Komanetsky v. Missouri State Medical Ass'n, 35250
| Decision Date | 29 October 1974 |
| Docket Number | No. 35250,35250 |
| Citation | 516 S.W.2d 545 |
| Parties | William M. KOMANETSKY, M.D., et al., Plaintiffs-Appellants, v. MISSOURI STATE MEDICAL ASSOCIATION et al., and Health Care Foundation of Missouri, Defendants-Respondents. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Francis P. Dorsey, James J. Raymond, St. Louis, for plaintiffs-appellants.
Bradley, Noble & Baker, John W. Noble, Charles H. Baker, Kennett, Forrest P. Carson, Jefferson City, for defendants-respondents.
The issue in this case, simply stated, is whether an association of physicians and surgeons of the school of allopathy incorporated under CH. 352 RSMo.1969, V.A.M.S., may join with an association of physicians and surgeons of the school of osteopathy incorporated as a not-for-profit corporation under CH. 355 RSMO.1969, and incorporate a third corporation under CH. 355 RSMo.1969 for the purpose of affording a review of quality and costs of services rendered by members of the third corporation who are also members of either of the aforesaid parent corporations. We hold that they may.
For the purpose of brevity the following abbreviations of the corporate names of the associations who are parties to this litigation shall hereinafter be used: Missouri State Medical Association--MSMA; Missouri Association of Osteopathic Physicians and Surgeons--MAOPS; and Health Care Foundation of Missouri--HCF.
This suit was commenced by ten medical doctors, all members of MSMA, against the defendant corporations, MSMA and HCF, and 19 individual medical doctors, who the petitioners allege, were officers or Council members of MSMA on August 31, 1970, or September 29, 1971, when the petition was filed. Petitioner's pleading was in two counts. Count I alleged that the petitioners were members of MSMA and that they were bringing this cause of action in behalf of themselves and all members who might wish to join them. The gist of their pleading was that Joseph L. Fisher, M.D., the President of MSMA, with the approval of the officers and Council of MSMA, together with Claus Rowheder, D.O., the President of MAOPS, incorporated HCF under the provisions of CH. 355 RSMo.1969 as a not-for-profit corporation; that neither the petitioners nor any other members of MSMA were afforded an opportunity to vote their approval or disapproval of this action by the officers and Council of MSMA; that neither the Constitution and By-Laws of MSMA nor the statutes under which it was incorporated gave MSMA, its officers or Council, authority to join with a second association to form a third; that this action of the defendants would cause the petitioners irreparable injury in that (1) a provision in the by-laws of HCF making any member in good standing of MSMA automatically a member of HCF subjected the petitioners to 'involuntary servitude' by making them members of HCF without their consent or prior approval; (2) that HCF would require them to violate the physician's oath by compulsory inspection of their medical records in violation of the doctor-patient privilege; (3) that HCF would require review of professional acts and conduct of the petitioners by a board on which members of the lay staff of HCF unqualified to judge, would make findings with respect to professional acts and conduct; and (4) that the individual defendants appropriated $5,000.00 of MSMA's monies to HCF in excess of their authority as officers and Council members of MSMA. Petitioners requested that the court enjoin MSMA and the individual defendants in their capacity as officers and Council members of MSMA from further activity in the affairs of HCF and that the individual defendants be ordered to make restitution for the money they misappropriated to HCF. Count II was directed against HCF and sought an order restraining HCF from using any additional funds appropriated by the defendants and return to MSMA any property or funds already given it by the defendants. The individual defendants and MSMA jointly filed their Answer denying most of petitioner's allegations, setting forth the names and offices of the officers and Councilors of MSMA for the years 1970, 1971 and 1972; and further alleging that prior to the filing of the petition in this case the by-laws of HCF had been amended making membership in HCF voluntary for any member in good standing of MSMA and MAOPS, and that the incorporation of HCF was done by and with the authority of the officers, Council, Constitution and by-laws of MSMA.
