author: GRAVES, J.

text:
    McGinnis v. Chicago, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.
    Division One,
    December 22, 1906.
    1. NEGLIGENCE: Servant: Respondeat Superior: Nonfeasance. For the nonfeasance or negligent failure of the servant to perform a duty, the servant is not liable to third parties, but the master under the rule of Respondeat Superior is liable.
    2. -: -: -: Misfeasance. For misfeasance by the servant or negligent performance of duty, both the servant and master are liable to third parties, under the rule of Respondeat Superior.
    3. -: -: ——: -: Discharge of Servant. Where the servant is charged with misfeasance, and he and the master are joined as defendants, and the petition imputes the negligence of the servant to the master, a verdict of the jury finding the servant not guilty of negligence, discharges the master also, although the verdict is against the master.
    4. -: Servant and Master: Discharge of Servant Discharges Master. Where under the pleadings and evidence the master, if liable at all, is liable only by reason of the negligence of the servant in failing to properly perform a lawful duty, the master cannot be held liable unless the servant is; and a verdict in favor of the servant, joined with the m'aster as a defendant, ■ but finding the master guilty of' negligence, cannot stand. Either both are liable, or neither is. And if plaintiff accepts such verdict, the judgment on the appeal of the master will be reversed.
    Appeal from Clinton Circuit Court. — Now. A. D. Burnes, Judge.
    Reversed.

      M. A. Low, Paul E. Walker and Frank P. Sebree for appellant.
    The appellant, the master, and French, the servant, being jointly sued for the alleged negligence of the servant, and the verdict and judgment being in favor of the servant, the appellant was thereby acquitted of liability. And as such verdict and judgment also fiad against the appellant and adjudge it liable, such finding and judgment against the appellant are inconsistent, erroneous and unauthorized, and should be reversed. Deleplain v. Kansas City, 109 Mo. App. 107; State to use v. Coste, 36 Mo. 437; Henry v. Woods,-77 Mo. 277; Flannery v. Railroad, 23 Mo. App. 120, 97 Mo. 192; Schumpert v. Railroad, 65 S. C. 332; 24 Am. and Eng. Ency. Law (2-Ed.), 752; City of Anderson v. Fleming, 160 Ind. 597; Emma Silver Mining Co. v. Emma Silver Mining Co. of N. Y., 7 Fed. 401; Emery v. Fowler, 39 Me. 326; Anderson v. Railroad, 200 111. 329; Bailey v. Sundberg, 79 Fed. 583; Doremus v. Root, 23 Wash. 710; Stevick v. Railroad, 39 Wash. 501; Indiana Nitroglycerin Co. v. Lippincott Class Co., 75 N. E. 649; Ebsery v. Railroad, 164 111. 518; Railroad v. Pojes, 142 IT. S. 18.

      Pross T. Cross and John A. Cross for respondent.
    (1) Appellant says that “the verdict and judgment being in favor of French, the servant, the appellant, the master, cannot be held liable. ’ ’ Such is not the law in this case. R. S. 1899, sec. 767; Moore v. Railroad, 64 Am. Dec. 83; 2 Rorer on Railroads, p. 1181; Berkson v. Railroad, 144 Mo. 211; Wiggin v. St. Louis,' 135 Mo. 558; Norton v. St. Louis, 97 Mo. 537; O ’Rourke ' v. Railroad, 142 Mo. 342; Thomas, Neg. Rule, Dec. and Opinions (2 Ed.), p. 1764; 1 Kinkead’s Commentation on Neg., pp. 124, 125. The rule is well settled that the master and servant are joint tortfeasors when sued for the negligent act of the servant. 1 Kinkead’s Com. on Neg., pp. 124-5. It is a well-established principle that wrongdoers are both jointly and severally liable, and plaintiff may elect to sue either one or all of them; or, having sued more than one, plaintiff has the right to dismiss as to any one of the defendánts at any stage of the proceedings, and the defendant cannot complain that another person who is equally liable is not held also. Berkson v. Railroad, 144 Mo. 211. (2) But even though it should be conceded that the law is that a verdict discharging the servant, or one primarily liable, discharges the master, yet there is another very forceful and cogent reason why it would not be the rule in this case, and that is that, under the former decisions of this court, the test of liability against the servant is altogether different to the test of liability against the master. In other words, the master is liable for all the negligent acts of the servants, whether they be acts of “commission or omission,” while the servant is liable in an action for damages to -an injured third person only when he is guilty of acts of commission or positive misfeasance, and the servant is not liable for injuries to third persons, -caused by his failure to act, or to perform his duty. And in this case, if the jury should have found that it was the duty of defendant French to help plaintiff hold and lift the car, and that he negligently failed and neglected to help plaintiff to so hold the ear, that is, failed and omitted to act and do his duty, then his negligence would be an act of omission, or failure to act, for which the servant is not liable to plaintiff, and therefore the jury could properly find the servant not liable; but at the same time, the master being liable for all the negligenct acts of the servant, whether of commission or omission, it would be the duty of the jury to find against the master. Harriman v. Stowe, 57 Mo. 93; Buis v. Cook, 60 Mo. 391; Steinhauser v. Spraul, 114 Mo. 560, 127 Mo. 541; Story on Agency (9 Ed.), secs. 308, 309; Wharton’s Agency, secs. 537, 538; Wharton on Neg. (2 Ed.), sec. 80; Bell v. Josselyn, 3 Gray 309; 1 Kinkead’s Com. on Neg., pp. 124, 125; 5 Thompson’s Com. on Neg., sec. 5771; Thomas’s Neg. Rules, etc. (2 Ed.), p: 1764.
   GRAVES, J.

