author: SHANGLER, Presiding Judge.

text:
    Max Edward GLASS, Plaintiff-Appellant, v. Sandra GLASS, Defendant-Respondent.
    No. KCD 27855.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.

      Richard E. Watson, Jay W. Jensen, North Kansas City, for plaintiff-appellant.
    Don Witt, Witt & Shafer, Platte City, for defendant-respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The plaintiff Max Glass appeals the trial court denial of his petition to annul and enjoin enforcement of the alimony judgment previously entered as an incident to the decree which dissolved his marriage to Sandra Glass.

The cause was submitted for adjudication to the trial court on these stipulated facts:

Max Glass and Sandra Glass were divorced by the circuit court of Platte County after a long marriage. The decree obligated Max to pay Sandra $183 monthly alimony. One day after the decree became final, Max announced his engagement to marry his present wife, and confirmed that intention on December 10, 1972, by announcement in the Kansas City Star. The marriage took place on April 8, 1973.

Then, on January 19, 1973, [after the Glass divorce but before Max remarried] Sandra married one Wedding, but did not inform Glass of the event but, in fact, continued to accept alimony. Glass learned of her remarriage and discontinued payment of alimony according to the terms of § 452.-075, RSMo 1969, and Glass thereafter set-off $183 from child support payments. Sandra then petitioned the circuit court of Clay County to annul her marriage to Wedding on the contention that he had fraudulently concealed his alcoholism from her. Wedding defaulted to the petition and annulment was granted. Thereafter, Sandra made request that Max resume alimony payments. In the absence of compliance, she registered her Platte County divorce and alimony decree in the District Court of Johnson County, Kansas, as a foreign judgment, an action which led to the garnishment of Glass’ wages. The Kansas court stayed enforcement of the garnishment, however, and ordered Glass to pay the monthly alimony into its registry pending adjudication of the Platte County action to annul and enjoin enforcement of the alimony portion of the divorce judgment.

Then, on November 9, 1973, Glass brought a separate action in Clay County [No. 44204] to set aside the Wedding annulment decree entered by that court.

In the petition before us on review Glass alleged that by the Wedding remarriage § 452.075 operated to terminate his obligation for alimony to Sandra and renders that portion of the divorce judgment void. The trial court dismissed the petition and denied relief and also dismissed his action pending in Clay County to set aside the annulment decree of that court.

The contentions on appeal reduce to two: (1) that the remarriage of Sandra to Wedding completely terminated the Glass alimony obligation to Sandra by operation of § 452.075 and (2) the trial court of Platte County was without jurisdiction to dismiss the Glass petition to set aside the annulment decree then pending in Clay County.

The determination of the basic issue rests on the meaning of § 452.075:

When a divorce has been granted, and the court has made an order or decree providing for the payment of alimony and maintenance of the wife, the remarriage of the former wife shall relieve the former husband from further payment of alimony to the former wife from the date of the remarriage, without the necessity of further court action . . . [Emphasis supplied.]

The appeal must decide: Is the marriage between Sandra and Wedding, subsequently annulled on the ground of fraud, a remarriage within the terms of § 452.075 so as to relieve Glass from further payment of alimony under the Platte County divorce decree?

The parties argue the effect of the annulment on the alimony decree in terms of the dichotomy made by ancient equity between a void and voidable marriage. In contemporary terms, a void marriage results from lack of capacity to consent [Guthery v. Ball, 206 Mo.App. 570, 228 S.W. 887 (1921)] or because for other reasons the law allows the ceremony no validity [§§ 451.020 and 451.-030]. A voidable marriage, on the other hand, results from fraud, error, duress, or other imperfect consent. Henderson v. Ressor, 265 Mo. 718, 178 S.W. 175, 177[2] (banc 1915). The distinction made is that a void marriage is null from inception whereas a voidable marriage is valid until disaffirmed by decree. Jordan v. Missouri & Kansas Telephone Co., 136 Mo.App. 192, 116 S.W. 432, 434 (1909); Nelson on Divorce and Annulment (2d ed. 1945) §§ 31.01 et seq. A voidable marriage set aside by decree constitutes a judicial declaration that no marriage existed and so — by a fiction of equity — also becomes void from the beginning. Henderson v. Ressor, supra, l.c. 177[2]. This doctrine of relation back, however, operates selectively to protect innocent third parties. 4 Am.Jur.2d, Annulment of Marriage, § 93; Sleicher v. Sleicher, 251 N.Y. 366, 167 N.E. 501, 502[5] (1929, Cardozo, C. J.). As between the spouses inter sese, the effect of the law is the same whether the marriage is void or voidable, the event is treated as though it had never been. Sleicher v. Sleicher, supra, l.c. 502[1-3]; Flaxman v. Flaxman, 57 N.J. 458, 273 A.2d 567, 569 (1971); Nelson on Marriage and Annulment (2d ed. 1945) § 31.66; 4 Am.Jur.2d, Annulment of Marriage, § 93.

We are led to conclude that the traditional distinctions between a void and voidable marriage are largely irrelevant to the issue here: whether a subsequent marriage of a spouse later annulled revives the obligation of the other spouse to pay alimony under the divorce decree, or, on the other hand, constitutes a remarriage within the meaning of § 452.075 so as to relieve further obligation. The question must be determined from the terms of the enactment itself and the reasons of the lawmaker.

Although the issue comes for decision to a Missouri court for the first time, other courts have confronted the essential question. The issue has arisen in a congeries of forms, but typically under the provisions of separation agreements and statutes which have relieved — in one manner or another— the obligation of one spouse upon the remarriage of the other. The cases are collected at 45 A.L.R.3d 1033, Annotation: Alimony — Annulment of Later Marriage. Those of them which rest upon provisions of contract bear only by analogy; those which construe statutes are more nearly relevant. The two enactments which are most nearly equivalent to our own § 452.075 in terms and apparent purpose are § 139 of the California Civil Code and the New Jersey Statutes § 2A:34-25. Each statute provides that the alimony obligation of the former husband shall terminate on the remarriage of the divorced wife. In terms, the California law provides:

Except as otherwise agreed by the parties in writing, the obligation of any party in any decree, judgment or order for the support and maintenance of the other party shall terminate upon the death of the obligor or upon the remarriage of the other party.

It was contended in Sefton v. Sefton, 45 Cal.2d 872, 291 P.2d 439 (In bank 1955) that the annulment of her remarriage revived the obligation of her former husband for payment of alimony under the divorce decree. At issue was the meaning to be accorded remarriage adopted into the property settlement agreement from § 139 of the California Civil Code. The second marriage had been induced by fraud and thus, by traditional concepts, was voidable. She contended — as does Sandra Glass Wedding here — that by the doctrine of relation back the annulment effaced the second marriage altogether so that in the mind of the law she was not married and so was entitled to the benefits of alimony. Sefton responded that the courts use the relation back fiction to do justice, and not to injure innocent persons — such as the first husband who was not an actor in the second ceremony. The court held that the ceremony of remarriage terminated the alimony obligation under the property settlement agreement and the statute and rested this conclusion on three reasons of policy [l.c. 441]:

1. A former husband is entitled to rely on the remarriage ceremony of the former wife to recommit assets previously used for alimony obligations to her.
2. Unless the remarriage ceremony is taken as conclusive, any latent grounds for annulment between the remarried spouse and her new husband may remain suspended until the offended spouse seeks annulment, so that the former husband’s alimony obligations may never be certainly determined.
3.Even though both former spouses may be innocent, the more active of the two [the one whose remarriage is later annulled] should bear the loss from the misconduct of a stranger.

Berkely v. Berkely, 269 Cal.App.2d 872, 75 Cal.Rptr. 294 (1969) applied the Sefton rationale to a void remarriage to terminate the alimony right of the remarried spouse. The court expressly found void-voidable marriage distinction irrelevant to the purposes of the statute and held that the remarriage ceremony itself terminated the obligation for alimony.

New Jersey has given § 2A:34-25 the same effect as the California counterpart except that those provisions become operative only upon proof that the former wife has remarried:

If after the judgment of divorce the wife shall remarry, the court shall not make any order as to the alimony of such wife except that upon application of the former husband, on notice and on proof of the marriage of the former wife after the judgment of divorce, the court shall modify any order or judgment as to the alimony of the former wife by vacating and annulling any and all provisions in any such order or judgment, or both, directing the payment of money for the support of the former wife.

At first, the New Jersey court construed this statute in terms of the void-voidable distinction [Minder v. Minder, 83 N.J.Super. 159, 199 A.2d 69 (1964) — void remarriage of former wife does not terminate alimony from former husband — Sharpe v. Sharpe, 109 N.J.Super. 410, 263 A.2d 490 (1970)— voidable remarriage sufficient to terminate alimony] but then rejected the dichotomy altogether in Richards v. Richards, 139 N.J. Super. 207, 353 A.2d 141 (1976). Richards stated this rationale [l.c. 144]:

This court cannot see any reason to continue the disparate treatment of void and voidable marriages. In either case, the reasonable expectations of both the wife and the first husband are that the wife’s remarriage will be valid. The first husband should have a right to rely on that expectation. He should not be required to be forever “waiting in the wings” for a possible dissolution of the remarriage of his former wife. Certainly, when a former wife remarries, the divorced husband does not concern himself with any legal distinctions between void and voidable. She has married. He is free. In the interests of fairness, the last previous husband must be the source of the wife’s future financial security.

