Jones v. The Williamsburg City Fire Insurance Company

• Decision Date: 07 January 1911
• Docket Number: 16,763
• Citation: 83 Kan. 682,112 P. 826
• Parties: W. H. JONES, Appellee, v. THE WILLIAMSBURG CITY FIRE INSURANCE COMPANY, Appellant
• Court: Kansas Supreme Court

112 P. 826

83 Kan. 682

W. H. JONES, Appellee, v. THE WILLIAMSBURG CITY FIRE INSURANCE COMPANY, Appellant

No. 16,763

Supreme Court of Kansas

January 7, 1911

Decided January, 1911.

Appeal from Franklin district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CHANGE OF VENUE--Disqualification of Judge--Waiver of Erroneous Denial of Application. When an application for a change of venue on the ground of the disqualification of the district judge has been formally presented and fully considered, and has been erroneously denied, the applicant does not waive the error by neglecting to interpose an objection to going to trial when the case is reached at the next succeeding term of court.

2. CHANGE OF VENUE--Same. A stipulation that a cause shall be submitted to the court and the same jury that tried a companion case, upon the same evidence and instructions verdict to be returned and judgment rendered the same as if all the steps of a trial had been taken, does not waive the error of the court previously committed in denying an application to change the venue because of the disqualification of the district judge.

3. PRACTICE, SUPREME COURT -- Immaterial Error -- Denial of Change of Venue by Disqualified Judge. If upon appeal to this court the record of the proceedings shows with reasonable clearness that the judgment rendered expresses the only result which could be rightfully reached, the defeated party has not been prejudiced in his substantial rights because his motion to change the venue was denied and he was obliged to go to trial before a disqualified judge.

4. PRACTICE, SUPREME COURT--Presumed Prejudice--Denial of Change of Venue by Disqualified Judge. Generally, prejudice will be presumed from the erroneous denial of an application to change the venue because of the disqualification of the district judge; but the presumption is subject to the limitation that it must appear from the record that there is a substantial controversy to be determined, the result of which may be detrimentally affected by the officiating of the objectionable judge.

5. PRACTICE, SUPREME COURT--Immaterial Error -- Denial of Change of Venue. Under the facts stated in the opinion it is held that the error of the trial court in refusing to change the venue of this case is not sufficient to warrant a judgment of reversal.

Eugene S. Quinton, M. A. Fyke, E. L. Snider, and W. R. Pleasant, for the appellant.

F. M. Harris, Hale H. Cook, and Wilbur S. Jenks, for the appellee.

BURCH J. SMITH, J., PORTER, J., dissenting. BENSON, J., not sitting.

OPINION

BURCH, J.:

In November, 1908, a stock of merchandise at Ottawa, Franklin county, Kansas, belonging to the appellee, W. H. Jones, was destroyed by fire. The appellee was insured against loss by a number of insurance companies, and in due time he brought suits to recover upon the policies. The case of Jones v. The American Central Insurance Company was tried in April, 1909, with the result that a judgment was rendered in favor of the plaintiff. On appeal to this court the judgment was reversed because an application for a change of venue, based upon the disqualification of the judge of the district court of Franklin county, was denied. (Jones v. Insurance Co., ante, p. 44.) On September 22 and 23, 1909, the cases of Jones v. The Westchester Fire Insurance Company and Jones v. The Prussian National Insurance Company were tried and verdicts were returned in favor of the plaintiff. The cases of the same plaintiff against the Williamsburg City Fire Insurance Company, The Concordia Fire Insurance Company, The Firemen's Fund Insurance Company and The Mercantile Fire & Marine Insurance Company were then submitted to the jury which heard the Westchester company's case, under stipulations which read in part as follow:

"It is hereby stipulated and agreed that the above-entitled cause shall be submitted to the court and the same jury that tried the case of W. H. Jones v. The Westchester Fire Insurance Company on September 22, 1909, upon the same evidence offered in that case, and that the court shall instruct the jury upon the same evidence submitted in that cause except as hereinafter provided, as though it had actually been verbally given in this cause, and that the same jury before which the said cause of W. H. Jones v. The Westchester Fire Insurance Company was tried shall consider the evidence and instructions of the court as though such evidence and instructions were actually given verbally and read in this cause, and shall deliberate upon the same and render a verdict upon such evidence and instructions as though actually given verbally and read in this cause to said jury, and if the finding be in favor of the plaintiff, the jury shall determine from the policy sued on in this case and the evidence given in said cause above referred to, and the instructions of the court, the amount due to the plaintiff under the policy sued on in this case, and that judgment shall be rendered accordingly."

