Autenrieth v. Schaff

• Decision Date: 30 June 1917
• Docket Number: No. 20090.,20090.
• Citation: 196 S.W. 1129,271 Mo. 248
• Parties: AUTENRIETH v. SCHAFF.
• Court: Missouri Supreme Court

196 S.W. 1129

271 Mo. 248

AUTENRIETH v. SCHAFF.

No. 20090.

Supreme Court of Missouri. In Banc.

June 30, 1917.

Appeal from Circuit Court, Pettis County; Geo. W. Barnett, Special Judge.

Action by Mamie A. Autenrieth, administratrix of Aaron P. Autenrieth, deceased, against Charles E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. W. Jamison, of St. Louis, and Montgomery & Montgomery and Henry Lamm, all of Sedalia, for appellant. W. D. O'Bannon, Holmes Hall, and R. S. Robertson, all of Sedalia, for respondent.

WALKER, J.

This was an action for damages for the death of plaintiff's husband, which upon a trial resulted in a verdict in her favor in the sum of $15,000. From the judgment rendered thereon this appeal was perfected.

Certain errors assigned render necessary a statement of matters occurring before the trial on the merits. On the 12th day of December, 1916, the regular judge of the circuit court of Pettis county, where this case was pending, made and caused to be entered of record the following order:

"Now on this day the judge of this court on his own motion disqualifies as trial judge in the above-entitled cause."

No application for a change of venue was on file at the time of this entry, and no cause was assigned therefor. The succeeding day defendant filed a motion, verified by affidavit, to set aside the order of disqualification on the grounds that the same was void in having been improvidently and irregularly made without authority, to forestall an anticipated application on the part of the defendant for a change of venue and render necessary an election of a special trial judge to try this case by the members of the bar. On the same day the defendant filed his application for a change of venue on the ground of the prejudice of the regular judge. The judge refused to entertain or pass upon either the motion or the application, but stated at the time, and caused to be entered of record, over defendant's objection, that he had disqualified himself because —

"on yesterday afternoon, or some time during yesterday, which was the 12th day of December, this court was informed by an attorney of record in this case, as well as in about 20 cases pending in this court, that the defendant in this case, and all of these cases, was going to file an application for a change of venue, based upon an allegation and affidavit of the bias and prejudice of this court; that after this court became advised of this state of facts that in all of the cases in which the M., K. & T. Railway Company, Charles E. Schaff, receiver thereof, which were pending in this court, that the defendant was making the allegation that the court was biased and prejudiced, this court felt a hesitancy after this knowledge came to him to sit upon the bench and have further to do with the said cases, and in justice to his own feeling in the matter, and in an attempt to relieve the attorneys of making any affidavits of bias and prejudice of this court concerning cases which the court knew nothing, the court thought the just and proper way to proceed was to disqualify himself in all of these cases, which he did. The court at this time refuses to take up any motion connected with this case or any similar cases in which the court has disqualified."

After the entry of this order the court asked counsel if they could agree upon a special judge. They announced that they could not; an order was entered to that effect, and the clerk was directed to hold an election for special judge to try the case. One of the counsel for plaintiff nominated G. W. Barnett. The roll of attorneys was called, 12 voting for Mr. Barnett and 5, which included counsel for defendant, refusing to participate in the election. The clerk announced the election of Mr. Barnett as special judge, and he went upon the bench and proceeded with the trial. To this entire proceeding counsel for defendant preserved exceptions, but participated in the trial under protest.

The testimony discloses that the plaintiff's deceased husband, whose death is the basis of this action, and who will be hereafter designated as the deceased, was a conductor of a train in the service of the defendant. In the early morning of the accident before it was fully light, the trainmen's lanterns still being used, the deceased was engaged at Higbee in the making up of a train consisting of a locomotive, freight cars, and a caboose. After the train had been made up, nothing remaining to accomplish same except the coupling thereto of the caboose, it was attempted to effect this coupling automatically by impact, but the effort resulted only in shoving the caboose a half a car's length from the rear of the train. Thereupon the deceased went in between the caboose and the rear car, either to adjust the coupler or make the air connection; it having been admitted that deceased was there for one or the other of these purposes, and both having been pleaded as between the two, it is immaterial which was the moving cause of his presence there. It will suffice then to say that he stepped between the caboose and the rear car, and the engineer, upon a signal from one of the brakemen, backed the cars down against the caboose, catching and crushing the deceased between them and inflicting the injuries from which he died.

I. The duties incumbent upon a judge, under his oath of office, are mandatory. The importance of these duties, affecting as they do the lives, liberty, and property of citizens, is such that the responsibility for their performance cannot be lightly put aside to satisfy personal caprice or in anticipation of the action of litigants. In...