Other courts, on a parity of policy reasons, have concluded — even in the absence of statutory provision — that the annulment of the remarriage of the former wife does not revive the alimony obligation of the former husband. Keeney v. Keeney, 211 La. 585, 30 So.2d 549 (1947); Torgan v. Torgan, 159 Colo. 93, 410 P.2d 167 (1966); Beebe v. Beebe, 227 Ga. 248, 179 S.E.2d 758 (1971); Gaines v. Jacobsen, 308 N.Y. 218, 124 N.E.2d 290 (1954); Surabian v. Surabian, 362 Mass. 342, 285 N.E.2d 909 (1972); Chavez v. Chavez, 82 N.M. 624, 485 P.2d 735 (1971).

We conclude, therefore, that remarriage within § 452.075 refers to the ceremony of marriage and not to the status or relationship — valid, voidable or void — which actually results. The public policy which our enactment establishes rests on the same considerations of fairness which the California and New Jersey courts discern for their statutory counterparts: the right of the husband to rely on the apparent remarital status of the former wife, the lack of standing of the husband to challenge the validity of the remarriage, and the justness that— as between them — the former wife should bear the consequences of events she brought on. That the ceremony of remarriage operates absolutely to terminate the alimony obligation of the former husband appears conclusively from the terms of § 452.075 which gives effect to that law “without the necessity of further court action”.

The plaintiff, Sandra Glass Wedding, argues that these considerations do not apply to her because Max Glass announced and confirmed his plans to remarry long before her remarriage: Thus, she contends, Max could not have relied on her remarriage to his detriment nor did he recommit assets nor was otherwise harmed in any way by that event. She relies on Peters v. Peters, 214 N.W.2d 151 (Iowa 1974).

Peters held that the obligation of the former husband for alimony continued under a divorce decree where: he did not know of the remarriage of the former wife until four days before it was annulled, his personal financial affairs were unaffected, the remarriage of the former wife could not be annulled after cohabitation, and she had no right of support [under Texas law] from the second husband even upon divorce. The former wife had gone through the ceremony of marriage in Texas while intoxicated, the nuptial was not consummated, and she and her putative husband agreed the next day that the marriage should be annulled. These peculiar circumstances led to the decision that the obligation for alimony had been revived by the annulment of the remarriage status.

Neither the facts nor the theory of Peters aids Sandra as a precedent. Sandra remarried voluntarily, but Peters was so drunk she was incapable of consent. Even that consideration did not bear on the decision, for Peters gave no account to whether the remarriage was void or voidable on the premise that [l.c. 156] “[i]t is unlikely the parties and court consider that distinction . at the time a divorce decree is entered”. The decision rested, finally, on the effect to be given a divorce decree which provided that the husband pay to the wife alimony in gross over seventeen years. The court concluded that these amounts, although characterized as alimony for tax purposes, were intended to assure adequate support for the children. It was unlikely, therefore, that the divorce decree contemplated this support should be lost by the kind of remarriage shown by the evidence.

The contention of Sandra Glass for the revival of alimony does not rest [as in Peters] on the construction of an order for child support guised as an order for wife support, but on a statutory enactment which, in absolute terms and without need of judicial intervention, terminated that obligation upon her remarriage ceremony. We are not persuaded that the policy considerations the statute conveys do not apply to Glass merely because his intention to remarry was confirmed before the Wedding ceremony. A man under judgment to pay alimony to a former spouse is equally burdened by that obligation, whether sole or remarried, and cannot commit that sum to other needs and purposes. If sole, the release from that obligation could allow remarriage; if remarried, the start of a new family. In either event, the normal need to plan for security and well-being of person and family is sufficient reason to allow the former husband to rely and act on the apparent marital status of the former wife without requirement that he evaluate the legality of that status.

The plaintiff finally contends that legislative concern for the support of a divorced wife is a policy of such long history in this state that § 452.075 cannot reasonably contemplate that such a marriage as hers to Wedding should terminate the right of support from Glass. She sustains this position with the assumption that since Missouri has no provision to allow the former wife support from the second or annulled husband, § 452.075 intends that she receive her support from the first husband.

The law has concern for the support of a divorced wife and makes provision for it, formerly as alimony [§ 452.070 repealed by Laws 1973], and now as maintenance [§ 452.335, Laws 1973, p. 470]. Alimony is treated as the equivalent of the obligation for support which arises to the wife out of the marriage contract and, on principle, is abandoned when she obtains the same obligation for support by a second marriage contract. Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066, 1067[3] (banc 1920). This policy of concern for the support of the divorced wife is not diminished by § 452.-075. Rather the imperative of that statute that alimony shall terminate upon remarriage of the wife treats her subsequent marriage as her election to look to that source exclusively for her future support. See, Gaines v. Jacobsen, 308 N.Y. 218, 124 N.E.2d 290, 294 (1954); Keeney v. Keeney, 211 La. 585, 30 So.2d 549, 551[2] (1947). The plaintiff contends, however, that § 452.075 must be construed to ensure her the additional solicitude of the support from the first husband in the event the second marriage proves unavailing for that purpose. That insistence sounds an alien note. Woman has long since overcome the mythos of a gender born weak and in need of the special protection.

Although the law continues to impose upon the father primary responsibility for the support of the children of the marriage [§ 452.340], in all other respects the Dissolution of Marriage Act treats the spouses as equally responsible in their domestic relations. See, e. g., Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977), adopted concurrently. Thus, § 452.075 views the remarriage as the act of a responsible agent, not subject to recall because it proves to be mistaken. See, Herscher v. Herscher, 51 Misc.2d 921, 274 N.Y.S.2d 295, 298 (1966). It also recognizes that a man owes no duty to a woman who is the wife of another. To rest the effect of § 452.340 on the validity of the remarriage status would introduce another uncertainty into an already troubled area of domestic relations.

The failure of our legislature to provide the right of support from the annulled marriage to the former wife is consistent with the premise of the Dissolution of Marriage Act — and § 452.075 — that both spouses are of equal responsibility. We recognize that two jurisdictions — New York and New Jersey — which follow the rule we adopt also have enacted statutes which allow the court on annulment discretion to grant alimony to the wife as an incident of that procedure. The right to alimony in such circumstances, however, is not a concomitant of a rule which refuses to revive the alimony obligation of the first husband on the annulment of the remarriage of the former wife, but is a separate expression of domestic policy. Thus, the New Jersey courts [Flaxman v. Flaxman, 57 N.J. 458, 273 A.2d 567 (1971) and Sharpe v. Sharpe, 109 N.J.Super. 410, 263 A.2d 490 (1970)] announced the rule that the annulment of a voidable marriage does not revive alimony from the first husband under an agreement and decree which terminated the obligation on the remarriage of the wife several years before the enactment of the annulment — alimony statute. And the New York court in Gaines v. Jacobsen, 308 N.Y. 218, 124 N.E.2d 290, 292[1-2] (1954) adopted the same rule to the same question which arose in Connecticut and thus decided on the common law of New York as it stood before the enactment of the annulment — alimony statute.

We conclude that the remarriage of Sandra Glass to Wedding terminated her right to support from Max Glass.

The cause is reversed and remanded for proceedings consistent with this opinion.

All concur.

      . Thus, the children of a bigamous marriage are treated as legitimate offspring, Phillips v. Wilson, 298 Mo. 186, 250 S.W. 408, 412[4] and may inherit as legal heirs [§ 474.080, RSMo 1969; Nelson v. Jones, 245 Mo. 579, 151 S.W. 80, 84[12] (banc 1912)]; Bernheimer v. First Nat. Bank of Kansas City, 359 Mo. 1119, 225 S.W.2d 745, 751 [6-8] (banc 1949).

      . The fundamental distinction between a void and voidable marriage in our decisions is that a void marriage may be collaterally attacked after death to defeat the rights of the pseudo-spouse whereas a voidable marriage is open to attack only in the lifetime of both spouses. Henderson v. Ressor, 265 Mo. 718, 178 S.W. 175, 177[2] (banc 1915); Nelson on Divorce and Annulment (2d ed. 1945) § 31.21.


source: Caselaw Access Project

author: ANDREW JACKSON HIGGINS, Special Judge.

license: Public Domain

text:
    John BURNETT, D.O., et al., Respondents, v. David L. BARNES et al., Appellants.
    No. KCD 27865.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.
    Milton C. Clarke, Michael H. Maher, Kansas City (Swanson, Midgley, Gangwere, Thurlo & Clarke, Kansas City, of counsel), for appellants.
    Clem W. Fairchild, Philip B. Green, Kansas City (Linde Thomson Fairchild Lang-worthy & Kohn, Kansas City, of counsel), for respondents.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Declaratory judgment action by four physician-members of the Kansas City College of Osteopathic Medicine, a general not for profit corporation, against the Corporation and members of its Board of Trustees for determination that certain bylaw amendments purportedly adopted July 17, 1972, were adopted in excess of the power of the Board and for injunction against acting under such amendments. Appeal from declaratory judgment which, among other things, enjoined defendants from acting under said amended bylaws. The question, answered in the negative by the trial court, is whether the Board of Trustees of the Kansas City College of Osteopathic Medicine had the power to amend the bylaws of the Corporation to eliminate existing membership status in the Corporation of plaintiffs and others in their class. Affirmed.

The question and the case were submitted on a stipulation of facts.