In these cases verdicts were returned in favor of Jones. Judgments were rendered in his favor in all the cases, and the various insurance companies appeal. In this court the four cases which went to the jury under the stipulation referred to have been consolidated. The six cases may be disposed of, however, by one opinion.

On July 27, preceding the trials, applications to change the venue were denied. The grounds stated were those which were considered in the case of Jones v. Insurance Co., ante, p. 44. In several of the cases Jones filed an affidavit stating that he was able to pay his indebtedness to the First National Bank of Ottawa, amounting to $ 6000, independently of the result of the litigation with the insurance companies, and consequently that the bank would not be affected should he lose. The affidavit did not remove the disqualification of the district judge. Optimistic general statements of this kind, relating to one's resources, do not go very far in the business world. The adage is that "the eye of the master fatteneth the ox." Its truth is illustrated by the fact that Jones was adjudged to be a bankrupt within a few months after his affidavit was filed. It does not appear from the affidavit, or otherwise, that the bank had been relieved of anxiety concerning the means and ability of Jones to discharge his indebtedness, and the proof was that this very matter had been the subject of discussion between the officers of the bank and its legal adviser, the trial judge, who was also a stockholder and officer of the institution, drawing an annual salary from it. It is not necessary to add anything to what was said in the opinion in Jones v. Insurance Co., ante, p. 44. A change of venue ought to have been granted in each of the cases.

The insurance companies rely for reversal upon the refusal of the court to change the venue, and upon nothing else. The appellee argues that the error was impliedly waived because no objection to proceeding further was interposed when the cases were reached for trial. Some authorities are cited to support the claim. Those from this state are easily distinguishable. For various reasons those from other states are not controlling. The subject of a change of venue had been formally presented and fully considered. The district judge, acting conscientiously upon his best judgment, believed it to be his duty to preside at these trials. He so decided, exceptions were duly noted, and the proceeding was spread upon the record. No new fact or circumstance intervened to change the situation, and there was no occasion to reopen the subject and require the court to rule upon it again. An objection of the kind suggested had no function whatever to perform, consequently was not essential to preserve the rights of the parties, and if made would have had something of the appearance of nagging the court.

The appellee further insists that the stipulations referred to constituted express waivers of the disqualification of the judge in the cases in which they were filed. These stipulations related solely to the manner in which the cases should be submitted, and it would be a gross misinterpretation of them to impress them now with a different purpose.

Finally, the appellee asserts that the error committed in refusing to change the venue was harmless. The defense of the insurance companies was that the appellee had not complied with the conditions of his policies, that he was not the owner of the property burned, that he had not sustained loss to the amount claimed, that he had procured the policies through gross misrepresentation of the amount and value of the property insured, and that he had concealed and falsely misrepresented other material facts. At the trials the appellee produced evidence amply warranting recovery. The record is remarkably free from objections relating to evidence. The few which were made were inconsequential. The appellee was the chief witness in his own behalf and was cross-examined at length. No evidence was offered by the appellants, and the cases went to the jury upon simple and clear instructions, against which nothing can be urged. The verdict in each case was the necessary result of the trial, and would not have been allowed to stand had it been otherwise. No trial errors of any kind are assigned or could be sustained in this court.

In the case of Robinson v. Melvin, 14 Kan. 484, the court was called upon to review an order discharging an attachment. A portion of the opinion reads as follows:

"One other question is raised by counsel. After the dissolution of the attachment plaintiff moved to have the order dissolving the attachment set aside and the matter referred to a judge pro tem. on the ground of the interest of the judge,...