Action for personal injury. Suit was instituted against defendant, the Chicago, Rock Island and Pacific Railway Company, and two of its employees, Welsh and French. Upon close of plaintiff’s evidence the trial court sustained a demurrer to the evidence as to defendant Welsh, but overruled the demurrers of the other two defendants. After the evidence closed the case was submitted to the jury and'a verdict returned in favor of defendant French, but against the defendant company in the sum of $10,000. Upon this verdict judgment was rendered against defendant company for the said $10,000 and costs. After unsuccessful motion for new trial, an appeal was duly perfected and taken to this court by the railway company.

In the petition it is alleged that plaintiff and defendants Welsh and French were employees of defendant railway as members of a gang of bridge carpenters; that defendant Welsh was foreman of the gang; that on the day of the accident, February 6, 1903, they were working near or at the station of Dearborn, Missouri; that defendant Welsh ordered a tool car to be loaded with some old bridge lumber and after the lumber was placed on the car, ordered some hand cars to be placed on top of the lumber; that after the cars were placed thereon with wheels down, the defendant Welsh ordered plaintiff and other co-laborers to turn them over; that the lumber was so placed on the car as to make the place dangerous to work on; the petition then proceeds as follows:

“That in obedience to said orders, and commands of defendant Welsh, plaintiff and defendant French took hold of and lifted on the handles of one end or side of one of said hand cars, and two of said other hands took hold of and lifted on the handles of the other end of said car, and that when one side of said car was raised from off said timbers the defendant French while in the line of his duties to defendant railway company although knowing and seeing plaintiff’s perilous position on the edgé of said loaded car, did carelessly, negligently and wantonly let go of his hold on said car and ceased to help plaintiff to hold and lift the same, and- wantonly and negligently shoved and pushed said car towards plaintiff, and that on account of all the above said hand car moved and slid towards and onto plaintiff, and he was, without any fault or negligence on his part whatever, pushed and forced over the side and edge of said loaded car and onto the ice and frozen ground below, with great force and violence, and permanently injured as hereinafter set out.
‘ ‘ That the negligence and wantonness on the part of the defendant wa,s as follows:
“a. That the defendant French, while so helping to lift and hold said hand car, negligently, wantonly and carelessly pushed and shoved said ear onto and toward plaintiff.
“b. That the defendant French, while helping to lift and hold said hand car as aforesaid under'the said orders and commands of the said Welsh, negligently and wantonly let go his hold thereon and ceased to hold and help hold said hand car.
“c. That the defendant Welsh, in the line of his duties to defendant railway company, negligently ordered and required plaintiff to get on top of said loaded car to' assist in lifting said hand cars when it was dangerous and unsafe for plaintiff to do so, and this the said Welsh well knew, or could have known by the exercise of ordinary care. ’

The petition then described the character of the injuries and alleged damages in the sum of $25,000.

The separate answer of each defendant was practically the same (1) a general denial, (2) an admission that plaintiff and defendants Welsh and French were members of a gang of bridge carpenters and that plaintiff fell from the car and received slight injuries, but denied the seriousness of the injuries, (3) and a plea of contributory negligence. Reply is a general denial.

With the views we have of this case an extended statement of the evidence is not required. Plaintiff after testifying to his employment by defendant company and that defendants Welsh and French and three others, Ferguson, Kincade and Pardee, were likewise employed on the bridge gang of carpenters, and that Welsh was a carpenter the same as he was, “only he was a straw boss,” described the manner of his injury thus:

“Q. Go ahead, Mr. McGinnis, and in- your own ■language tell what took place? A. Well, we had a hand car or push car for our tools. We had removed some of the bridge timber out of a couple of spans of bridge and Mr. Welsh come to the conclusion he would load this bridge timber. So we loaded it on our tool car, as you might call it. It was part boxed, about eight feet boxed and the balance a flat car. We started in to load the timber until it was above the top of the box car. After we got the timber on Mr. Welsh says, ‘Now, take hold and run the push car on top of the bridge timber.’ So we fastened the ropes to the rubble car and pulled it on.
“ Q. State your position while putting the car on? A. My position was on the ground with Mr. Welsh. The other men were on top of the car, holding the ropes. We simply pulled it up until it got out of our reach and then Mr. Welsh told me to get on top of the car and help pull it up. I got up and we helped and then he ordered us to turn it over on its back, turn, the wheels up'—
“Q. Now state the position of the rubble car on top of this bridge timber? Did it set crossways or lengthways? A. Crossways, just as it come up.
“Q. Go ahead and state what you done. A. After we got it up there we all got around it. I believe it was Kincade that—
“Q. State what orders, if any, Mr. Welsh gave you there as to your position? A. Mr. French stood to the opposite corner and I was the left of French. Mr. Welsh said to me, ‘You get around on the end of the car where you can do something.’ Well, I stepped around and we started to pick it up. We got it on its edge and Mr. French give the car a shove, started the car up like that and the car fell and I just went off on the hard ground.
“Q. When he shoved the car, state what direction it fell in? A. Well, it went south. I think the road runs in an angle, that way, at the depot there.
“Q. When he gave the shove, did he continue to hold the car? A. No, sir; he just shoved and stood back.
“Q. He let go of the car? A. He let go of the car.
“Q. At the time you was lifting the car on you said you was at the west end of the car? A. I was at the west end of the car.
“Q. Where was French ? A. On the north side of the car.
“Q. On the north side of the car? A. Yes, sir; at the corner.
“Q. The same corner you was at the end of? A. Yes, sir.
“ Q. Now, where were the other three men holding the car. A. On the east side of the car.
“Q. Then you and French were left— A. We were lifting there together.
“Q. To lift that entire part of the car? A. Yes, sir.
“Q. And when-he let go of the car you had no other assistance? A. I had no other assistance. I was alone at the end of the car.
“Q. Were the three men on the other end still holding the car and lifting? A. They had hold, I expect, but I wasn’t given any time. After it started to go I went oft like a shot and dropped on the ground.
“Q. Did you have any notice of any kind? A. No, sir; no warning or notice of any kind whatever.
“Q. State, Mr. McGinnis, how much space there was between the west end of the push car and the edge of the car loaded with bridge timber for you to stand on? A. I expect, may be, fourteen inches. Not over the width of the stringer, if that much.
“Q. After you fell off state what was done? A. Well, after I dropped on the ground French he laughed at me.
“Q. French laughed at you? A. French laughed at me. Of course I thought my feet was all mashed to pieces and when I tried to stand up and couldn’t do it I crawled on my hands and knees to get to the other side. They let me lay there until they loaded the car. After they finished loading the car they picked me up and carried me into the bunk car and French was still laughing.”

