Freeman v. Cleary

• Decision Date: 29 March 1911
• Citation: 136 S.W. 521
• Parties: FREEMAN v. CLEARY.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

136 S.W. 521

FREEMAN v. CLEARY.^†

Court of Civil Appeals of Texas.

March 29, 1911.

Rehearing Denied April 26, 1911.

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by H. J. Cleary against T. J. Freeman, receiver of the International & Great Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

King & Morris, Hicks & Hicks, and F. C. Davis, for appellant. Bertrand & Arnold, Perry J. Lewis, and H. C. Carter, for appellee.

FLY, J.

Appellee sued T. J. Freeman, appellant, as receiver of the International & Great Northern Railroad Company, alleging that he was a passenger on a train belonging to appellant, on or about June 14, 1908, and had serious and permanent injuries inflicted on him through the negligence of appellant, in permitting or causing the train on which he was riding to come in violent contact and collision with some object on the track. The cause was tried by jury, and resulted in a verdict and judgment for appellee for $16,000.

In deference to the verdict of the jury, which has testimony to support it, we conclude that appellee was seriously and permanently injured through the negligence of appellant.

The first assignment of error assails the action of the court in overruling the application of appellant to change the venue from Bexar county. The three grounds mentioned in statute (article 1271, Rev. Stats. 1895) namely, that there exists in Bexar county so great a prejudice against the receiver and the railroad company that they cannot obtain a fair and impartial trial; that there is a combination against the receiver and company, instigated by influential persons, by reason of which they cannot expect a fair and impartial trial, and for other good and sufficient causes. The first ground is the only one insisted on in this court. The application for change of venue was assailed by appellee by a full denial of the allegation of prejudice and combination, and of the existence of any other good and sufficient cause for change of venue. The contest was supported by the affidavit of three citizens of Bexar county.

An application for a change of venue is addressed to the sound discretion of the trial judge, and, unless it is apparent from the record that such discretion has been abused and an injustice done to the appellant, an appellate court will not disturb the order of the trial court. San Antonio v. Jones, 28 Tex. 19. It is the rule that the burden is imposed upon the complaining party of showing very clearly and very strongly that the trial court abused its discretion, and the rule is stated even stronger by some courts. Elliott, App. Proc. § 604, and authorities cited in note.

We do not think that it appears from the evidence adduced for and against the application that there was any abuse of judicial discretion; but, on the other hand, there is evidence, even on the part of the witnesses for appellant, that tends to sustain the judgment of the court. Some of the witnesses not only attacked the fairness and impartiality of the jurors of their own county, but extended it to the whole state, which rendered it unworthy of consideration, for, if sustained, no suits for damages arising from death or personal injuries could be prosecuted anywhere in Texas. Others of appellant's witnesses testified that fair and impartial jurors could be obtained in Bexar county; one stating that there are thousands of impartial men in the county. Another witness testified that the jurors in the county are as fair as in any county in the state. Others seemed to think that the manner of choosing the juries was responsible, and not a want of impartiality on the part of the mass of the jurors. One witness who had been engaged in suits with railroads for damages growing out of cattle shipments did not seem to think that the prejudice against railroads extended to cattle shipments, but were confined to personal injury suits. He had been on a jury a few days before, and thought that the jury "looked like it was pretty good."

In addition to that part of the testimony of the witnesses which was favorable to appellant, two witnesses were introduced by appellee, one being the county clerk, who swore that railroads could get a fair trial in Bexar county—as fair as in any other county in Texas. One witness, who has been district attorney and had a wide experience with jurors in Bexar county, testified: "If I were trying a corporation suit, I would expect to get just as fair a trial as I would if it were a suit between two individuals; and, if I did not do it, I would not blame the court or the system for it, but my error in taking the wrong man; that enters into every class of litigation."

In addition to the evidence contained in the bill of exceptions taken by appellant to the refusal of change of venue, the court appended thereto the qualification that after the application was overruled a panel of 27 men that had been regularly drawn from the wheel was tendered to the parties, and each of them was closely questioned by plaintiff and defendant, and a jury was selected from that panel; each one swearing that he could render a fair and impartial verdict in the case. The court was acquainted with the witnesses, knew their occupations or professions, and the peculiar bias of mind each would have by his employment, business connections, and environments, and was therefore in a position to give such force and weight to the testimony as it might be entitled to. We are of the opinion that he did not err in overruling the application for change of venue.

If, as testified by perhaps a majority of the witnesses, there is a prejudice against corporations in every county in Texas, it would present a condition of affairs greatly to be regretted; but such a state of facts could form no basis for a change of venue, because each corporation case would become peripatetic in its nature, and be like unto the dove sent out from the ark, which "found no rest for the sole of her foot," because if granted in one county on such general prejudice it should be granted in each of the others, until it has run the gauntlet of them all. We mention this because the existence of general prejudice against any and all corporations is made the basis of a large portion of the evidence introduced by appellant as to prejudice in Bexar county.

Change of venue is based upon the theory that a county can be found where the prejudice in the original county does not exist, and prejudice of a general nature, which exists to a greater or less extent among the great body of the people, cannot form the basis for a change of venue. Proper care can and should be exercised in so using the machinery of trial courts that the fairest and best men in the community shall be chosen to serve upon the juries, men who will stifie and hold in abeyance any bias they may have in favor of the individual as against a corporation, and who will perform their duty regardless of any bias in favor of the one or prejudice against the other. That there are thousands of such men in Bexar county the testimony shows, and with the upright judiciary in the trial courts chosen by the people to instruct such jurymen in the law there should be no cause for complaint.

The same rigid tests, as to change of venue, should not, we think, be applied in civil cases where there is a general feeling in the community against a certain class of corporations, or all corporations, as would be applied in cases of murder, and other heinous crimes, where a community or county is enraged over the perpetration of the offense, and so inflamed as to render a fair trial improbable, if not impossible. Under such circumstances, where the life or liberty of a citizen is at stake, and where the recent crime has inflamed the people, more rigid rules would be applied and enforced, than in a case where there is no prejudice against the individual, and where there has been nothing to arouse the people, but where a normal feeling exists. Appellant cites but one civil case in support of his propositions, but cites a number of criminal cases, in all of which the defendants had been indicted for murder, and in some, if not all, of which the right to a change of venue was based on the atrociousness of the crime, and the horror and indignation that its perpetration had aroused in the entire community. In criminal, as well as civil, cases, however, it has been the uniform holding that the question of a change of venue is a matter resting within the sound discretion of the trial court, and, unless there is an abuse of such discretion, its action will not be disturbed. There is nothing in the case of Trimble v. Borroughs, 41 Tex. Civ. App. 554, 95 S. W. 614, that could affect the decision in this case, which depends upon the peculiar facts and circumstances adduced on the hearing of the application for change of venue.

The second assignment of error is that the court erred in the testimony of witness Strong. The first proposition is that the question, "What, if any, unusual condition, did you observe about the groin of Mr. Cleary?" is leading. We think it was not leading. It did not suggest the answer, as clearly appears from the answer, "No unusual conditions."

The answer did not call for any matter of expert knowledge. Any person of ordinary intelligence would know, after seeing a man naked, if he observed anything unusual about the man's groin, as would be the case if he had hernia.

There is no effort to indicate that the answer was prejudicial to appellant, not even a statement to that effect, and this court cannot base error requiring a reversal on mere abstractions. There is no reference to any part of the record, which might be consulted in order to ascertain if appellant was injured by the question and answer, and we cannot hold that because a question is leading, and the answer to it not given by an expert, that appellant was injured by it. It may have...