed an answer of garnishee on November 20,1975, stating that it was indebted to Col. Cloyd in the sum of $2,114.70. This amount was on the court’s order paid into the circuit court and subsequently paid out to Mrs. Cloyd without objection.

On January 6, 1976, a request for a ninety day garnishment based on the same unsatisfied judgment was filed again naming the United States Attorney, in his capacity as United States government officer, as garnishee. A sheriff’s levy returnable April 4, 1976 was issued and the United States Attorney was served with a summons of garnishment. The Air Force filed an answer of garnishee on February 23, 1976 admitting that as of the return date it would be indebted to Col. Cloyd in the sum of $6,597.86. This second garnishment, unlike the first, was contested by means of a motion to quash alleging, inter alia, several of the grounds asserted in this appeal. A hearing was held in which Col. Cloyd was represented by counsel, and the motion to quash garnishment No. 2 was taken under submission. Thereafter, Col. Cloyd, with leave of court filed a supplemental motion to quash accompanied by affidavits from himself and Frank N. Carter, Jr. purporting to deny Carter’s authority to file an appearance for Col. Cloyd in the original divorce proceeding.

Meanwhile, a request for a second ninety day garnishment, (the third garnishment) in all material respects identical to the previous requests, was filed by Mrs. Cloyd on May 11, 1976. The sheriff’s levy in this instance was returnable on August 23,1976. Col. Cloyd filed a motion to quash this third garnishment while his motion to quash garnishment No. 2 was still under submission. A hearing on the motion was set for July 19, 1976, but when Mrs. Cloyd failed to appear the court quashed garnishment No. 3 without hearing any evidence.

On September 3,1976, a third request for a ninety day garnishment (the fourth garnishment) was filed, and the United States Attorney was summoned as a garnishee. A motion to quash this garnishment was filed and was taken under submission.

On October 8, 1976, the circuit court held a hearing to facilitate the disposition of the motions to quash garnishments Nos. 2 and 4 which were still under submission. No further evidence was heard. Mrs. Cloyd through her attorney waived an opportunity to offer additional evidence or to have a further hearing in connection with the pending garnishments. Likewise, Col. Cloyd elected to rest his opposition to the garnishment solely on the grounds stated in his motions to quash as supported by the evidence contained in the accompanying affidavits.

In his affidavit, Col. Cloyd stated that after he received the summons and divorce petition by mail he telephoned Al Roth, a St. Louis attorney with whom he was acquainted, to discuss the matter. Mr Roth advised him that because of his friendship with both of the Cloyds he would represent neither, but that “he would look into the matter further and advise.” Col. Cloyd averred that he had no subsequent communication with Mr. Roth; that he had no communication with Mr. Carter; and that he did not authorize Mr. Carter to enter an appearance in the divorce proceeding or have knowledge that he was going to undertake to represent him in any way.

In his affidavit Mr. Carter stated that Mr. Roth had contacted him in May, 1971, requesting that he file an answer on behalf of Col. Cloyd in the pending divorce and that he appear in his behalf at the PDL hearing. Mr. Carter complied with these requests. Thereafter he attempted to communicate in writing with Col. Cloyd concerning unanswered interrogatories. Receiving no response to these letters, Mr. Carter withdrew from the case and notified Col. Cloyd of his withdrawal by mail. Mr. Carter stated that he did not know Col. Cloyd and had never discussed the divorce suit with him. He averred that Col. Cloyd gave him no authorization to act in his behalf and that he acted solely at the behest of Mr. Roth. There was no affidavit or other testimony from Mr. Roth, and his absence was not explained.

On November 29, 1976, the circuit court overruled the motions to quash garnishments Nos. 2 and 4. It is from this order that Col. Cloyd appeals.