On cross-examination, he describes the incident thus: “When we picked it up and got it on its side, about like that, Mr. French was here and I was at the end of the car. We turned it on its edge just like that and then Mr. French started it that way and he stepped back and the car fell with a slant like that. It was all done so quick that all I know is French started it and then he laughed. ... I "was holding the end, just the same as that, the rubble car in that position. When we got her started of course I had to follow the car around but instead of him going with me and helping me to let it down he started it and then let go. . . . He shoved it because I was right in there. There was nothing to stop it at all. I had hold of the end of the car expecting Mr. French to come around with me when he started it. Instead of doing that he shoved it and then stood back. Just stepped back and give it a shove. ’ ’

The evidence of the plaintiff was such as to eliminate the question as to unsafe place in which to work, for he says it was safe. The defendants showed that four men were turning the rubble car. That two of them were lifting the car upon the edge and the plaintiff and another were there to catch it as it came over and ease it down. Defendant’s contention is described by French in this language:

“Q. What were the positions of these four men with regard to the push car when you turned it over? A. That is, our position when we were turning it over?
“Q. Yes. A. Why, there was myself and Kincade on one side raising it up' and McGinnis and Ferguson on the. other to catch it as it come over and let it down,
“Q. Suppose the main car was placed north and south, that being the main car and that the push car, illustrating the position of the men on the car and how it was turned over? A. Yes, sir.
“Q. Turn it the other way? A. I can’t tell myself which is north and south here. This is lengthways of the car; this would be the push car across lengthways of the main car. I got at this comer, Kincade at this comer, and McGinnis and Ferguson over on this side. When we raised it up in this manner they was to catch it and let it down on the other side. Those were our positions as near as I can remember.
“Q. Who raised the car up? A. Kincade and myself.
“Q. How far did you raise it up? A. Quite perpendicular, until it stood on edge so they could get hold of it and let it down.
‘ ‘ Q. Then the men on the other side were to catch it and let it down? A. Yes, sir.
“Q. What was McGinnis’ position on the other side of the car? A. He was over here on this corner, this side of the car. His comer was here and he was to catch it and let it down.
“Q. Was he standing opposite Kincade or opposite you? A. Kincade.
“Q. Who was opposite your corner? A. John Ferguson.
“ Q. After you and Kincade had raised the car up, what was done with it then? A. Why, it was turned on over and it turned tolerably fast.
“Q. Did they catch the car on the other side? A. Ferguson caught his corner. I can’t say whether McGinnis had hold of his corner or not, hut the car was standing up that way and I couldn’t tell on the other side whether he had hold of it or not. It’s about as high as a man’s head, nearly as high, but then as it came over Ferguson held his corner and McGinnis let loose and his corner swung that way and the next I saw McGinnis" fell off the car. I suppose the car must have fallen on his foot but he said not, that it was just the jar of the ground that hurt his feet.
“Q. After you and Kincade raised the car up, what was the duty of the men on the other side as to letting it down? A. Take it and let it down so as to not let it fall.
“ Q. After you and Kincade raised it up there was nothing for you to do? A. No, sir; that was our part of the work. Two men to raise it up and two to let it down.
“Q. After you raised it up did you shove the car at all? A. No, sir.-
“Q. You did not? A. No, sir; not after it was perpendicular.
“Q. Did you simply raise the car up? A. Yes, sir.”

Defendant’s testimony further showed that there were no directions by defendant Welsh to plaintiffs.

The foregoing sufficiently sets out the evidence for a disposition of this case as we see the law.

From the negligence pleaded and the proof made, the railway company, if liable at all, is liable upon the principle of Respondeat Superior. There are two classes of cas'es falling under this doctrine, one wherein the master is held liable for the non-feasance or negligent failure of the servant to perform a duty, and the other where the master is held liable for the misfeasance or negligent performance of a duty. In the one case the servant simply negligently fails to do what should have been done, and in the other he negligently does what'should have been done and properly done.

In the first class of cases, the servant is not liable to third parties, but the master under the rule of Respondeat Superior is liable. In the second class both are liable to third parties. The servant, because he actually does the wrongful act occasioning the injury. The master, because under the rule of Respond-eat Superior, he is liable for the negligent act of the agent done within the scope of his employment, and in the course and performance of his master’s business. In either case the master has recourse upon the servant as for breach of duty to the master.

The case at bar is one for misfeasance, or one of the second class as above classified. Counsel for plaintiff evidently so understood it, or there would have been no joinder of the servant. But whether he did so understand and so act is immaterial, for the evidence so shows. We have quoted at length from the .evidence for the reason that in the brief, counsel for plaintiff undertakes to argue that the act of French in lifting and pushing the rubble car in the way he did was misfeasance, but his act in failing to assist in letting down the car was non-feasance. This will not do. The thing to be done was to turn over a rubble car. French participated in that work and if he was guilty of negligence in doing the work, it was misfeasance.