Defendant Kansas City College of Osteopathic Medicine is a not for profit corporation under the General Not for Profit Corporation Law, Chapter 355, RSMo 1969, V.A.M.S. Individual defendants were, on July 17, 1972, duly elected members of the Board of Trustees of the Kansas City College of Osteopathic Medicine or its predecessor under the name Kansas City College of Osteopathy and Surgery. Plaintiffs and others of their class were, prior to July 17, 1972, recognized by the Kansas City College of Osteopathic Medicine and its Board of Trustees as having the status of members of the Corporation.

On July 3, 1916, the Kansas City College of Osteopathy and Surgery was incorporated by pro forma decree under Article X, Chapter 33, RSMo 1909, entitled “Benevolent, Religious, Scientific, Educational and Miscellaneous Associations.”

On October 27, 1925, the Articles of Agreement of the Kansas City College of Osteopathy and Surgery were amended by pro forma decree under Article XI, Chapter 90, RSMo 1919, “Benevolent, etc. Associations.” >

On February 18, 1946, the Articles of Agreement of the Kansas City College of Osteopathy and Surgery were further amended by pro forma decree under Article X, Chapter 33, RSMo 1939, entitled “Benevolent, etc., Associations.”

Pursuant to its Articles of Agreement, the Board of Trustees of the Kansas City College of Osteopathy and Surgery and its successor, the Kansas City College of Osteopathic Medicine, duly adopted bylaws, amended them from time to time, and all boards of trustees conducted the affairs of the Corporation pursuant to such bylaws from at least 1946 until July 17, 1972.

On May 1, 1964, an action in the nature of quo warranto was filed asking that the charters of the Kansas City College of Osteopathy and Surgery, granted by decree October 25, 1925, and of the Kansas City College of Osteopathy and Surgery, granted by decree February 18, 1946, be rescinded.

In May, 1965, the Kansas City College of Osteopathy and Surgery submitted to the circuit court Articles of Acceptance, together with an application praying that said Articles be approved pursuant to Section 355.020, RSMo (Laws 1953, p. 322, § 3), for the purpose of accepting and becoming a corporation organized under the General Not for Profit Corporation Law of the State of Missouri, Chapter 355, RSMo (Laws 1953, p. 322, § 1 et seq). On May 17, 1965, the court approved said Articles of Acceptance. On June 21, 1965, a Certificate of Acceptance was issued by the Secretary of State to the Kansas City College of Osteopathy and Surgery.

On November 27, 1970, the name of the Corporation was changed from the Kansas City College of Osteopathy and Surgery to the Kansas City College of Osteopathic Medicine.

Following amendment of the Articles of Agreement April 27, 1965, and issuance of the Certificate of Acceptance, no bylaws were formally adopted by the Board of Trustees until July 17,1972, when amended bylaws were adopted. Subsequent to June 21, 1965, the Kansas City College of Osteopathic Medicine and its predecessor, the Kansas City College of Osteopathy and Surgery, and their boards of trustees conducted the affairs of the corporation as they had since at least 1946, pursuant to the bylaws described supra, fn. 7.

On July 12, 1972, at a duly called special meeting of the Board of Trustees of the Kansas City College of Osteopathic Medicine, the Board resolved to adopt certain amended bylaws and further resolved that such amended bylaws be considered and adopted at the next regular meeting of the Board of Trustees to be held July 17, 1972.

On July 17, 1972, the Board of Trustees amended the bylaws of the Kansas City College of Osteopathic Medicine.

Plaintiffs (recognized prior to July 17, 1972, as members of the Kansas City College of Osteopathic Medicine by virtue of graduation from the college), have not, subsequent to adoption of the amended bylaws, July 17,1972, been recognized as having the status of members of the Corporation by the Corporation and its Board of Trustees.

Following resolution of the stated question against defendants, the trial court enjoined defendants from acting under the bylaws adopted July 17, 1972, insofar as said bylaws and any acts thereunder are inconsistent with prior provisions for membership; amended the bylaws adopted July 17,1972, to conform to bylaws previously in existence on matters pertaining to membership and the rights of members; and permitted subsequent amendments to the bylaws so long as they do not eliminate membership in the Kansas City College of Osteopathic Medicine, a corporation.

Appellants contend the court erred (I) in determining that the July 17, 1972, bylaws eliminating membership in the corporation were inconsistent with the Articles of Incorporation, contrary to the provisions of Sections 355.090 and 355.100, RSMo 1969. Their argument, in sum, is that the primary purpose of the corporation is to educate and train doctors of osteopathy; that the July 17, 1972, bylaws are not inconsistent with that or any other purpose of the corporation; that the corporation from its inception granted the Board of Trustees discretionary power to admit new members as it might deem proper; that in 1972, the Board in its discretion determined that members such as plaintiffs were no longer required, and the court should not interfere with the Board’s actions.

Appellants contend the court erred (II) because the Board of Trustees which created plaintiffs’ membership status retained the power to eliminate that status through amendment of the bylaws. The argument is that plaintiffs became members of the Corporation solely as a result of the bylaws adopted by the Board of Trustees in 1946; that the relationship was expressly subject to unilateral change by the Board through the amendment process, and the court should not intervene in the Board’s exercise of its reserved right to alter the relationship; that such action was expressly authorized by the bylaws existing in 1972 and was not inconsistent with the Corporation’s charter or history; that the Board is empowered by Section 355.100, RSMo 1969, and by its charter to adopt its initial bylaws, and by Section 355.090, RSMo 1969, to amend its bylaws.

The trial court supported its resolution of the stated question and the judgment with an opinion. Review of the case as prescribed in Rule 73.01, V.A.M.R., shows that the opinion is also dispositive of the case on appeal. Subject to modifications conforming it to the style of the statement, it is adopted as the decision and opinion of this court, viz:

In the original Articles of Agreement of Kansas City College of Osteopathy and Surgery (now Kansas City College of Osteopathic Medicine), dated May 19, 1916, the purpose clause (Article Third) did not mention “members”; however, Article Fifth, the powers clause, required the Board to “provide for the admission of new members.” See fn. 2.

In April, 1965, when the Kansas City College of Osteopathy and Surgery adopted Articles of Acceptance under the General Not for Profit Corporation Act (Chapter 355, RSMo 1959), the original Articles of Agreement were amended and restated to, among other things, eliminate the powers clause and expand the purpose clause. One of the stated purposes is “to admit new members into this association.” See fn. 9. The Articles of Acceptance show that the meeting at which the Articles of Acceptance were adopted was attended by 235 members who were entitled to vote, who unanimously voted to adopt the Articles of Acceptance. See fn. 9.

On July 17, 1972, the Board of Trustees amended Article III of the bylaws of the Kansas City College of Osteopathic Medicine to eliminate membership and provide for a self-perpetuating Board of Trustees. See fn. 10.

Section 355.090, RSMo 1969, V.A.M.S., provides that each corporation organized under the General Not for Profit Corporation Law shall have power “to make and alter bylaws not inconsistent with its articles of incorporation or with the laws of this state, for the administration and the regulation of the affairs * * Section 355.100, RSMo 1969, V.A.M.S., provides: “The initial bylaws of a corporation shall be adopted by its board of directors. * * * The bylaws may contain any provision for the regulation and management of the affairs of a corporation not inconsistent with law or the articles of incorporation.” In 18 C.J.S. Corporations § 189, page 604, it is stated: “Void also is any by-law, contrary to the express or implied provisions or limitations of the charter, articles of association or incorporation, or governing statute, in any way changing the rights or liabilities of the * * * members.”

Regardless of arguments that, as a practical matter, members of the Corporation have little, if any, actual power or voice in the affairs of the Corporation and that financial contribution was not a prerequisite to membership, the court cannot ignore an express purpose of the articles of agreement or incorporation, i. e., “to admit new members into this association.” See again fn. 9. To permit this charter purpose to be deleted or repealed by the purported bylaw amendment of July 17, 1972 (fn. 10), is to permit adoption of a bylaw inconsistent with the articles of incorporation contrary to provisions of Sections 355.090 and 355.-100, supra.

The wisdom and desirability of the action of the Board of Trustees in eliminating membership is not before the court, nor is it appropriate to comment gratuitously on the merits of a self-perpetuating board of trustees versus a board selected, more or less, by a membership.

The Board of Trustees of the Kansas City College of Osteopathic Medicine exceeded its power when it adopted the bylaw of July 17, 1972, eliminating membership in said general not for profit corporation. To the extent the bylaws, adopted July 17, 1972, are inconsistent with this opinion, they are void and of no force and effect.

As previously indicated, the foregoing opinion of the trial court is adopted as dispositive of the issue on appeal.

In addition, this court notes the citation of State v. Ozark Transmission District, 409 S.W.2d 71 (Mo. banc 1966), Purdy v. Bankers’ Life Ass’n, 101 Mo.App. 91, 74 S.W. 486 (1903); Westlake Hospital Ass’n v. Blix, 13 Ill.2d 183, 148 N.E.2d 471 (1958); Schrick v. St. Louis Mutual House Bldg. Co., 34 Mo. 423 (1864); State ex rel. Schrempp v. Grand Lodge A. O. U. W., 70 Mo.App. 456 (1897), and 8 Fletcher, Private Corporations, §§ 4156, 4198, in appellants’ brief on appeal. Such authorities have been considered; they do not persuade a different result on this appeal.

Judgment affirmed.

All concur.