Col. Cloyd’s first assault on the garnishment relates to the validity of the underlying divorce decree awarding alimony and child support. He argues that the court which granted the divorce was not empowered to enter a money judgment against him because personal jurisdiction was not obtained. Col. Cloyd was not personally served, and he states in his affidavit that the purported appearance entered by Mr. Carter in his behalf was without authority. He therefore argues the writs of garnishment should be quashed.

A valid judgment is an indispensible prerequisite to a valid garnishment. Before a court may rightfully award a money judgment against a party, there must have been either personal service or a general appearance by the party himself or through counsel. First National Bank in Chester v. Conner, 485 S.W.2d 667 (Mo.App.1972). Where there is no personal service and where the attorney who enters an appearance on behalf of a party without his consent, the answer filed does not confer personal jurisdiction over the party, and any money judgment entered is void. Id. The proper remedy in the face of a writ of garnishment based on judgment void for lack of personal jurisdiction is a motion to quash. Drinkard v. Eastern Airlines, Inc., 290 S.W.2d 175 (Mo.App.1956); Lohmann v. Lohmann, 246 S.W.2d 368 (Mo.App.1952); Weniger v. Weniger, 32 S.W.2d 773 (Mo.App.1930). A motion to quash a garnishment for alleged invalidity of the judgment, however, is a collateral attack on the judgment and will lie only where the record affirmatively discloses that the judgment is void. First National Bank in Chester v. Conner, supra. But such a finding will not be lightly made. A licensed attorney who enters an appearance for a party is presumed to do so with authority. Johnson v. Baumhoff, 322 Mo. 1017, 18 S.W.2d 13 (1929). And there is even a stronger presumption that a judgment rendered by a court of competent jurisdiction is valid and obtained by proper means. O’Neill v. Winchester, 505 S.W.2d 135 (Mo.App.1974); Colorado Milling & Elevator Co. v. Rolla Wholesale Grocery Co., 102 S.W.2d 681 (Mo.App.1934). The existence of every fact essential for the court to have rendered a valid decree is presumed, Gomez v. Gomez, 336 S.W.2d 656 (Mo. banc 1960), with the burden on the party contesting the judgment to overcome such presumptions. O’Neill v. Winchester, supra; Colorado Milling & Elevator Co. v. Rolla Wholesale Grocery Co., supra.

Col. Cloyd argues that he has met his burden by filing the affidavits from himself and Mr. Carter with his motion to quash the garnishments. Relying on Conner, he argues that these uncontroverted affidavits establish as a matter of law that the attorney who appeared did so without authority. The Conner case, however, does not mandate a decision in favor of Col. Cloyd in this case. In Conner, the attorney who filed an answer on behalf of the party contesting the judgment testified in open court that he did so without authority. This testimony convinced the trial court that the answer had indeed been filed without the party’s consent and induced the quashing of the writ of garnishment based on the improper judgment.

In this case the trial court, after a consideration of the entire record, found that Col. Cloyd failed to meet his burden of showing lack of authority and refused to quash the garnishments. We are thus faced with the question of whether there was sufficient evidence for the court to so find. We believe there was. First, there were the presumptions that an attorney who files a pleading for a party does so with authority and that a court of competent jurisdiction will render a valid judgment. Second, Col. Cloyd allowed garnishment No. 1 to proceed unchallenged even though it deprived him of over $2,000 in wages. Third, neither Col. Cloyd nor Mr. Carter testified in person, which would subject their statements to the scrutiny of cross-examination. Finally, and most significant, Mr. Roth, who acted as an intermediary between Col. Cloyd and Mr. Carter, filed nothing regarding the content of his conversations with those persons. There was no explanation for his failure to provide testimony. Based on these considerations and the implications fairly derivable therefrom, the trial court could reasonably find that Mr. Carter entered his appearance on behalf of Col. Cloyd with the authority to do so.