By the verdict of the jury French was found not guilty of negligence and appellant claims, and we think rightfully, that if French is adjudged not guilty of the charge of negligence, it likewise stands discharged. If defendant is liable at all under the pleadings and evidence it is liable by reason of the negligence of French and not otherwise. It is a travesty upon the law to say that French has been guilty of no negligence in this case, and by the same verdict and judgment say the defendant is guilty of negligence, through French, its servant, for which it is liable and should pay damages. Here were these men in the performance of a duty, that of loading their tools upon a car, which the evidence showed occurred every time they moved from one place to another, and that was every two or three days. The work to be done was lawful work, and work in the regular course of employment.

There are two parallel cases by the Supreme Court of Washington, wherein, in our judgment, the true rule is announced. In case of Doremus v. Root, 23 Wash. l. c. 715, the court says:

“Joint tortfeasors are liable to the injured person (other than that he may have but one satisfaction), as if the act causing the injury was the separate act of each of them, and they have, except in certain special cases, no right of contribution among themselves. But the defendants in this character of action are in no sense joint tortfeasors, nor does their liability to the plaintiff rest upon the same or like grounds. The act of an employee, even in legal intendment, is. not the act of his employer, unless the employer either previously directs the act to be done or subsequently ratifies it. For injuries caused by the negligent act of an employee not directed or ratified by the employer, the employee is liable because he committed the act which caused the injury, while the employer is liable, not as if the act was done by himself, but because of the doctrine of Respondeat Superior, the rule of law which holds the master responsible for the negligent act of his servant, committed while the servant is acting within the general scope of his employment and engaged in his master’s business. The primary liability to answer for such an act, therefore, rests upon the employee, and when the employer is compellel to answer in damages therefor he can recover over against the employee. [Oceanic Steamer Nav. Co. v. Compania Transatlantica Espanola, 134 N. Y. 461 (31 N. E. 987, 30 Am. St. Rep. 685) ; note to Village of Carterville v. Cook, 16 Am. St. Rep. 248; 1 Shearman & Redfield, Negligence (5 Ed.), sec. 242; 2 Van Fleet, Former Adjudication, p. 1162.]”

Again, on page 716, Fullerton, J., in that case, further says: “So also, in such an action, whether broug’ht against the employer severally or jointly with the employee, the gravamen of the charge is, and must be, the negligence of the employee, and no recovery can be had unless it be proven, and found by the jury, that the employee was negligent. Stated in another way: if the employee who causes the injury is free from liability therefor, his employer must also, be free from liability. This was held in Railroad v. Jopes, 142 U. S. 18 (12 Sup. Ct. Rep. 109).”

In the Doremus case, supra, the verdict was ag’ainst defendant railway company, but said nothing as to defendant Root. By the judgment, Root, a conductor of the railway' company, was exonerated of negligence, and the railroad company found liable, and it appealed. As in the case at bar, the plaintiff did not appeal from the judgment in favor of Root. The court reversed the judgment and remanded the case with directions to the lower court to enter judgment for the defendant.

In the case of Stevick v. Railroad, 39 Wash. l. c. 506, the court, through Mount, C. J., says:

“The only negligence alleged or attempted to be proven was that the engine was out of repair and was leaking steam, and that Gregg, the agent of the company, had notice to repair it. The defendant Gregg was joined in the action by reason of the fact that he was the master mechanic in charge of the engine, knew its condition, and, it is alleged, neglected to make the necessary repairs, The fact was admitted that the defendant Gregg was the master mechanic in charge of the engine, and that it was his duty to keep it in repair. When the jury found that defendant Gregg was not negligent, then it necessarily followed that the railway company was not negligent, because the negligence of the railway company, as stated in the complaint, is based upon the negligence of Gregg. It is true that the complaint states ‘ that defendants, and both of them, negligently failed to repair said locomotive,’ but the complaint, taken as a whole, shows that the negligence of the company is based entirely upon the alleged negligence of its servant Gregg in charge of its locomotives. The jury, having found that defendant Gregg was not negligent, and having returned a verdict in his favor, necessarily exonerated the railway company. [Doremus v. Root, 23 Wash. 719, 63 Pac. 572, 54 L. R. A. 649.]”

In this case the verdict was practically in the form of the verdict in the case at bar. It found for the defendant Gregg, the employee, and against the railway company. The court reversed the judgment and ordered the action dismissed.

In our State, in case of Delaplain v. Kansas City, 109 Mo. App. l. c. 113, the Kansas City Court of Appeals has touched upon the question herein involved. The city and its contractor had been sued for negligence. The negligence was that of the contractor. Plaintiff had judgment and the lower court set aside the judgment for alleged errors in the instructions and refusal of instructions. The trial court had refused an instruction asked by Walsh, the contractor, directing a separate finding as to the two defendants. Upon this point Broaddus, J., says:

“But we cannot agree with the trial court that there was error in refusing to give defendant Walsh’s instruction that the jury might find separately as to him. The city could not have been liable under the proof unless the defendant Walsh had been guilty of negligence on his part. ’ ’

Because of the rule we here announce, it is generally held that where the action is one involving the doctrine of Respondeat Superior, a judgment in separate actions acquitting the servant bars the action against the master, and vice versa.