      . Section 3441, RSMo 1909, provides: “Every corporation created under this article shall make by-laws for its government * * * and therein provide, unless such provision is already made in its charter, for the admission of new merpbers * *

      . The Articles of Agreement filed by the original members provide “Fifth” that corporate power is “vested in the Board of Directors, to be selected by the members of the association. Said Board * * * shall make and adopt By-laws for the government and support, and the management of the property of the corporation, and provide for the admission of new members * *

      . Section 10273, RSMo 1919, is the same as Section 3441, RSMo 1909.

      . The Amended Articles of Agreement provide in Article III that the association is formed “for the following purposes * * * to make bylaws not contrary to the Constitution or laws of the State * * * for the government, support and management of the property and schools of this association * * * to admit new members into this association * * * and in Article V that “corporate power and * * * affairs of this association shall be under the care and control of the Board of Directors, to be selected by this association. Said Board * * * shall make and adopt by-laws * * *, and provide for the admission of new members * *

      . Section 5446, RSMo 1939, is also the same as Section 3441, RSMo 1909.

      . The Amended Articles of Agreement provide in Article IV that the association is formed “for the following purposes * * * to admit new members * * *.”

      . The bylaws, as last amended April 16, 1962, provide: “Each and every person who shall have graduated, or who shall in the future graduate, from the Kansas City College of Osteopathic Medicine with a degree granted by said College, and each and every person who shall in the past, or who shall in the future, be duly elected to the Board of Trustees * * * and shall serve as such Trustee, and each and every person who has in the past, or shall in the future, be duly elected an officer * * * and shall serve as such shall be members of this Corporation.”

      . The record does not show any resolution of this action.

      . Article Two of the Articles of Acceptance shows that the members of the corporation met April 27, 1965; 235 members were entitled to cast 235 votes; and 235 votes were cast for two resolutions and no votes were cast against the resolutions. The first resolution was for acceptance of the provisions of Chapter 355, RSMo 1959; the second was for amendment of the Articles of Agreement in the manner provided by Chapter 355, supra. Article Sixth of the Articles of Agreement as thus amended provides: “This corporation is formed for the following purposes * * * : To promote the study of the theory and practice of osteopathy * * *; to establish hospitals * * *; to make by-laws not contrary to the Constitution or laws of the State * * * for the government, support and management of the property * * *; to change any and all by-laws * * *; to admit new members into this association * *

      .Article III of the bylaws, as amended July 17, 1972, provides: “The Corporation, effective with the adoption of these Amended Bylaws, shall have no members and in lieu thereof shall have only a self-perpetuating Board of Trustees, as authorized by” Section 355.105, RSMo 1969.

      . The precedessor text, 14 C.J. § 460, p. 362, was cited and applied in Murphy v. Richardson Dry Goods Co., 326 Mo. 1, 31 S.W.2d 72, 75 (banc 1930), for the proposition that articles of incorporation prevail over bylaws in case of conflict.

      . If the matter is deemed worthy of further consideration, those interested may wish to examine provisions for amendment of articles of incorporation in Chapter 355, V.A.M.S.


author: PER CURIAM.

text:
    Brenda M. COLE, Respondent, v. John EVANS, Appellant.
    No. KCD 28051.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.

      A. J. Falcone, James H. Thompson, Jr., Kansas City, for appellant.
    Arthur J. Kase, Rubins, Kase & Rubins, Inc., Kansas City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   PER CURIAM.

This is a personal injury action arising from an automobile collision. A jury found in favor of the plaintiff and awarded her damages in the amount of $8,125.00. Defendant has appealed.

No claim is made by defendant on appeal that plaintiff failed to make a submissible case or that the amount of damages awarded was excessive. For this reason the facts will be tersely synopsized. Plaintiff parked her automobile, facing south, parallel to the west curb of Fremont Street, in Kansas City, Missouri, and went to her place of employment. Fremont Street runs north and south. Plaintiff returned to and entered her automobile, looked to the rear, saw no vehicles coming, and started pulling away from the curb. While in the process of straightening her car so as to proceed south on Fremont Street, she was sideswiped by a southbound automobile driven by defendant. Defendant’s automobile laid down skidmarks 124 feet in length leading up to the point of impact and extending 66 feet beyond the point of impact to where it came to a final stop. Plaintiff was rendered unconscious by the impact and was removed from the scene by ambulance. Medical testimony disclosed that plaintiff sustained a severe concussion with post-con-cussional headaches, dizziness, and an acute cervical sprain, which would persist in future discomfort and disability.

Plaintiff pleaded and submitted her case to the jury on primary negligence, i. e., that the defendant drove and operated his automobile at an excessive rate of speed. Defendant pleaded and had submitted to the jury his affirmative defense of contributory negligence, i. e., that plaintiff failed to keep a careful lookout or knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped.

All of the evidence presented to the jury came from the plaintiff and various witnesses whom she called — defendant did not take the stand or call any witnesses on his behalf.

Defendant urges on appeal that the judgment below should be reversed and the case remanded for a new trial because: (1) “It Was Prejudicial Error By The Circuit Court in Permitting the Opinion Testimony as to the Speed of Appellant by Officer McGill Over Appellant’s Objection Because Respondent Failed to Make a Proper Foundation for the Opinion Expressed by Officer McGill and that the Hypothetical Question Propounded Failed to Include Facts Material to The Evidence in this case.” and (2) “The Circuit Court Committed Plain Error in Submitting Instruction Number 7 to the Jury Because the Instruction was Not in Conformity with M.A.I. and Further that the Instruction Prejudicially Inferred that the Burden of Proof was on the Appellant Throughout the Case.”

Regarding defendant’s first point, the transcript discloses that the defendant timely objected during trial to a hypothetical question, put to Officer McGill regarding the speed of defendant’s automobile, on the ground that it omitted relevant facts disclosed by the evidence. Defendant failed, however, to include in his objection or otherwise point out to the trial court the relevant facts which he claimed were omitted. Defendant’s failure to do so rendered his objection insufficient and the trial court did not err in overruling it. Scheipers v. Missouri Pac. R. Co., 298 S.W. 51, 54 (Mo.1927); Brooks v. Travelers Insurance Company, 515 S.W.2d 821, 824 (Mo.App.1974); Glowczwski v. Foster, 359 S.W.2d 406, 411 (Mo.App.1962); and Denney v. Spot Martin, Inc., 328 S.W.2d 399, 402 (Mo.App.1959).

Regarding defendant’s second and final point, he made no objection to the presently challenged instruction (burden of proof) during trial or in his motion for a new trial. Therefore, defendant failed to preserve for appellate review any issue concerning the challenged instruction. Rule 70.02, Rule 78.07; Rule 84.13(a); Bower v. Hog Builders, Inc., 461 S.W.2d 784, 797 (Mo.1970); Erny v. Revlon, Incorporated, 459 S.W.2d 261, 267 (Mo.1970); Boten v. Brecklein, 452 S.W.2d 86, 93-4 (Mo.1970); and Dati v. Scott, 509 S.W.2d 196, 197 (Mo.App.1974). Notwithstanding his failure to preserve for appellate review the matters raised in his second point, defendant implores this court to review them as plain error under rule 84.13(c). Any inclination to do so is initially thwarted by the fact that defendant has failed to properly present the matters for review even under the plain error rule because the challenged instruction is nowhere to be found in defendant’s brief. Rule 84.04(e) provides that “[i]f a point relates to the giving, refusal or modification of an instruction such instruction shall be set forth in full in the argument portion of the brief. . . . ” Failure to comply with Rule 84.04(e) “carries the penalty of refusal to review." Pauling v. Rountree, 412 S.W.2d 545, 548 (Mo.App.1967). See also Bremer v. Mohr, 478 S.W.2d 14, 19 (Mo.App.1972). Rule 84.04(e) is applicable to and has been rigidly enforced in criminal cases. State v. Larkins, 518 S.W.2d 131, 135 (Mo.App.1974); and State v. Mesmer, 501 S.W.2d 192, 197 (Mo.App.1973). There is no reason to apply it less rigidly in civil cases.

Defendant, from trial to appeal, has displayed a flagrant disregard for every rule of civil procedure appertaining to preservation and presentment of his second and final point. Yet, “on the final lap”, defendant attempts to rectify his persistent dereliction by seeking review of his second and final point under Rule 84.13(c), the plain error rule. This rule declares that plain errors affecting substantial rights may be considered on appeal, even though defectively preserved for review, if a “manifest injustice” or a “miscarriage of justice” has resulted. After reviewing the evidence in this case in light of the totality of the circumstances, this court finds no reason to invoke the plain error rule. Rule 84.13(c) was never intended to be trivialized as a procedural tool to excuse total and complete disregard of all applicable rules of civil procedure. Invocation of the plain error rule in this case would make a mockery of the rules of civil procedure. Doing so would serve only to unjustly reward the defendant and unjustly burden the plaintiff with the expense and uncertainty of another trial. In this perspective, application of the plain error rule, in a sense, would result in inverse “manifest injustice” or in an inverse “miscarriage of justice”.

Judgment affirmed.


author: PER CURIAM:

text:
    Gerald Lewis HOERSCHGEN, a minor, by Edna Hoerschgen, his duly appointed next friend, Appellant, and Francis Hoerschgen and Edna Hoerschgen, parents of Gerald Lewis Hoerschgen, Plaintiffs, v. George Henry DUNNAVANT, a minor, by Kelly Pool, his duly appointed guardian ad litem, Respondent.
    No. KCD 28156.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.