Col. Cloyd urges that under Rule 55.28 V.A.M.R. the trial court was compelled to accept as true facts stated in the uncontroverted affidavits. He argues that at the very least the affidavits made a prima facie case of absence of authority thus shifting the burden of going forward to Mrs. Cloyd. We disagree. It is true that in interpreting Fed.Rules Civ.Proc. Rule 43(e) U.S.C. 28, which is identical to our Rule 55.28 V.A.M.R., the federal courts have consistently held that where facts contained in affidavits are not controverted they are deemed admitted for purposes of the motion. See Grantham v. Challenge-Cook Bros., Inc., 420 F.2d 1182 (7th Cir.1969); International Graphics, Inc. v. MTA-Travel Ways, Inc., 71 F.R.D. 598 (S.D.Fla. 1976); McDavid v. James, 64 F.R.D 182 (E.D.Tenn.1973); Bucholz v. Hutton, 153 F.Supp. 62 (D.Mont.1957). But we need not decide here if a similar interpretation should be given to our Rule 55.28. In light of the forementioned evidence and presumptions supporting the trial court’s decision to overrule the motions to quash, we believe that Col. Cloyd’s affidavits were controverted by facts on the record thereby relieving Mrs. Cloyd of any necessity of filing counter affidavits.

Our courts have held that facts contained in affidavits accompanying motions are competent evidence and, if believed by the trial court, will support a judgment. Litzinger v. Pulitzer Publishing Co., 356 S.W.2d 81 (Mo.1962); Germanese v. Champlin, 540 S.W.2d 109 (Mo.App.1976). Nevertheless, our courts have long held that the trial court when acting as the trier of fact may disbelieve the testimony of any witness. Labor Discount Center, Inc. v.

State Bank and Trust Co., 526 S.W.2d 407 (Mo.App.1975). “The trial court in a court-tried case is the arbiter of the facts; it may believe or disbelieve oral evidence and the fact that the testimony is uncontradicted is not in any way decisive.” Intertherm, Inc. v. Coronet Imperial Corp., 558 S.W.2d 344, 348 (Mo.App.1977). If, then, under Missouri law, the trial court may disbelieve in-court testimony, a fortiori an affidavit may be similarly treated.

Next, Col. Cloyd asserts that the trial court erred in overruling his motions to quash, in that the requirements of the Soldiers’ and Sailors’ Relief Act were not complied with, thereby rendering the divorce judgment void. 50 U.S.C. Appx. § 520, which is applicable in suits against military personnel provides in part:

“(1) In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. .
If an affidavit is not filed ... no judgment shall be entered . . . until after the court shall have appointed an attorney to represent defendant and protect his interest . . ..”

Col. Cloyd argues that a default judgment was entered against him without an attorney having been appointed to represent and protect his interests. His argument is incorrect. The judgment entered was not a default. Col. Cloyd through his attorney entered an appearance by filing a general denial. Prior to trial, however, the attorney withdrew from the case and no one appeared on his behalf when the judgment was entered. Under these facts there was no default nihil dicit, but a mere default in appearance. The judgment was on the merits after a consideration of the evidence proffered by the pleadings. Hamm v. Hamm, 437 S.W.2d 449 (Mo.App.1969); Kollmeyer v. Willis, 408 S.W.2d 370 (Mo.App.1966); J. G. Jackson Associates, Inc. v. Mosley, 308 S.W.2d 774 (Mo.App.1958).

Moreover, there was no “default of any appearance by the defendant” as that term has been interpreted in numerous decisions. For there to be such a default the defendant must not have made a general appearance at any time while the suit was pending. Blankenship v. Blankenship, 263 Ala. 297, 82 So.2d 335 (1955); Koser v. Koser, 148 Neb. 277, 27 N.W.2d 162 (1947); In re Cool’s Estate, 19. N.J.Misc. 236, 18 A.2d 714 (Orphans Ct. 1941). If an appearance is made which is deemed extant at the time plaintiff seeks to enter judgment the defendant is precluded from relying on the protections afforded by § 520. Case v. Case, 124 N.E.2d 856 (Pro.Ct. Ohio 1955).