We are cited by respondent to the case of Berkson v. Railroad, 144 Mo. 211. That case does not conflict with the views herein expressed. In the case at bar every element of negligence was eliminated from the case by plaintiff’s testimony, except the alleged negligence of the servant French. This negligence consisted of negligently performing a duty in the doing of a lawful act. It is a case where the master is entitled to contribution from the servant. The Berkson case is not in this case. It is one of joint tortfeasors, pure and simple, and in which there is no right to contribution. The court puts it upon that ground. On page 217, it is said:

“If the jury found that the cable car company was guilty of a tort in the nature of a trespass in entering upon and changing the grade of the street in front of plaintiff’s property it was liable for the entire amount of damages caused by its act, without reference to the question as to who else or how many others participated in the same wrong. Between joint wrongdoers no right of contribution exists, that one can not be heard to complain that all guilty of the wrong have not been included in the same action or included in one common judgment rendered as the result of its prosecution.”

The action in the Berkson case was in the nature of a trespass, a pure tort, and a trespass which was directed to be committed by the railway company.

We are firmly of the opinion that in cases where the right to recover is dependent solely upon the doctrine of Respondeat Superior, and there is a finding that the servant, through whose negligence the master is attempted to he held liable, has not been negligent, as was true in the ease in hand, there should be no judgment against the master.

The verdict in this case is a monstrosity. The jury say French was guilty of no negligence, yet, in the same breath, say the company was guilty of negligence, although nothing further was done by the company than what it did through French, its servant. Such a verdict is wrong, it is inconsistent and unreasonable.

The conclusion reached upon this proposition renders further inquiry as to other questions unnecessary.

French has been acquitted of the charge of negligence. Plaintiff takes no further action as to him by way of appeal or otherwise. The ease falls strictly within the case in 39 Washington.

From the foregoing conclusions it follows that the judgment should be reversed and it is so ordered.

All concur.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    MATTIE ETTA LESLIE v. G. W. CHASE & SON MERCANTILE COMPANY, Appellant.
    Division One,
    December 22, 1906.
    1. CHANGE OF VENUE: Two Judges: Necessary Proof Against Other. 'Where there are two judges of a circuit court, an application for a change of venue alleging the prejudice of both is as to the one in whose division the cause is pending sustained by the affidavit alone, but the affidavit is not sufficient to disqualify the judge of the other division; as to him there must be satisfactory proof.
    2. -: Agreement Upon Another Judge: His Refusal: Rein- , statement of Motion. Where an application and affidavit for change of venue on account of the disqualification of the judge were made by one of the parties, and was sustained, and the parties agree upon a judge of another circuit to' try the cause, and he appears and of his own motion continues the cause, and departs and thereafter refuses to have anything further to do with the case, the judge to whom the application was made cannot thereafter of his own motion set aside the continuance and of his own motion call up the application and grant a change thereon. Unless the applicant ask that the application be revived, the agreement would be a final disposition thereof.
    3. -: No Authority: Record Proper: Appeal. Where the record proper snows on its face that the court had no legal authority to make the order for a change of venue, the order gives the court to which the case is sent no jurisdiction; and if that court acquires jurisdiction, it will only be by virtue of the fact that it is a court of general jurisdiction and the parties without objection submitted to its jurisdiction. But as in this case the defendant objected to the jurisdiction and filed his bill of exceptions, no jurisdiction of him was acquired.
    4. -: Meaning. Technically the words “change of venue” mean a change to another county, and formerly in this State and yet, when there is but one judge in the circuit, they mean a change to another county, except when the change is granted, on account of the disqualification of the judge, when they mean to another county in another circuit. But where there is more than one judge in the circuit, the party asking for the change on account of the disqualification of the judge gets what he asks for when the change is to another division of the same court. And either of these constructions of the word “venue” is allowable. . .
    5. -: In Civil Cases. The statutes in reference to change of venue in criminal cases are different from those in reference to changes in civil cases in circuits having more than one circuit judge.
    Appeal from Platte Circuit Court, — Row. A. D. Burnes, Judge.
    Reversed and remanded (with directions).

      Thomas F. Ryan and' Rush & Stringfellow for appellant.
    The Platte Circuit Court erred in assuming jurisdiction of this cause. The order made by the judge of the Buchanan Circuit Court, purporting to transfer this cause to the Platte Circuit Court, was without authority of law and void and did not confer any jurisdiction upon the Platte Circuit Court. When the Buchanan Circuit Court sustained the application of the defendant for a change of venue and the parties agreed upon Judge Burnes, of the Platte Circuit Court, to try said cause, and he accepted said appointment .and proceeded with the trial of said cause and made an order continuing said cause until the next term of court, he was then clothed with full authority to try the same and retained jurisdiction thereof until the final determination of the cause, and his powers and duties ceased only at the conclusion of the trial. Therefore, the order transferring this cause to the Platte Circuit Court is invalid and without any binding force as against these defendants. - State v. Shipman, 93 Mo. 157; State ex rel. v. Wear, 129 Mo. 624; State v. Shafer, 36 Mo. App. 691; State v. Spivey, 191 Mo. 108; State ex rel. v. Smith, 176 Mo. 90; State ex rel. v. Port, 178 Mo. 518; Lee v. Power, 75 Mo. 472.