      William A. Seibel, Jefferson City, for appellants.
    Kelly Pool, Jefferson City, for respondent; Hendren & Andrae, Jefferson City, of counsel.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   PER CURIAM:

Appellant Gerald Lewis Hoersehgen had a judgment upon verdict for $250.00 for personal injuries in an automobile accident upon Count I of the petition. His parents, plaintiffs above, received a verdict of $1,000.00, but the trial court granted them a new trial as to damages only upon the ground that the verdict of the jury was grossly inadequate. Appellant contends that he too should have had a new trial because of an inadequate award of damages, and makes also three contentions that the court erred in refusing to declare a mistrial and discharge the jury. These three contentions are set forth in appellant’s first three points and then are grouped in the fourth point by which it is contended that the errors were deliberately done by experienced trial counsel, resulting, cumulatively, in a grossly inadequate verdict.

During cross-examination of the librarian of the University of Missouri Medical Center, this occurred: “Q. Now, this form contains certain abbreviations on it, I guess they're abbreviations, referring down to approximately the middle of the page you see the words ‘BC’, what do those letters stand for? A. Blue Cross. Q. And there’s next — MR. SEIBEL: Now, if the Court please, I am going to object to that. It has no bearing upon the issues in this case.” The court sustained the objection and granted the request that the jury be instructed to disregard the question and answer for any purpose. After the cross-examination was finished, appellant asked that the jury be discharged, which was overruled. It is doubtful that the question had any effect upon appellant’s claim as he did not ask for reimbursement for medical expenses. The collateral source rule would apply only to appellant’s parents’ claim where they asked for appellant’s medical expenses. Nevertheless, if the question and answer were improper as to appellant, the court took corrective action in sustaining the objection and instructing the jury to disregard the question and answer. Discretion is vested in the trial court as to the sufficiency of the corrective action taken. Cotton v. Pyle, 400 S.W.2d 72, 76[2-5] (Mo.1966), where it was said also that the trial court is in a better position to determine if verdict has been obtained through “ ‘sharp practice.’ ” The matter arose and was disposed of during the trial, and it was considered in the motion for new trial as in the Cotton ease. No prejudicial error appears.

The second contention of error has to do with cross-examination of appellant as to criminal offense convictions in Cole County, Missouri, which he first acknowledged to have been possession of alcoholic beverages, six or seven times, but he later clarified the convictions to have been in city court, not the magistrate-court. Appellant says the cross-examination violated the rule in Commerford v. Kreitler, 462 S.W.2d 726, 733[4-6] (Mo.1971), that violations of city ordinances are not admissible as proof of the commission of a crime contemplated by § 491.050, RSMo 1969, as affecting credibility. No proper objections were made as to present the matter to the trial court for a ruling under the Commerford case, or to preserve it for review. The first objection was “I object to that” which is insufficient under Anderson v. Welty, 334 S.W.2d 132 (Mo.App.1960). The second objection was “If the court please, I am going to object to any — such evidence has no bearing upon the issues in the case.” Heinbach v. Heinbach, 274 Mo. 301, 202 S.W. 1123, 1127[7-9] (1918), held a similar objection, without specific grounds being stated, to preserve nothing for review. The same is true of appellant’s further objections. The trial court advised counsel for appellant that if he had made a proper first objection on the grounds that the convictions were for violations of city ordinances it would have been sustained. But what cured any error injected into the case, which was brought about by the obvious confusion of appellant as to what convictions he had, was this strong admonition to the jury: “THE COURT: Ladies and Gentlemen of the Jury, a conviction of a crime can be inquired into on cross-examination of a witness, but a violation of a City Ordinance is not a conviction of a crime; so the occurrences which this witness had admitted to or not the proper evidence under the Missouri Rules; therefore, you will disregard those for any purpose.” The court did not err in refusing to grant a mistrial in view of the admonition. Cotton v. Pyle, supra.

Point III is likewise ruled against appellant, which point is on the same basis as contended above, except that he contends that injection of ordinance convictions was done deliberately by counsel, and the court’s admonition did not cure it. There is no evidence that counsel acted deliberately. To the contrary, considering the posture of the matter in appellant’s pre-trial disposition, and at the beginning of his cross-examination, where there was no suggestion that the convictions were for inadmissible violations, the only conclusion is that counsel acted in good faith.

In Point IV, appellant contends that the court erred in overruling his motion for new trial on the issue of damages only because the verdict was against the weight of the evidence, and the uncontradicted evidence of Dr. Litton regarding a requirement of $500.00 for removal of ankle pins, not to mention permanent disability, scar tissue and pain and suffering. It is noted that appellant did not ask for medical expenses, past and future, in Count I of the petition. His parents did that in Count II, and they were awarded a new trial. Thus, the claim for $500.00 for removal of ankle pins will not be considered.

Dr. Lynn Litton, M.D., an orthopedist, saw appellant on July 11, 1971, at the University of Missouri Medical Center. He found a swollen, discolored right eye with a 4 centimeter laceration on the upper lid. X-rays revealed a fracture of the right orbital floor (the bottom of the eye socket), and two broken bones in the ankle. The ankle was operated upon and two pins were placed across the outside fracture, a screw was placed on the inside ankle joint. The pins were attached to malleable wire which was tightened thus holding the fracture immobile. According to the doctor, the pins and screw should have been removed because they are tender whenever the ankle is bumped and it usually hurts. Immediately after the operation the ankle is swollen, painful, tender and sore, and the swelling subsides. The doctor thought appellant was in a cast about 8 weeks, then being on crutches. After the cast is off, it was painful to walk on the foot right away, and it might average a month or so in soreness, a total period of disability of 5 or 6 months. “After this they continue to have some discomfort, particularly when the pins are bumped, when they are on their feet for long periods of time it might have to be painful and maybe swell a little bit.” The doctor would not think there would be any disability in the ankle after the period of disability by virtue of removal of the pins. On cross-examination, the doctor testified that appellant was advised to have the pins taken out March 14, 1973, but he had not contacted the doctor or the medical center since that date.

Appellant acknowledged that he was able to play football and wrestle. There was evidence that he swam, and had been in fights. All of these activities took place after the accident. Although being told, he had never taken steps to have the ankle pins removed. There was no evidence of loss of income. Although there was evidence of scarring about the eye and on the nose, these were visible to the jury. Other than the scarring there was no evidence of permanency of injuries. Nothing came into the case which was not relevant either to the issue of appellant’s contributory negligence or the nature and extent of his injuries, so there is nothing in the course of the trial which could be a basis for a finding of bias and prejudice in the jury’s evaluation of his damages. The amount of damages is primarily for the jury, and its broad discretion in fixing the amount of the award is conclusive on appeal, especially where the verdict, as here, has the approval of the trial court as evidenced by its overruling of the motion for new trial. Boehmer v. Boggiano, 412 S.W.2d 103, 110, 111 (Mo.1967). See also Homeyer v. Wyandotte Chemical Corporation, 421 S.W.2d 306 (Mo.1967), where an award of $350 was not set aside on appeal as being inadequate. Point IV is overruled, and what has been said disposes of the cumulative error contention of Point V.

The judgment is affirmed.


author: TURNAGE, Judge.

text:
    Mel GREGG, d/b/a Gregg Decorating Company, Respondent, v. Carl F. JOHNSTON, Appellant.
    No. 28221
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.
    Kranitz & Kranitz, Ronald M. Sokol, St. Joseph, for appellant.
    Martin M. Bauman, St. Joseph, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   TURNAGE, Judge.

Mel Gregg obtained a judgment against Carl Johnston and a mechanic’s lien on certain property owned by Johnston by default. In this action Johnston filed a petition in which he requested the court to set aside the default judgment and appeals following the order of the court which denied relief.

On this appeal Johnston claims the evidence shows the default was taken against him as a result of surprise and mistake which was not Johnston’s fault, and that Gregg admitted the grounds asserted in Johnston’s petition because Gregg did not file an answer to such petition. Affirmed.

On May 21,1974, Gregg filed a petition in the circuit court of Buchanan County against Johnston in which he prayed for a judgment in the total sum of $3,075.25 and for such judgment to be declared a mechanic’s lien on the land owned by Johnston on which labor and material had been expended by Gregg. Johnston failed to file any pleading in response to this suit and on July 29, 1974, Gregg appeared with his attorney and obtained a judgment by default.

On April 24, 1975, Johnston filed a petition for equitable relief to set aside the default judgment. In his petition Johnston alleged he had a good and meritorious defense to the cause of action because of defective workmanship. He also pleaded that he failed to appear without any negligence on his own part because he advised Gregg’s counsel of his defense and entered into negotiations with such counsel in an effort to settle the matter. He further alleged Gregg’s counsel told him no judgment or other action would be taken until negotiations had ceased or broken down and that neither of these events had occurred prior to the entry of the judgment. Johnston further alleged Gregg’s counsel deceived him into not appearing by continuing negotiations with no intention of actually settling the cause.

Gregg did not file an answer in response to this petition, but the matter was heard by the court without objection to the absence of an answer.

The only witness at the hearing was Johnston himself. He testified he received the petition and summons sometime in June, 1974. He stated he contacted Mr. Bauman, attorney for plaintiff Gregg, “probably within a month or so” after he received the pleading. He stated he advised Bauman the work Gregg had done was unsatisfactory and he felt Gregg actually owed him money instead of his being indebted to Gregg. Johnston testified Bau-man told him to “come up with a figure or let him know what it would amount to or what the figures would be if I would settle.