In this case, Col. Cloyd entered an appearance through his attorney by filing an answer. This appearance was deemed to have existed when the judgment was entered. The fact that his attorney withdrew prior to trial is of no consequence. The purpose of § 520 is to protect persons in the armed services from judgments entered against them without their knowledge. Title Guarantee & Trust Co. v. Duffy, 267 App.Div. 444, 46 N.Y.S.2d 441 (S.Ct. 1944). Here, Col. Cloyd acknowledged receiving process by substituted service and taking steps to procure the services of an attorney. Assertion of § 520 as a defense to these garnishments is an improper attempt to use the statute as a sword and not the shield it was intended to be. Orrick v. Orrick, 269 S.W.2d 153 (Mo.App.1954).

Col. Cloyd next argues that when the court sustained his motion to quash garnishment No. 3 it was bound by principles of res judicata to sustain his motions to quash garnishments Nos. 2 and 4, because the issues and parties were identical.

Col. Cloyd’s motion to quash garnishment No. 3 was filed on Thursday, July 15, 1976, while his motion to quash garnishment No. 2 was still under submission. The two motions stated identical grounds for quashing the garnishments. In a letter dated the same date, the court notified Mrs. Cloyd’s attorney that a hearing would be held on Col. Cloyd’s motion at 2:00 P.M., Monday, July 19, 1976. Mrs. Cloyd filed no reply, and when she and her attorney failed to appear at the hearing, the court entered the following order:

“Defendant’s Motion to Quash called. Plaintiff or her counsel fail to appear. The Court being duly advised, Defendant’s Motion to Quash is GRANTED, and the Garnishment dated May 27,1976, and directed to ‘United States Attorney, U.S. Government Officer’ is quashed, and the Execution dated May 25, 1976 is also quashed.”

Subsequently, a fourth writ of garnishment was issued and Col. Cloyd moved that it be quashed on the same grounds as those alleged in the previous two motions. The motion was taken under submission until November 29, • 1976, when the court overruled both pending motions to quash garnishments.

The function of the doctrine of res judicata is to put an end to litigation arising out of the same subject matter between the same parties (and those in privity). Cantrell v. Caruthersville, 359 Mo. 282, 221 S.W.2d 471 (1954). Once an issue is fully heard and resolved by a court of competent jurisdiction, the court’s judgment is conclusive as to the law and facts decided. The successful party is then protected from the vexation of further litigation. Blue Ridge Shopping Center v. Schleininger, 432 S.W.2d 610 (Mo.App.1968). Before a former judgment may serve as a bar to subsequent litigation, however, that decision must, inter alia, be one on the merits of the controversy. Heagerty v. Hawkins, 173 S.W.2d 923 (Mo.1943); Se-Ma-No. Electric Co-op. v. Mansfield, 321 S.W.2d 723 (Mo.App.1958); Richter v. Frieden, 243 S.W.2d 783 (Mo.App.1951).

A judgment on the merits has been defined as “ ‘one rendered after argument and investigation and when it is determined which party is in the right, as distinguished from a judgment rendered upon some preliminary or merely technical point, or by default and without trial.’ ” Sheen v. Di-Bella, 395 S.W.2d 296, 304 (Mo.App.1965). See also Healy v. Atchison, Topeka & Santa Fe R. R. Co., 287 S.W.2d 813 (Mo.1956); State ex rel. National Lead Co. v. Smith, 134 S.W.2d 1061 (Mo.App.1939). Where the merits of the controversy have not actually been decided, a later suit on the same cause is not precluded. Bays v. Jursch, 340 S.W.2d 430 (Mo.App.1960).