      James W. Boyd for respondent.
    The order made by the circuit court of Buchanan county on July 3, 1903, granting' appellant a change of venue to the circuit court of Platte county, was with authority, and was valid. R. S. 1899', secs. 818-820-822 and 833. (1) Judge Burnes, who had been agreed upon by the parties as special judge to try the case in the circuit court of Buchanan county, absolutely refused, at all times, to do so. He announced in court in person his refusal to act, and put his refusal in writing and furnished it to said court before said order was made by the regular judge of said court. Judge Ramey had the right to make the order. There was nothing else for him to do. State v. Silva, 130 Mo. 440; State v. Hudspeth, 159 Mo. 178; State v. Gillham, 174 Mo. 671. (2) If there is any error in the action of the court in respect to a change of venue it was waived by the defendant because no exception was saved and no bill of exceptions embodying any objection or exception was made or filed in the circuit court of Buchanan county. Wright v. Kansas City, 187 Mo. 696; State v. Nave, 185 Mo. 133; State v. Lynn, 1691 Mo. 671; State ex rel. v. McKee, 150 Mo. 233'; Nichols, v. Stevens, 123 Mo. 120; Steams v. Railroad, 94 Mo. 321; Potter v. Adams’ Executors, 24 Mo. 161. (3) - The order accepting Judge Burnes’ refusal to act and changing the venue was made at the same term of the court in which the application was filed. The court could at any time in the same term review its actions and make such orders as would best carry out the court’s final view of the matter. (4) The defendant appeared in the circuit court of Platte county, filed its answer on the 17th day of August, 1903, and then went to trial before Judge Bumes, judge of said court, the same judge who declined to act as special judge in the circuit court of Buchanan county. The defendant asked for a change of venue, wanted Judge Bumes to try the case, and he did so. Under no view of the case, can the defendant now be heard to complain of the order changing the venue. (5) The defendant having failed to object or save any exceptions to the order changing the venue in the circuit court of Buchanan county, its right to object, if it ever had any, was lost. The defendant could not go to Platte county and make an objection to an order made in the circuit court of Buchanan county, when it had waived all objections to such order in the circuit court of Buchanan county. (6) In the final bill of exceptions no motion to remand is included or mentioned. If there was a term bill, and it is not included in the final bill of exceptions, nothing in the term bill is included or preserved in the record, and the action of the circuit court of Platte county, if it acted, at the August term, 1903, is not now open to review. Smith v. Baer, 166 Mo. 401; Pace v. Roberts, 103 Mo. App. 668.
   VALLIANT, J.

This is a suit for damages for personal injuries which plaintiff alleges she suffered through the negligence of defendant. The cause was begun in the circuit court of Buchanan county, and was assigned to Division No. 2 of that court. At the May term, 1903, an order was made and entered of record in that court transferring the cause to the circuit of Platte county, where it was tried and a judgment was rendered in favor of the plaintiff for $5,000, from which judgment the defendant has appealed.

The first question in the record is as to the validity of the order of the Buchanan Circuit Court directing the change of venue to Platte county. On that subject the record shows as follows:

May 22, 1903, defendant filed a motion in Division No. 2 of the Buchanan Circuit Court for a change of venue on the grounds that the judge of that division was prejudiced against the defendant and that the opposite party had an undue influence over his mind. The motion was in due form and supported by the affidavit required by statute. On the next day the plaintiff filed a paper referring to defendant’s application for a change of venue and averring in that connection that the defendant had an undue influence over the mind of the judge in Division No. 1 of that court and that for that reason she could not have a fair trial in Division No. 1. The paper was signed by the plaintiff’s attorney and verified by her own affidavit. ■

May 23rd an order of court was made and entered of record in words following, to-wit:

“Comes now the plaintiff by her attorney, and files motion to not transfer this cause to Division No. One; come now the parties plaintiff and defendant, by their respective attorneys, and the motion for change of venue, heretofore filed herein, is now taken up, considered by the court, and the same is by the court sustained. And now here the application of plaintiff asking that this cause be not transferred to tbe Judge of Division No. One of tbis court is at tbis time considered by the court and tbe same is by tbe court granted. And now bere defendant deposits with tbe clerk of tbis court tbe sum of ten dollars to cover costs of said change of venue, and by agreement of attorneys Hon. A. D. Burnes, Judge of tbe Fifth Judicial Circuit, is called to try tbis cause.”

June 19th of the same term Judge Burnes appeared and presiding in tbe court made tbe following order in tbe cause which was entered on tbe record of tbe court: “Now bere tbis cause is by tbe court continued.” That is tbe last appearance, so- far as the record shows, of Judge Burnes in tbe case.

Afterwards, July 3rd, during tbe same term, tbe regular judge of that court, Division No. 2, without motion by either party, made an order, which was entered of record, setting aside tbe order of continuance that Judge Burnes bad made and ordered that tbe venue for tbe cause be changed to Platte county and transferred it to tbe Platte Circuit Court. Tbe record says that on July 6th, during tbe same term, tbe defendant presented its bill of exceptions to that action of tbe court, which tbe court refused to sign, stating as tbe reason therefor that it was untrue.

When tbe cause came before tbe Platte Circuit Court tbe defendant appeared and moved tbe court to remand it to tbe Buchanan Circuit, and in support of tbe motion filed an affidavit of one of its attorneys in which among other things it was stated that Judge Burnes bad accepted tbe call to try tbe case and bad assumed jurisdiction, bad in fact tried tbe Dákan case, which was a companion case to tbis, depending on tbe same state of facts, bad beard tbe arguments of counsel on certain motions common to both cases, and after trying tbe Dakan case made tbe order of bis own motion to continue tbis case to tbe next term and took bis departure, and that at the time the order changing the venue to Platte county was made Judge Burnes was absent from the State, temporarily in Montana. The motion was overruled and exception taken, which was duly preserved in the hill of exceptions. The trial then progressed in the Platte Circuit Court and, as already stated, resulted in a judgment for plaintiff for $5,000.