Johnston stated he did not get any figures until the latter part of August, 1974. He further stated Bauman did not give him any time limit within which to come up with a figure nor was he advised by anyone concerning any date the action Gregg had filed would be heard in court.

At the conclusion of the hearing, Johnston’s counsel advised the court there had been no showing of fraud but he was relying upon the grounds of “surprise, accident or mistake without fault of the movant.”

On this appeal Johnston relies upon Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672 (1908); J. R. Watkins Company v. Hubbard, 343 S.W.2d 189 (Mo.App.1961) and Reis v. LaPresto, 324 S.W.2d 648 (Mo.1959). In Cross and Watkins the court held a default judgment would be set aside when it was shown the default was obtained in violation of a promise made by an attorney not to take a judgment. In this case there was no evidence to show any agreement on the part of Bauman not to take a judgment nor is there any evidence to show the default judgment taken in this case was in violation of any statement or agreement Bauman did make. It is interesting to note the proof introduced fell far short of the allegations made in the petition. While the petition alleged the violation of an agreement and promise by Bauman, the proof did not show such agreement or violation. Thus the rule announced in Cross and Watkins does not aid Johnston in this case.

Johnston also states he is relying upon the doctrine announced in Reis at 324 S.W.2d 654. He does not further elaborate as to the precise statement on that page which controls this case, but it must be assumed he was referring to the following statement: “False representations by a party to his adversary that he need not file any pleading while they negotiate for a settlement could support an action in equity to set aside a judgment obtained without notice and in violation of those representations.” However, as pointed out above, the evidence in this case did not show any false representations nor the violation of any promise or agreement. The court in Reis continued in the very next sentence after that quoted above, by stating: “But, when no such representations were made either in fact or by implication, then it is the defendant’s responsibility to look after his litigation, and if he negligently fails to do so he is in no position to seek equitable relief from the courts. Mutual Casualty Co. of Missouri v. Sansone, Mo.App., 17 S.W.2d 558[2]. One who has been served personally with a summons must use diligence to prevent a default judgment against him, . . . .” 324 S.W.2d 648, 654.

Since Johnston failed to prove any false representation, either express or implied, he proved no grounds for relief. The court in Reis further forecloses Johnston’s claim for relief when it points out that if one negligently fails to look after his litigation he is in no position to complain to the courts. Here the evidence simply showed Johnston made contact with Bauman and promised to get some figures and then delayed at least two months before doing anything further. In that circumstance, he did not show himself to be free from negligence so as to be entitled to relief from the judgment. See Falcon Enterprises, Inc. v. Precise Forms, Inc., 509 S.W.2d 170, 175 (Mo.App.1974).

Because Johnston did not show any grounds for relief it is immaterial that he may have had a meritorious defense to assert.

Johnston raises one other matter which requires attention. He claims his petition was a pleading to which Gregg was required to file a responsive pleading under Rule 55.08. In Watkins this court held the filing of a “motion” to set aside a default was in fact a petition which was a separate suit in equity. In this case Johnston designated his pleading as a “petition for equitable relief to set aside default judgment.” Gregg contends the action filed by Johnston was actually a motion which simply continued the original action filed by Gregg, and, therefore, no answer was required. Under the holding in Watkins, Gregg’s contention is erroneous and an answer was required.

However, Johnston proceeded to trial without making any objection to the failure of Gregg to file an answer. Even though the provision requiring an answer is mandatory, “the enforcement of the provision is waived, unless the opposing party invokes the enforcement by timely and proper action.” Bailey v. Bailey, 317 S.W.2d 630, 632 (Mo.App.1958). Thus Johnston waived the enforcement of the requirement that an answer be filed.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Danny R. McINTOSH, Appellant.
    No. KCD 28225.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Presiding Judge.

By information defendant was charged with robbery in the first degree by means of a dangerous and deadly weapon. He was tried by a jury and convicted. Pursuant to Rule 27.04 the court reduced the fifteen year sentence assessed by the jury to a term of seven years imprisonment. Defendant timely appeals, claiming that the trial court erred in overruling his motion to suppress pretrial and in-court identification by one witness. We affirm.

A brief summary of the facts is sufficient since defendant does not question the adequacy of the evidence to sustain his conviction. Ray’s Over 21 Bookstore located in Kansas City, Missouri, was robbed on December 30, 1974, during daylight hours by two black men. Mildred White, the witness whose identification testimony is challenged, was working at the counter of the bookstore when the robbery occurred. White initially observed the robber subsequently identified as the defendant face to face at a distance of eight to ten feet. Then, with a gun in his left hand, the robber grabbed White and told her to lie on the floor. She observed the robbers standing by the cash register while she was lying on the floor. Following the robbery between $140 and $160 was missing from the cash drawer.

White provided the police with a detailed description of the appearance and clothing of both robbers. During the next seven weeks the police showed her at least two sets of photographs. From one of the sets of photographs, White tentatively selected defendant’s picture, cautioning the police that she would have to see him in person to make a positive identification. Approximately two months after the robbery she positively identified defendant as one of the robbers when she viewed a lineup composed of four black males of similar age and physical appearance.

At one point during these identification procedures, the police suggested to White that Dennis Burns was one of the robbers. White could not positively identify Burns either by photograph or lineup. The police never made any suggestions to her concerning defendant. At trial, White positively identified defendant as one of the robbers. The trial court overruled defendant’s motion to suppress. Defendant’s claim of error was preserved for appellate review and specifically attacks the above photographic identification procedures as constitutionally impermissible and unduly suggestive.

The cardinal requisite in any criminal trial is that the evidence show that defendant is the person who committed the offense. State v. Murphy, 508 S.W.2d 269, 274 (Mo.App.1974). Despite the hazards of initial identification by photograph, the United States Supreme Court refused to apply a per se exclusionary rule for identification which utilizes pictures. Rather, that court held that, “. . . convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

Each case must be decided on its own facts and the validity of the identification evaluated in the light of the totality of circumstances. Necessarily, consideration must be given to (1) the presence of an independent basis of identification, (2) the absence of any suggestive influence by others, and (3) positive courtroom identification. State v. Ealey, 515 S.W.2d 778, 779-780 (Mo.App.1974) and cases cited therein.

The issue of unduly suggestive identification procedures has been raised again and again in the Missouri appellant courts. Repeatedly, our courts have held similar procedures permissible where an independent basis for identification is present; i.e., where the victim is able to view his assailant at the crime and is able to describe his appearance and clothing, the victim has an independent source and basis for identification of defendant and any taint by suggestion is effectively overcome by such independent basis. State v. Mitchell, 491 S.W.2d 292, 296 (Mo. banc 1973). Indeed, State v. Conley, 541 S.W.2d 4 (Mo.App.1976) presented the same issue on similar facts to this court. In Conley, four black men robbed a drive-in restaurant in daylight hours without using disguises or masks. The cashier had a clear view of defendant’s face for approximately five minutes. She examined many photographs and attended many lineups and after two months identified defendant as one of the robbers. Additionally, the evidence suggested that the police may have told the witness either after photographic identification or after lineup identification that defendant had been implicated. Nevertheless, this court held that the totality of circumstances did not present a substantial likelihood of irreparable misidentification.

The evidence in the instant case shows that the witness had ample opportunity to observe the defendant face to face at a close distance and provided the police with detailed descriptions of both robbers. White unequivocally identified the defendant at trial. Although there is evidence of police suggestivity as to Dennis Burns, there is no such evidence in regard to defendant. Rather, the very fact that White refused to be swayed by this police sugges-tivity illustrates her obvious sincerity in making any identification.

Consequently, it must be concluded that the identification procedure employed in this case was not impermissibly suggestive. Merely because the witness tentatively identified defendant from a set of photographs before she positively identified him in the lineup does not render the lineup suggestively impermissible. State v. Reeder, 436 S.W.2d 629, 631 (Mo.1969). The rule requiring exclusion of an in-court identification simply does not apply where the witness’s identification is independent of the photograph. State v. Ealey, supra.

To summarize, the identification procedures utilized in this case were valid because (1) the witness had an independent basis for identification of the defendant, (2) the record discloses an absence of any suggestive influence by others as to this defendant and (3) the witness made a positive courtroom identification of defendant. The trial court correctly overruled defendant’s motion to suppress because defendant failed to show a totality of circumstances to support his claim of denial of due process on the ground that confrontation was unnecessarily suggestive and conducive to irreparable misidentification.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Thomas Edward NUNES, Appellant.
    No. KCD 28340.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.

      William G. Mays, II, Public Defender, Columbia, for appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
    Before Shangler, P. J., and SWOFFORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The defendant Nunes was found guilty of three counts of striking a police officer engaged in the performance of his duties and was sentenced to serve concurrent sentences of three years on each count. On this appeal he contends the trial court erred in the refusal of his proffered instructions on (1) self-defense and (2) resisting arrest as a lesser included offense.

The evidence favorable to the conviction shows: The offenses for which Nunes was convicted resulted when three members of the Columbia Police Department — Officers Lake, Purdy and Taylor — intervened to quell a brawl between Nunes and Dority, night manager of the IGA store. The incident began on the parking lot of the store where Dority was helping a customer unload groceries into her car when, according to Dority, Nunes approached him with loud obscenities, then shoved him and hit him as Dority fell. [Nunes had been excluded from the IGA store by Dority some months earlier after his female companion had been caught shoplifting.] Dority retaliated by fisticuffs upon Nunes and the fray continued until the police arrived five minutes later. Officer Purdy was the first to come on the scene, then Lake and then Taylor. By the time the police arrived, Dority had gained the advantage over Nunes and had him pinned to the ground. The testimony conflicts as to what happened next, but it is clear that a struggle ensued between Nunes and the police as they tried to reduce him with handcuffs, and subdued him only after Officer Taylor struck Nunes once on the head with his nightstick. When the police arrived, Dority promptly responded to their commands to stop the fight, but Nunes continued to flail wildly, first at Dority and then at the police. The defendant continued his resistance even after he was handcuffed and placed in the police car, and was finally sprayed with mace to make him calm.

