Fabbi v. First Nat. Bank of Nevada

• Decision Date: 08 November 1944
• Docket Number: 3417.
• Citation: 153 P.2d 122,62 Nev. 405
• Parties: FABBI v. FIRST NAT. BANK OF NEVADA et al.
• Court: Nevada Supreme Court

153 P.2d 122

62 Nev. 405

FABBI v. FIRST NAT. BANK OF NEVADA et al.

No. 3417.

Supreme Court of Nevada

November 8, 1944

Appeal from Second Judicial District Court, Washoe County; A. J Maestretti, Judge.

Action by Peter Fabbi against the First National Bank of Nevada and others for injuries sustained in an automobile collision. From an order denying plaintiff's motion to change the place of trial, he appeals.

Affirmed.

Lowell Daniels, of Tonopah, and H. R. Cooke, of Reno, for appellant.

Thatcher & Woodburn, of Reno, for respondents.

DUCKER Justice.

This is an appeal by plaintiff, from an order of the Second Judicial District Court of the State of Nevada in and for the County of Washoe, made and entered on May 19, 1944, denying his motion for a change of place of trial.

As the respondents' brief contains a fair summary of the facts and allegations of the opposing affidavits, we will, for convenience adopt it in the main, as a statement of the case, making such amendments as the record may suggest, and omitting allegations we deem immaterial.

The action was originally commenced by the plaintiff in the Fifth Judicial District Court in and for Esmeralda County in June of 1942. The action grew out of an alleged injury received by the plaintiff in an auto collision which occurred in June of 1940 at a point near the town of Blair Junction in Esmeralda County, Nevada. The defendant, Dan Vasilovich, was the driver of the car which collided with that belonging to the plaintiff. The residence of Dan Vasilovich, as well as that of the other individual defendant, Alma M. Holmshaw, was in Reno, Washoe County, Nevada. The corporation defendant, the First National Bank of Nevada, a national banking corporation, had its principal office and place of business also in Reno.

On July 6, 1942, the defendants filed in said Fifth Judicial District Court, a notice of motion to change the venue of the case to Washoe County, Nevada, on the ground that such county was the residence of the individual defendants and of the defendant banking corporation, and that Washoe County was therefore the proper county for the trial. Accompanying this notice of motion was a demand for a change of venue. On July 21, 1942, the attorneys for plaintiff and defendants entered into a stipulation that the action might be transferred from Esmeralda County to Washoe County, and that the Esmeralda District Court might make an order to that effect. Accordingly, such order was entered and the case thereafter docketed in said Second Judicial District Court Department No. 1, thereof. Thereafter, on the 22d of October 1942, answers were filed on behalf of defendants. Thereafter depositions were taken of witnesses on behalf of the defendants, and also one deposition taken on the part of plaintiff, and were filed in the action. On March 20, 1944, the plaintiff filed in the action a notice of motion for change of place of trial to Tonopah, Nye County, Nevada, in said Fifth Judicial District Court upon the grounds that the convenience of the witnesses and the ends of justice would be promoted by such change. This notice was accompanied by an affidavit of plaintiff in support thereof. This affidavit stated the names of six witnesses expected to be called by the plaintiff, all of whom resided at Tonopah, Nevada. The first of these witnesses mentioned in the affidavit was Dr. R. R. Craig, who had treated the plaintiff for his injuries in the accident. The affidavit states in detail what the witness will testify to in that regard. The second witness was Fred Steen, connected with the Tonopah Mines Hospital, who, plaintiff alleged, would testify to the cost of his hospitalization. The third witness mentioned in the affidavit was C. O. Bingham, an automobile repair man, who, plaintiff alleged, would testify as to the condition of plaintiff's automobile, before and after the accident. The fourth mentioned was Pete Beko, who was expected to testify as to the position of plaintiff's car at the place of the accident, and its damaged condition, and the condition of the highway at that point. The fifth witness was Dan Johnson, who plaintiff expected to call as a witness on the trial, as to the condition of the highway at and near the point of accident. The sixth witness mentioned by plaintiff was Claude Pellando, who plaintiff expected to testify as to plaintiff's physical condition both prior to and after the accident, and to testify as to the work performed by plaintiff as a baker prior to the accident. Plaintiff further alleged that he had been advised by his attorneys that he could not safely proceed to trial without the testimony of each of said witnesses.

He further alleged that the accident happended near Tonopah and that it would be desirable that a view of the locus in quo be had by the court and the jury (if a jury be had); that he was a man of limited means and could not afford to pay the expenses of said witnesses to go from Tonopah to Reno and return (even if they could be induced to attend at Reno) together with living expenses at Reno for three or four days, and compensation for their loss of time, all of which would aggregate to the estimated amount of $450 or $500; that the cost of taking their testimony by depositions would be expensive and extremely burdensome upon plaintiff; that some of the testimony of witnesses might be only by way of rebuttal, and plaintiff could not anticipate just what testimony he would be required to rebut; and that he also expected to have his son and daughter attend the trial and testify as to divers issues of fact made by the pleadings.

The affidavit also set forth that Dr. R. R. Craig had charge of the Tonopah Mines Hospital, which was usually full of patients, and it would be extremely difficult for Dr. Craig to absent himself from Tonopah.

After noticing this motion and before the hearing thereon the following order was entered in the action on May 4, 1944:

"Upon motion of counsel for plaintiff, attorneys for defendant consenting thereto, it is ordered that the above entitled action be and hereby is assigned to the Honorable A. J. Maestretti, Department No. 2 of this court, to hear, try and determine.

Wm. McKnight, District Judge."

Thereafter plaintiff called up his motion for a change of venue, in said Department No. 2, and on the hearing introduced the said affidavit of Peter Fabbi. In opposition to the motion the defendants introduced the affidavit of Paul L. Dorman, Vice President and Trust Officer of the First National Bank, who made the affidavit on behalf of the bank and the other defendants in the action. The affidavit set forth that at the date of the accident the car driven by Vasilovich had been held by defendants Holmshaw and First National Bank, as executors of the estate of Harry F. Holmshaw, deceased; that all the records pertaining to the estate and to defendants Holmshaw and First National Bank were kept in Reno, Washoe County, Nevada; that defendants did not know what evidence plaintiff would produce to attempt to connect defendants Holmshaw and First National Bank with the accident mentioned in plaintiff's complaint, because it nowhere alleges that Vasilovich was employed by the defendants, or was acting for them or was within the course and scope of any employment at the time of the alleged accident, but simply charges all of the defendants with "operating the car". The affidavit of Dorman further set out that in order for the defendants to properly defend the action, each of the individual defendants would have to be present at the trial and the First National Bank would be required to have a representative at the trial. It further alleged that in order to properly defend the action the defendants would have to have a physical examination made of the plaintiff by a qualified physician, and would have to have such physician testify at the trial; that if the trial was changed to Tonopah, Nevada, the defendants would be required to pay the expenses of a physician from Reno to Tonopah and return, and his expenses while in Tonopah at the trial of the action; that the defendant Alma Holmshaw resided in Reno, and in order to be present at the trial, if the same were held in Tonopah, she would be required to pay her expenses from Reno to Tonopah and return and her expenses while at Tonopah; that defendant Dan Vasilovich formerly resided in Reno, but is now in the armed forces of the United States; that it is absolutely essential to defendants' case that Vasilovich be present at the trial of the action; that at the time of the affidavit he was stationed at Oceanside, California; that if he is able to attend said trial at all, in person, it is very doubtful whether he could secure a long enough furlough to attend such a trial at Tonopah; that more time would be required in travelling from Oceanside to Tonopah than if the trial were held in Reno; that if he was unable to attend...