The order made hy the regular judge of Division No. 2 transferring the cause to the Platte Circuit Court is in these words:

“Now at this time this cause coming before the court for further consideration and disposition under the defendant’s application for a change of venue, which was made and filed herein on May 22nd, and during this term of this court, which said application for change of venue was partially considered hy this court on May 22nd, and then sustained, hut at that time no change of venue was granted hy the court because the attorneys of both plaintiff and defendant then, and there in open court agreed, which agreement was entered of record, that the Hon. A. D. Burnes, Judge of the Fifth Judicial Circuit of this State, might try said cause; and now the parties to the suit being present hy their respective attorneys, and it appearing and being made known to this court that the Hon. A. D. Burnes, Judge of the Circuit Court of the Fifth Judicial Circuit of Missouri, has at all times since said agreement between the said attorneys was made and entered of record, on May 22nd, refused and declined to preside or act or sit as judge in said cause, or to proceed with it in any manner, or to try it.
“And the Hon. A. D. Burnes, judge of the said circuit court, doth here now still refuse and decline to act, preside or sit as judge in said cause, or to proceed with it in any manner or to try it.
“Now, therefore, it is ordered that the 'order made in this court, on June 19th, during this term of court, purporting to be an order continuing this case until the next term of this court, is hereby set aside, disregarded, and for naught held. And it further appearing to this court that the Judge of Division No. One of this court has, during all said time, been disqualified and still is disqualified to sit, preside or try said cause as judge thereof, and that he cannot sit, preside or act as judge therein.
“And it further also appearing to this court at this time that the parties to this suit have declined,, failed and refused to agree and have not agreed upon a special judge to sit, preside in and act as judge in said cause; and it further appearing to this court that both parties to this suit have failed and refused to request, have not requested, and do not request the election of a special judge to try the cause; and it further appearing to this court that the plaintiff herein declines and refuses to request the election of a special judge herein, but defendant does request the election of a special judge to try the case.
“It is now hereby ordered that in compliance with the defendant’s application for a change of venue heretofore sustained herein, a change of venue be, and the same is hereby awarded to the county of Platte, which adjoins this county, this cause is hereby transferred to the circuit court within and for said county of Platte. ’ ’’

From this it will be seen that, although, according to the recital, the parties were present in court hy their attorneys, yet neither party was moving the court to' take any action in the case and the court based its order solely on the motion for the change of venue which the-defendant had filed on May 22nd, and concerning which the order recites that court on May 22nd partially considered “and then sustained,” but did not then order a change of venue because the parties agreed to call in Judge Burnes to try the case.

So far as the parties to the suit were concerned the only reason that either of them asserted for not wishing to try the case in one or the other division of the Buchanan Circuit Court was the alleged prejudice of the judges respectively, one party apprehending that he could not have a fair trial before one of the two judges, the other before the other judge, neither suggested any fear of a fair trial before a jury of their county. After both sides had by their respective motions thus expressed on the record their desires in regard to the venue, they agreed to a solution of the difficulty which satisfied both their demands and that agreement was the end of that controversy; it was the disposal of both motions, it was in effect an agreement to try the cause before Judge Burnes in Buchanan county in lieu of a change of venue as originally asked. Of course, they could not compel Judge Burnes to come to Buchanan county and try their lawsuit, and if he had declined the invitation the cause would have stood on the docket of Division No. 2 of the Buchanan circuit court for further disposal under the regular judge of that court. In such event, if either party, having at that time the right to ask a change of venue, had moved in that direction, the regular judge of that court would have had authority to pass on the motion. The plaintiff had never moved for a change of venue, she had only said in reference to defendant’s motion that if a change of venue should be awarded it ought not to be to Division No. 1 of the Buchanan Circuit Court; the defendant alone had moved for a change of venue, and if the right to ask the change had not been lost or abandoned by the agreement to call in Judge Burnes the defendant alone had the right to revive the motion, alone had the right to ask for a change of venue. But so far as we can gather from this record the defendant not only did not ask it but opposed it, and when tbe order was made, made a vain effort to get in the record its exception. Tbe order transferring tbe cause to tbe Platte Circuit Court starts out with saying that tbe motion for a change of venue was partially considered on May 22d, and was then sustained, but that tbe change of venue was not at that time granted because tbe parties agreed in open court that Judge Burnes should try tbe case. Tbe recital is a little obscure in its meaning', if not contradictory in its forms of expression: “partially considered,” “and then sustained, ’ ’ yet tbe change of venue, tbe only thing asked for, was not granted because tbe parties agreed to another disposition of tbe motion. Then tbe order goes on to recite that Judge Burnes “has at all times since said agreement between said attorneys was made and entered of record, on May 22nd, refused and declined to preside or act or sit as judge in said cause, or to proceed with it in any manner or' to try it. ’ ’ That recital is contradicted by tbe court record in the case which shows that Judge Burnes did appear and preside in that court on June 19th and of bis own motion made an order to continue this cause to tbe next term. If therefore tbe judge made tbe order transferring- tbe cause to Platte county on tbe ground stated in tbe recital he did so under a mistake of fact as tbe court record shows.

After tbe above recitals tbe order transferring the cause to Platte county proceeds to say that Judge Burnes “doth here now still refuse and decline to act,” etc. That recital was perhaps intended to. mean that Judge Burnes was constructively before tbe court at that time refusing and declining to act, because on tbe oral argument before us counsel on both sides concurred in the statement that Judge Burnes was not then actually present in person and tbe statement of counsel for appellant, which, was not denied, was that he was on a summer vacation in Montana.

Then the order proceeds to vacate and set aside the order of continuance made by Judge Burnes. Then it goes on to recite that the judge of Division No. 1 “has during all said time been disqualified and still is disqualified to sit, preside or try said cause as judge thereof.”

It has been decided by this court that when an application for a change of venue is made in due time based on the prejudice of the judge or the undue influence of the other party over his mind and supported by the proper affidavit, the judge to whom it is addressed must grant the petition without further proof of the alleged cause, but that when the application seeks to disqualify some other judge on like grounds it should not be granted without proof to satisfy the judge to whom the application is made that the alleged grounds for disqualification are true. [Guy v. Railroad, 197 Mo. 174.]