The defendant admits that Dority hit him only after he had first struck Dority. He does dispute the evidence of the prosecution as to what happened after the police arrived. The version given by Dority — corroborated by the testimony of Officers Pur-dy and Lake as well as witnesses Johnson and Heuer — was that he stopped fighting in response to the police direction and as he disengaged, Nunes struck out at one officer, then fought and kicked both Purdy and Lake as they tried to handcuff him. Betty Heuer, the customer Dority attended at the time of the incident, testified that when the police arrived, Dority relented his hold on Nunes, but the defendant was in a frenzy, cursing, hitting and fighting them all. The officers testified that Dority responded to their intervention, but Nunes pulled them to the ground, fought and kicked them, all without physical retaliation from them except to try to pin his arms to handcuff him. In the course of this attempt, Nunes fell against a car antenna, snapped it off, and began to swing it at them.

The defendant disagrees with this account of the incident. His testimony was that immediately upon their arrival the police grabbed him although Dority was still striking him as he got up. He could not see well and did not realize until later that the men were police officers, nor that they were trying to arrest him. [All three officers were uniformed and arrived in marked police cars. Officer Lake had no chance to tell Nunes he was under arrest and Officer Purdy did not intend to arrest at first.] Nunes did not remember striking at the officers with the car antenna nor whether his hands came into contact with the officers, but did admit that his feet came in touch with a police officer. It was his contention that he did not intentionally strike or swing at any police officer, and that his purpose in grappling with them was to protect himself from harm from them. He said that the first police officer at the scene grabbed him and continued to beat him even after one handcuff had been placed on him. He concluded that testimony with the statement that he thought the police might inflict serious harm on him. That concern arose from previous encounters with the police, including one incident where an Officer Cunningham had caught his hand in a rat trap which Nunes had placed under the front seat of his car, as a result of which he was threatened by Cunningham. Officers Purdy and Lake both testified that they were aware of that incident and had stopped Nunes previously for traffic violations. The testimony of the defendant himself disclosed a series of convictions for traffic charges and other more serious offenses over the past twenty years. Less than a year before, he was convicted for the assault on a police officer.

To revert to the actual fight — a third city officer, Taylor, saw Purdy and Lake struggling with defendant, and went to their assistance. When he tried to secure defendant around the neck, Nunes bit his hand and drew blood. Taylor struck Nunes once on the head with his nightstick and the other officers were then finally able to handcuff the defendant. Even then, Nunes kicked Lake in the leg, and the defendant continued to kick, struggle and curse as the officers attempted to place him in the patrol car. When in the car he continued to resist and tried to open the door. It was at that time that Officer Purdy sprayed mace on him and he was made calm. Nunes shouted profanities all the way to the station and after he was placed in a cell he spit upon Purdy. Nunes admitted to that.

At the close of the evidence the court refused the instruction proffered by defendant in the modified form of MAI-Cr 2.40 which directs an acquittal on the theory of lawful self-defense. The trial judge refused the submission on the authority of State v. Briggs, 435 S.W.2d 361 (Mo.1968) which denied the right to resist an arrest even under a law which is later found unconstitutional. The defendant argues here that Briggs does not concern the issue of self-defense but resistance to arrest, and contends that under the evidence his tendered instruction was properly submissible.

It is evident that the trial court confounded two disparate issues — self-defense and resistance to arrest. Briggs merely departs from the common law rule which allows resistance to an unlawful arrest by the use of reasonable force and overcomes the impact of such cases as Kansas City v. Mathis, 409 S.W.2d 280 (Mo.App.1960) and State v. Messley, 366 S.W.2d 390 (Mo.1963) which followed the previous authority. Briggs means [1. c. 365] that a citizen may not use force to resist any arrest, lawful or unlawful, for such self-help tends to intolerable disorder. The right of self-defense expresses a different principle and permits reasonable resistance to excessive force of the officer to protect the bodily integrity of the citizen. In such case, however, [Restatement of Torts, Second, § 65, comment f]:

the [citizen] may defend himself by the use of such force, not because its use is necessary to protect him from the unlawful arrest, but because it is the only way in which he can protect himself from death or serious bodily harm.

Therefore, the rationale which denies resistance to unlawful arrest does not determine the right to resist excessive force.

The jurisdictions which have abrogated the common law right to resist an unlawful arrest recognize that the right of self-defense against excessive force in the arrest remains unimpaired. State v. Ramsdell, 109 R.I. 320, 285 A.2d 399 (1971); People v. Curtis, 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33 (1969); State v. Mulvihill, 57 N.J. 151, 270 A.2d 277 (1970); Gray v. State, 463 P.2d 897 (Alaska 1970), and generally, 44 A.L.R.3d 1079, 1087, Annotation: Illegal Arrest — Right to Resist. These authorities each hold that although a citizen has no right to resist an arrest, the privilege of self-defense against excessive force in the arrest remains. The pragmatic rationale of this privilege recognizes that although liberty can be restored through legal process, life and limb cannot be repaired in a courtroom. People v. Curtis, supra, 74 Cal.Rptr. l. c. 719, 450 P.2d l. c. 39. The historical rationale for the abrogation of the common law right to resist unlawful arrest is given in City of Columbus v. Fraley, 41 Ohio St.2d 173, 324 N.E.2d 735 l. c. 739 (1975):

Since 1709, when the doctrine was pronounced in The Queen v. Tooley (1709), 2 Ld.Raym. 1296, 92 Eng.Rep. 349, society has changed drastically. Nations once rural and agrarian have become urban and industrialized. Policemen who once employed staves and swords to effect arrests now use guns and sophisticated weapons. The era “when most arrests were made by private citizens, when bail for felonies was usually unattainable, and when years might pass before the royal judges arrived for a jail delivery,” is past. Modern-day defendants reap the benefits of “liberal bonding policies, appointed counsel in the case of indigen-cy, and the opportunity to be taken before a magistrate for immediate arraignment and preliminary hearing.”
Considerations of this type have prompted both courts and legislatures to look anew at, and often abandon, the common law rule. .

Thus, the contemporary authorities — which Briggs now joins — hold that while a person may not use force to resist an arrest, he may use reasonable force to defend life and limb against excessive force. The reasonableness of the force used and the right of self-defense are in each case for the trier of fact to decide. State v. Ramsdell (R.I.), supra, and People v. Curtis (Cal.) supra. The right of an arrestee to self-defense does not arise when the arrestee creates a situation so “fraught with peril” as to invite the use of force to subdue it. Gray v. State, supra, l. c. 910 (Alaska). Also, the arrestee forfeits the right to self-defense if he knows that if he desists from physical resistance and submits to arrest, the excessive force of the officer will cease — but does not conform his conduct to that knowledge. State v. Mulvihill, supra, l. c. 280[5, 6] (N.J.). This qualification is expressed in the comments to § 3.04 of Model Penal Code, which denies self-defensive force to an arrestee who “knows that he is in no peril greater than arrest if he submits to the assertion of authority”.

These principles are compatible with the developed law of this state. A police officer is authorized to use all necessary force to effect the arrest if the arres-tee flees or forcibly resists after notification that the officer intends to arrest. § 544.190, RSMo 1969. He may use only the force he reasonably believes necessary [State v. Nolan, 354 Mo. 980, 192 S.W.2d 1016, 1020[7-9] (1946)] and while the use of unreasonable force may not void the arrest, it may subject the officer to civil or criminal liability. City of Gallatin ex rel. Dixon v. Murphy, 217 S.W.2d 400, 403[1-4] (Mo.App.1949); Scurlock, Basic Principles of the Administration of Criminal Justice, 41 UMKC L.Rev. 167, 189 (1972).

The law expects an officer in making an arrest to be the aggressor and imposes the duty to press forward to overcome all resistance to bring the arrestee under physical restraint. State v. Ford, 344 Mo. 1219, 130 S.W.2d 635, 638 (1939). An officer need not engage felons on equal terms or put off the arrest until a more favorable time, but is expected to accomplish the arrest by the use of force co-extensive with his duty. State v. Dierberger, 96 Mo. 666, 10 S.W. 168, 170 (1888); Scurlock, Arrest in Missouri, 29 U.K.C. Law Rev. 117, 217 (1961). The requirement of § 544.190 that the force used to accomplish the arrest or prevent escape must be reasonably necessary for the purpose becomes a determination of objective fact under the circumstances. State ex rel. and to Use of Donelon v. Deuser, 345 Mo. 628, 134 S.W.2d 132, 135[2, 3] (1939); City of Gallatin v. Murphy, supra, l. c. 403[1-4].

