Hesselbrock v. Burlington County

• Decision Date: 19 August 1933
• Docket Number: No. 404.,404.
• Citation: 168 A. 45
• Parties: HESSELBROCK v. BURLINGTON COUNTY.
• Court: New Jersey Supreme Court

168 A. 45

HESSELBROCK

v. BURLINGTON COUNTY.

No. 404.

Supreme Court of New Jersey.

Aug. 19, 1933.

Syllabus by the Court.

1. Transitory actions are such personal actions as seek only the recovery of money or personal chattels, whether they sound in tort or contract. They are universally founded on the supposed violation of rights, which in contemplation of law have no locality.

2. An action for damages, for alleged injuries sustained, against a municipality, is a transitory action.

3. Where the application for a change of venue is from one certain county to another (Essex to Burlington) "or to some other county," and the court upon a consideration of all the facts and special circumstances, in the exercise of its sound discretion, concludes that a change should be made "to some other county," in this instance, Mercer county, such shall be the order of the court.

Suit by Katherine Lee Hesselbrock against the County of Burlington. On the return of the defendant's rule to show cause for a change of venue.

Decision in accordance with opinion.

Argued May term, 1933, before PARKER, LLOYD, and PERSKIE, JJ.

John A. Bernhard and Fred. W. Mitchell, both of Newark, for plaintiff.

Harold B. Wells, of Bordentown, for defendant.

PERSKIE, Justice.

This case comes up on the return of a rule to show cause, on the part of the defendant, county of Burlington, for a change of venue from Essex county, where the suit is laid, to Burlington county, where the accident occurred, "or to some' other county."

The action is based upon the alleged liability of the county of Burlington for injuries sustained by the plaintiff on August 20, 1927, when it is claimed the automobile in which she was riding, as an invitee, overturned when the driver thereof, in attempting to avoid hitting a tree (which plaintiff claims was standing in a county highway), turned the car, causing it to glance off the said tree and strike a stone curbing on the edge of the highway. The plaintiff was 17 years of age at the time of the accident. This suit was instituted 5 years after the accident, and about one month before the expiration of the two years after she became of age.

It is asserted for the defendant that the defense to be interposed by the county will require proof of location, history, construction and maintenance of the county and township road, and the history and maintenance of the said tree. The defense will require about 15 witnesses, members and officers of the county and township body. Three large, heavy deed books must be used whose leaves are not detachable. Three very old, large maps, 3x6 feet, made of cardboard, which cannot be folded. These records are used by the public at large and form a part of the valuable records of Burlington, county. That transportation facilities are poor and the cost will be rather heavy to transport and care for the necessary witnesses.

It is also urged that this is a type of case where the jury should have the opportunity to inspect the premises (3 Comp. St. 1910, p. 2976, §§ 31-35), and therefore the change should be made.

It is contended for the plaintiff that she is willing to consent to the admission of the necessary maps and to have the necessary deeds admitted upon certification; that she likewise has several witnesses and experts necessary for her case; that she is seriously injured, one leg being 3/4 inches shorter than the other; that she is practically impecunious, and it would likewise cast an undue, burden on her to be obliged to come to* Burlington county to try this case.

It is not easy to conclude which side has the greater equity on the score of inconvenience for, as held in Demarest v. Hurd, 46 N. J. Law, 471, the court will never change the venue for this cause upon any nice balancing of circumstances of mere accommodation of the parties...