It does not appear in this record, from the recitals in the order or otherwise, that there was any trial of that question, but for aught that appears the court took the plaintiff’s affidavit as all-sufficient on that point. That the court had no right to do.

Then after reciting that the parties had not agreed on a special judge or agreed to elect one but that the defendant had so requested, the order awards the change of venue “in compliance with the defendant’s application for a change of venue heretofore sustained herein.” Thus the defendant’s motion, which had therefore been disposed of under agreement, was called up by the court sua sponte and sustained, not only without request of the defendant, but, in so far as we can discover from the record, against its will.

The agreement of counsel to call Judge Burnes was, for the time being at least, a satisfaction of the demands of both parties and it was a disposal of the motion, as much so as if it had been in express terms withdrawn. We do not say that, in the event the agreement had failed of its purpose because Judge Burnes had declined the invitation, the defendant would not have had the right to renew his motion for- a change of venue or call it up for judgment, but we do say that the agreement itself created a new condition under which the motion was disposed of and that unless the party who made the motion should ask that it be revived because of the failure of the purpose of the agreement, the disposal of the motion by the agreement would be a final disposal, and if the party who made the motion did not see fit to renew it he should be presumed to be satisfied with the -condition in which his futile. agreement to secure the attendance of another judge had placed him, and in that condition, if he neither asked judgment on his motion nor could agree with his adversary for another judge, or the election of a special judge, the cause would stand for trial before the regular judge of the court as if no motion for a change of venue had been made.

Of course, in such case the defendant could not by mere non-action delay the progress of the cause, if he did not see fit to bring to the notice of the court the fact, if it was a fact, that the jtidge chosen had declined the invitation, the plaintiff could have done so; unless defendant should then move in the matter at once he would be considered to have abandoned his former motion.

If a circuit court makes an order for a change of venue in a cause pending before it, when, under the circumstances, there was no legal ground for the order, it is error; but unless the record proper shows on its face that the order was without lawful authority the party objecting to it can bring the error to the attention of the appellate court only by a bill of exceptions filed in the court where the order was made. If, however, the record proper in the court where the order was made shows on its face that the court had no authority to make it, then the order gives the court to which the cause is sent no jurisdiction to try it, and if that court should thereafter acquire any jurisdiction of the cause it would he, not by virtue of that order, but on the ground that it was in itself a court having general jurisdiction over such causes and that the parties to the suit had without objection submitted their cause to its jurisdiction.

In the case at bar the record proper in-the Buchanan Circuit Court shows that that court had no right to make the order transferring the cause to the Platte Circuit Court; therefore, the Platte Circuit Court by virtue of that order acquired no jurisdiction to entertain the cause, and the record in that court shows that the defendant did not willingly submit to its jurisdiction but yielded only when compelled to do so.

The act constituting Buchanan county a judicial circuit in itself, giving it two circuit judges and making of it two divisions, was approved April 13, 1889. [Laws 1889, pp. 73-4.] Unlike the statutes in that respect relating to the circuit courts in Jackson county and the city of St. Louis, the act above mentioned does not expressly require a cause to be sent from one division of the court to another when an application for a change of venue is asked on account of supposed disqualification of the judge, but although there is no such express requirement natural justice would dictate that the parties should not be driven to the expense and labor of going to another county when there is no reason for it. Section 3 of the act above mentioned authorizes the transfer of a cause from one division of the Buchanan Circuit Court to the other on agreement of the parties or their counsel or agreement of the judges of that court; therefore, there is no law to forbid such transfer of. causes, but on tbe contrary it is expressly authorized. We presume that tbe express requirements of tbe statutes relating to the circuit court of Jackson county and the city of St. Louis, that in such case the cause be transferred from one division -to another, were enacted because the General Assembly apprehended that the word “venue” in that connection might be construed by the courts to mean “county,” as in strictness it does, but our courts have not given it that strict construction; we have treated the transfer from one division of a circuit court to another in those circuits where the courts are in divisions as a change of venue. [State ex rel. v. Wofford, 119 Mo. 375; State ex rel. v. Flournoy, 160 Mo. 324; see, also, 4 Ency. Pl. & Pr., p. 375.] The provision for a change of venue as now contained in section 818, Revised Statutes 1899, has been substantially the law of this State from the beginning and was enacted with reference to the general condition of the State, that is, of judicial circuits consisting of one judge each. When there was but one judge in. the circuit a. change of venue meant a change to another county and when the change was granted on account of the disqualification of the judge it meant another county in. another circuit. But when there are two or more judges in the same court and the only ground on which the application for the change of venue is made is the disqualification of the judge of the division in which the cause is pending, the party making the application gets all that he asks for when the cause is sent to another division of the same court and whilst that is not technically a change of venue yet it would be to sacrifice substance to sound to say that it was not virtually a change of venue.

In the case at bar if the application for a change of venue had come on for judgment either originally or after thé supposed declination of Judge Burnes; the court, with the regular judge presiding, should have transferred it to Division No. 1 of the same court unless satisfied by proof adduced that the complaint against the other judge was well founded.

The decisions of this court construing our statutes in reference to changes of venue in criminal cases to which we are referred do not entirely settle the questions we have in this case, because the statutes in reference to changes of venue in criminal cases are different from those we are now considering.

The Buchanan Circuit Court was in error when it ordered that the cause be transferred to the Platte Circuit Court and for that error the judgment of the' Platte Circuit Court is reversed and the cause remanded to that court with directions to return the same to Division No. 2. of the Buchanan Circuit Court and directions to the latter to resume jurisdiction of the cause and proceed with it according to law.

All concur.