There are statements in the Missouri law which recognized the right of an arrestee to resist the use of excessive force by an officer to accomplish arrest, but only to the extent of the excess. State v. Banks, 258 Mo. 479, 167 S.W. 505 (1914) considered the contention that it was error to refuse the self-defense instruction that if defendant knew the deceased was a police officer, yet he had the right to shoot him, if the officer used unnecessary force to arrest and gave the defendant good reason to believe he was about to be killed or suffer great bodily harm. The court acknowledged the instruction was a correct statement of the law and cited the general rule from Wharton on Homicide (3rd Ed.) § 401, p. 621:

An officer seeking to make an arrest may only use such force as is reasonably necessary to subject the person sought to be arrested to his authority; and, where he goes further, and uses unnecessary force, the rule applicable to a private individual attacked by another, that, if a person believes, or has reason to believe, that he is in danger of receiving great bodily harm, he may defend himself to a reasonable extent, applies. ... A person sought to be arrested may oppose a felonious aggression in the execution of the arrest, even to slaying the officer when necessary to save his own life, or to save himself from serious bodily harm.

However, because the defendant had based his defense on testimony that he did not know the deceased was a police officer, the instruction was not warranted; but [1. c. 508]:

[i]n a proper case, where the evidence showed that the defendant knew the aggressor was an officer attempting to arrest him, and that the officer used unnecessary force in so doing, and that defendant believed, and had good reason to believe, that he was about to be killed, or about to receive great bodily injury by reason of such unnecessary force, and shot to defend himself against such unnecessary force, such an instruction would be proper, but where, as here, there is no such evidence, but, on the other hand, the entire defense is based upon the theory that defendant did not know the aggressor was an officer attempting to arrest him, the evidence does not justify the giving of such an instruction.

See also, State v. Ross, 492 S.W.2d 792, 794[1] (Mo.1973); City of St. Louis v. Treece, 502 S.W.2d 432, 435 (Mo.App.1974); State v. Milentz, 521 S.W.2d 1, 3 (Mo.App.1975).

This right of self-defense, it must be understood, does not resist the arrest but the excessive force. Therefore, self-defense is not available to the arrestee who uses more force for self-protection than reasonably appears to be necessary. As corollary, an arrestee who provokes the use of force against him may not excuse his resistance by self-defense. Wharton’s Criminal Law (Anderson) (1957) states [§ 216, p. 475]:

When a man puts himself in a state of resistance and openly defies the officers of the law, he is not allowed to take advantage of his own wrong, if his life is thereby endangered, and set up the excuse of self-defense.

The Model Penal Code, § 3.04(2)(b)(ii) does not justify the use of deadly force “if the actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter”. This qualification is compatible with Missouri authorities in assault cases which hold that an aggressor may not invoke self-defense to justify the injury to the other. State v. Spencer, 307 S.W.2d 440, 443[2, 3] (Mo.1957); Lehman v. Lambert, 329 Mo. 1147, 49 S.W.2d 65, 68[6] (1932).

Any substantial evidence of self-defense—even from the defendant alone—requires instruction on the issue to the jury as part of the law of the case. State v. Spencer, supra, l. c. 443; State v. Robinson, 182 S.W. 113[1—2] (Mo.App.1916).

These authorities yield the rule that arrestee becomes entitled to an instruction on self-defense where there is substantial evidence of excessive force by the police officer in circumstances where the use of such force was not provoked by the arrestee. Accordingly, as a matter of law, the refusal by the trial court to instruct on self-defense was proper.

It comes from the defendant himself that he started the imbroglio and never relented. He hurled the first epithet, he struck the first blow, and after Dority retaliated and the police intervened, he continued his assault wildly against all of them. The defendant asserts that he did not provoke the use of force by the police, but that they simply began to beat him and that he retaliated for fear that they would cause him unnecessary bodily harm. These contentions contradict the evidence by the State that Nunes never abated his assault, first against Dority and then against the officers; but what remains conceded even by the defendant is that he was the aggressor and that in the course of this aggression struck at least one of the officers with his leg. The defendant explains his resistance by his fear that the officers harbored a grudge against him from prior encounters, yet contends at the same time he was not at first aware Purdy and Lake were officers. That does not explain, however, why Nunes continued to resist when he finally discovered their identities. It is not disputed that each of the three officers — Purdy, Lake and Taylor — were in proper uniform and arrived in marked cars. Nor does Nunes contend the officers were not in performance of their duties under § 557.215. [In fact, when the police arrived Nunes was engaged in activities which amounted to, among other things, a breach of the peace [§ 562.240] and a common assault [§ 559.220]. The officers were required by law [§ 85.620] to conserve good order and quell the fight. See e. g. State v. Jacks, 462 S.W.2d 744, 747[4] (Mo.1970).] Therefore, even though the officers when they came upon the scene did not intend at first to arrest anyone, they were engaged in the performance of official duties at the time of the assault. State v. Brothers, 445 S.W.2d 308, 310[1, 2] (Mo.1969).

If, as Nunes contends, he was not aware of their identity as officers when first Pur-dy and then the others intervened, then his resistance was not against the unnecessary force of a police officer and no submission for self-defense is proved. State v. Banks, supra, l. c. 508. If, as he also contends, he learned their official identity during the fracas, it was his duty to submit to their reasonable methods of arrest. It is evident in any event with any effort Nunes could easily have learned that the men who intervened were police officers, and he is held to that knowledge and the consequent duty to submit. Williams v. State, 311 N.E.2d 619, 621[4] (Ind.App.1974). The defendant was the aggressor throughout the entire encounter; even after he was subdued and placed in the police car, he fought to escape the arrest, and then in jail he spat upon the police. Beyond that, there was no evidence — even to the blow on the head by Taylor with the truncheon — that any of the force used by the police was other than reasonable and consistent with their duty to maintain the peace and overcome resistance to arrest. The self-defense submission was properly refused.

The other point on appeal contends error for failure to submit instructions patterned on § 557.210 which would have allowed the jury to find Nunes guilty of the misdemeanor of resisting process, other than for felonies, if the jury find:

First, that Nunes knowingly and wilfully did obstruct, resist or oppose the officer, and
Second, that the officer was engaged in the discharge of an official duty, and
Third, that the arrest was for an offense other than a felony.

The defendant cites the general test from State v. Amsden, 299 S.W.2d 498, 504 (Mo.1957) that if the greater of the two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser for his argument that the misdemeanor, resisting process other than for felonies, is necessarily included within the felony of striking a police officer in the performance of his duties. Accordingly, the argument continues, the court was required to submit the instruction offered by defendant.

This argument fails because there was no evidence to justify submission of the misdemeanor, resisting process other than for felonies. In State v. Taylor, 498 S.W.2d 614 (Mo.App.1973) and State v. Ross, 492 S.W.2d 792 (Mo.1973) the court construed § 557.215 [under which Nunes was charged and convicted] to be directed at all willful assaults on police officers, and ruled that there was no lesser included offense where a striking is shown and no controversy appears over whether the victim was a police officer or engaged in the performance of his duties. That was the state of facts before the trial court and hence an instruction on a misdemeanor [in that case, common assault] was not appropriate. (498 S.W.2d at 617). In State v. Ross, supra, [l. c. 794] the court found the evidence did not warrant a common assault instruction [even if otherwise valid] where it was clear the officer was struck while engaged in the performance of his duties and used no excessive force. See also, State v. Jacks, supra [l. c. 747].

In the present case, the uncontroverted evidence showed at least that Nunes kicked the officers. The witnesses, other than the defendant himself, all described a continuous episode of assaults on the officers by flailing, spitting, biting and wrestling. Nor is there genuine doubt Nunes was aware that his victims were officers engaged in the performance of their duties.

It may be arguable that § 557.210 applies to misdemeanor arrests without warrants [Kansas City v. LaRose, 524 S.W.2d 112 (Mo. banc 1975) but the fact remains that the Legislature, by enactment of § 557.215 intends to treat the striking of an officer as a distinct and far more serious offense than the mere obstruction of an officer in the discharge of duty in any case other than a felony. Since the evidence is undisputed that Nunes struck an officer in the performance of an official duty, the trial court properly refused to submit the misdemean- or of resisting process, other than for a felony, as requested by defendant.

The judgment is affirmed.

All concur.

      . The Model Penal Code, § 3.04, provides: “(2)(a) The use of force is not justifiable ... (i) to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful . (ii) except that this limitation shall not apply if: ... (3) the actor believes that such force is necessary to protect himself against death or serious bodily harm.” See, also, Fisher, Laws of Arrest, § 138; 5 Am.Jur.2d, Arrest, § 94, p. 779; Uniform Arrest Act, § 5.

      . §§ 544.190 and 559.040 [which justifies a homicide committed in the apprehension of any person for any felony committed] were held unconstitutional by a 4 to 3 decision of the United States Court of Appeals, 8th Circuit, in Mattis v. Schnarr, 547 F.2d 1007, p. 1020, adopted December 1, 1976, to the extent those sections “permit police officers to use deadly force to apprehend a fleeing felon who has used no violence in the commission of the felony and who does not threaten the lives of either the arresting officers or others”. That holding does not bind us here for state courts are controlled by the supreme law of the land as de-dared by the United States Supreme Court, and not by the general announcements of law made by lower federal courts. Kraus v. Board of Education of City of Jennings, 492 S.W.2d 783, 784[2] (Mo.1973). In the absence of decision of the United States Supreme Court, we are bound to follow the controlling decisions of the Missouri Supreme Court. Valentine v. State, 541 S.W.2d 558 [Mo. banc adopted October 12, 1976]. Furthermore, the present case does not involve the use of deadly force against a fleeing felon, the conduct condemned in the circumstances of Mattis.