After trial, the trial court having taken the cause under submission upon completion of the evidence, found, with respect to Count I, that the petitioners were not entitled to the relief sought, denied the injunction as prayed for, and further denied restitution of funds or property from the individual defendants. On Count II judgment was entered in behalf of HCF. A timely appeal was taken from this judgment after petitioners' motion to set aside judgment and enter judgment for petitioners as prayed in their amended petition, or, in the alternative, for a new trial, had been filed, presented without oral argument and denied by the trial court.
On appeal the petitioner's did not brief any alleged trial error with respect to the trial court's judgment on Count II of the petition and we therefore conclude that the appeal from the judgment entered thereon is abandoned. State ex rel. Beeler v. City of Raytown, 453 S.W.2d 672, 674(2) (Mo.App.1970). As to Count I though, they raise the following Points: (1) the statutes under which MSMA was incorporated do not give the authority to join with another association to form a third association; (2) the decision whether MSMA should join with MAOPS to form HCF was not ordinary business and should have been resolved by a vote of the membership, and (3) the individual defendants who were officers and members of the council at the time the funds were misappropriated should make restitution to MSMA.
MSMA was incorporated under CH. 352 RSMo.1969 and received its charter from the circuit court of the City of St. Louis on July 28, 1904. Its charter was thereafter amended by court order of December 3, 1951, and it is this Amended Charter which was in effect at all times relevant to the issues presented in this appeal. According to the Constitution of MSMA the House of Delegates is the legislative body of the Association and consists of delegates elected by the component societies as well as all Past-Presidents of the Association who serve as Delegates-at-Large. It meets annually at the time and place of the Annual Session and is required by the By-Laws of the Association to remain in continuous session on the first day of the Annual Session and complete the work coming before it at that session. It must further meet on the last day of the Annual Session to receive the report of the Nominating Committee and complete unfinished business and the election of officers. Its membership is representative, and each component county society is entitled to send one delegate each year or one alternate to the House of Delegates for each fifty full paid members or fraction thereof in the Association plus one additional delegate or alternate for each one hundred members or fraction thereof. However, each component society which is composed of two or more county societies is entitled to at least one delegate from each of the counties of which it is composed. All meetings of the House of Delegates are required to be open to members of the Association. It is required by the By-Laws to divide the state into Councilor Districts specifying what counties each district shall include, and pursuant to the Constitution and this authority, the House of Delegates has divided the state into ten Councilor districts. The Council, which is the executive body of the House of Delegates and between sessions exercises the power conferred on the House of Delegates by the Constitution and By-Laws, also constitutes the judicial body of the Association when matters are referred to it for decision by the Association, by component societies or by individual members thereof. It consists of the President, President-Elect, Immediate Past-President, Secretary, Treasurer and one duly elected Councilor from each Councilor District. Half of the membership of the Council is elected each year for a term of office of two years by the delegates from Councilor Districts whose Councilors' terms expire, so that the terms of half of the 10 elected Councilors terminate annually. The Council is required by the By-Laws to meet during the Annual Session at such times as necessity may require, subject to the call of the Chairman or on petition of three Councilors. It elects a Chairman and a Vice-Chairman for one year terms and is required to make an annual report to the House of Delegates. Each Councilor is charged with express duties within his Councilor district and the Council has specific duties imposed upon it by the By-Laws, among which are (1) that it be the appellate Board of Censors of the Association, (2) that charters shall be issued to county societies only on approval of the Council, (3) that in sparsely settled sections it has the authority to organize the physicians of two or more counties into societies preliminary to the granting of a charter; (4) to provide for and supervise the issuance of all publications of the Association and appoint an Editor and such assistants as it deems necessary, (5) to prescribe the methods of accounting and establish a Committee on Auditing and Appropriations from among its membership for the purpose of auditing all the accounts of the Association, (6) with adopting an annual budget providing for the necessary expenses of the Association for the following year, (7) to fill vacancies in office not otherwise provided for which occur between Annual Sessions of the House of...
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