We find no indication that the memorandum order entered by the court quashing garnishment No. 3 was on the merits. Rather, it appears to be a decision rendered as a result of Mrs. Cloyd’s default in appearance. No evidence was heard, no trial was had and no reply was filed to Col. Cloyd’s motion to quash. Under these circumstances the order quashing garnishment No. 3 is not res judicata. See Kansas City Power & Light Co. v. Riss, 319 S.W.2d 262 (Mo.App.1958); State ex rel. Green v. Brown, 224 Mo.App. 1197, 31 S.W.2d 215 (1930). As was stated in Davis v. Davis, 252 S.W.2d 521, 524 (Mo.1952): “The policy of consistency in rulings at different stages in a pending case is a good policy, but so extending the policy that error may not be corrected would not be a sound rule of law. The law does not require trial judges to refrain from correcting reversible error.”

Col. Cloyd next contends that the writs of garnishment should have been quashed because the original divorce decree is patently erroneous on its face. He alleges that the memorandum of judgment filed by Mrs. Cloyd misrepresented her child’s age by twenty years and that this misrepresentation influenced the court’s decision in awarding child support. We fail to see any relationship between the alleged misrepresentation and the purported error of the court in refusing to quash the garnishments. Mrs. Cloyd’s petition for divorce properly stated the child’s birthdate as March 17, 1951, as did her affidavit of statistics filed therewith. We cannot say that because a later unsigned memorandum for the clerk contained a clerical error that the judgment was erroneous on its face. Mrs. Cloyd does not seek to collect child support, to which she is not entitled, for an emancipated child. See Schulte v. Schulte, 140 S.W.2d 51 (Mo.1940); Sunderwirth v. Williams, 553 S.W.2d 889 (Mo.App.1977); Green v. Green, 234 S.W.2d 350 (Mo.App.1950). The amount of unsatisfied judgment listed in her request for garnishment is less than the accrued alimony alone. Col. Cloyd has suffered no prejudice as a result of the clerical error.

Col. Cloyd argues next that Mrs. Cloyd abandoned the garnishment, because she failed to propound interrogatories to the garnishee in accordance with Rule 90.12 V.A.M.R. That rule provides:

“The plaintiff may exhibit in the cause written interrogatories touching the property, effects and credits attached in the hands of any garnishee, and require such garnishee to make full, direct, and true answers to the same, upon oath, which interrogatories shall be filed at the return date of the writ, or within six days thereof.” (emphasis added)

Col. Cloyd argues that serving interrogatories on the garnishee is a mandatory prerequisite to a successful garnishment proceeding. In support of this argument, we have been referred to Beaufort Transfer v. Fischer Trucking Co., 357 F.Supp. 662 (E.D. Mo.1973), and Dunham v. Jerome, 226 Mo. App. 1214, 49 S.W.2d 637 (1932), where it was stated that failure to file timely interrogatories has the effect of abandoning the garnishment. But in those cases there was a controversy whether the garnishees were in fact debtors of the defendant. Further, no answers were filed by the garnishees.

The language of Rule 90.12 V.A. M.R. is directory as to necessity for filing interrogatories, rather than mandatory. The effect of neglecting to file them under Rules 90.12 and 90.13 V.A.M.R. is that the plaintiff, once the time for filing lapses, may not force the garnishee to file an answer. However, where, as here, the plaintiff has knowledge of the information typically sought in the interrogatories and where the garnishee in response to the summons voluntarily files an answer admitting its indebtedness to the judgment debtor, failure to file interrogatories is not commensurate with abandonment of the garnishment. It would be superfluous to require their submission in such a case. See Hilke v. Bank of Washington, 251 S.W.2d 963 (Mo.App.1952).

Finally, Col. Cloyd argues that the court had no jurisdiction over either the person of the garnishee or over the proceeds, because the garnishments were directed at and served on the United States Attorney. Col. Cloyd contends that to bestow the necessary jurisdiction on the court, the United States Air Force, as his employer, should have been served directly. We find the means of service employed to be sufficient.

Prior to January 1, 1975, the doctrine of sovereign immunity protected members of the military service from having their wages due from the United States government garnished to satisfy a state court judgment. With the enactment of 42 U.S.C. § 659, Congress waived the federal government’s immunity for the limited purpose of satisfying judgments against military personnel for alimony and child support. Popple v. United States, 416 F.Supp. 1227 (W.D.N.Y.1976); Morrison v. Morrison, 408 F.Supp. 315 (W.D.Tex.1976). By Executive Order 11881 (Oct. 3, 1975), the Civil Service Commission was directed to issue regulations which would facilitate appropriate service of process on executive agencies. While this case was pending in the circuit court, no such regulations had been issued. Further, our Supreme Court rules governing garnishment and service of process do not provide for service of the United States government. See Rules 43 and 90 et seq., Y.A.M.R. Thus, when process relating to these garnishments was served the parties were without guidance as to the proper method of service.

We believe that under the circumstances, service of the United States Attorney for the district in which the garnishment proceeding was commenced was sufficient to confer jurisdiction over the person and the res of the garnishee. See Popple v. United States, supra, in which the same means of service of process was used. Even though technically Col. Cloyd is employed by the Air Force, his salary is paid from the United States Treasury. A garnishment of any agency of the Executive Department is ultimately a garnishment of the federal treasury.

The judgment is affirmed.

SIMEONE, C. J., and KELLY, J., concur.

      . At all times since the filing of the divorce petition, through these garnishment proceedings, Col. Cloyd has been on active duty in the United States Air Force stationed outside of Missouri.

      . There is no indication in the record as to Ms. Morris’ position with the Air Force or her authority to sign for Col. Cloyd. It is admitted by Col. Cloyd in his affidavit that he received the summons and petition.

      . The garnishment requested October 10, 1975, will be designated as garnishment No. 1 throughout this opinion.

      . The garnishment requested January 6, 1976, will be designated as garnishment No. 2 throughout this opinion.

      . The garnishment requested May 11, 1976, will be designated as garnishment No. 3 throughout this appeal.

      . On July 22, 1976, Mrs. Cloyd filed a motion to rehear the motion to quash garnishment No. 3 alleging a lack of actual notice of the hearing. This motion, however, was not acted upon and must now be deemed denied. See Rule 78.06 V.A.M.R.

      . The garnishment requested September 3, 1976, will be designated as garnishment No. 4 throughout this opinion.

      . After the court’s order denying defendant’s motions to quash plaintiff served interrogatories on the United States as garnishee. The Air Force filed an answer to the fourth garnishment and later filed answers to the interrogatories.

      . Rule 55.28 V.A.M.R. Evidence on Motions. “When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter may be heard wholly or partly on oral testimony or depositions.”

      . In contrast to the memorandum order quashing garnishment No. 3 the court’s order overruling Col. Cloyd’s motion to quash Nos. 2 and 4 included a well reasoned and comprehensive discussion of the facts and law concerning each of the points raised in the motions.

      . The United States Attorney’s office reached the same conclusion and notified Col. Cloyd’s attorney, subsequent to the order of July 19 quashing garnishment No. 2, that it would advise the Air Force to honor the summons of garnishment.

      . See note 8, infra. Mrs. Cloyd did propound interrogatories in conjunction with garnishment No. 4. They were not, however, filed until more than thirty days after the return date and thus were not timely under Rule 90.12 V.A.M.R. Interrogatories relating to garnishments No. 1 through 3 were not filed.

      . “Notwithstanding any provision of law, effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States ... to any individual, including members of the armed services, shall be subject, in like manner and to the same extent as if the United States . . . were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments.”

      . Except as we note that Fed.R.Civ.P. 4(d)(4) —the procedural rule apparently followed in part in this case — provides for service of summons upon the United States by delivering a copy to the United States Attorney or assistant United States Attorney for the district in which the action was brought. This rule could serve as a guide only as it pertains solely to service of process in federal causes.

      . For a further explanation of the procedure and purposes of 42 U.S.C. § 659, see Coleman, Missouri Experience With Garnishments Under 42 U.S.C. 659, 30 J.Mo.Bar. 40 (1977).