Kennon v. Gilmer

• Decision Date: 07 January 1885
• Citation: 5 Mont. 257
• Parties: KENNON v. GILMER and others.
• Court: Montana Supreme Court

5 Mont. 257

KENNON

v.GILMER and others.

Supreme Court of the Territory of Montana.

Filed January 7, 1885.

Appeal from Second district, Deer Lodge county.

Thos. L. Napton and J.C. Robinson, for respondent.

Stephen De Wolf and W.W. Dixon, for appellants.

WADE, C.J.

This is an action by a passenger against a common carrier of passengers to recover damages for injuries alleged to have been received in consequence of the negligence and carelessness of the common carrier. The complaint in substance alleges that on the thirtieth day of June, 1879, the defendants were common carriers of passengers for hire, by stage-coaches, between the towns of Deer Lodge and Helena, in this territory; that upon said day the defendants, as such common carriers, and in the usual course of their business, and for the usual fare, prepaid by plaintiff, received the plaintiff as a passenger in one of their coaches for transportation from Deer Lodge to Helena, aforesaid, and undertook to carry him safely on said passage; that in managing and conducting said coach, from its starting point to its place of destination, the defendants were guilty of negligence and carelessness in this: that they failed to provide a suitable, safe, and competent driver, and suitable, safe, gentle, and well-broken horses, for said coach, which was without the fault of plaintiff, who did not contribute in any way to said carelessness and negligence; that on said day, while the plaintiff was a passenger as aforesaid, and being transported as aforesaid, and in consequence of said negligence and carelessness, and by reason of the horses aforesaid being unsafe, unsuitable, and unmanageable, and one of them jumping and throwing itself onto the pole of the coach and thereby breaking the same, and said team of horses taking fright, the coach was, in consequence thereof, thrown and placed in such a condition of peril as to endanger the life of the plaintiff, and to make it apparently unsafe for him longer to remain on the coach; and he, being actuated by great fear of bodily injury by longer remaining on the coach, jumped therefrom to the ground, by reason of the dangerous position in which the coach was placed by the defendants, in consequence of their negligence and carelessness aforesaid; that the plaintiff, in so jumping from the coach, acted as a reasonable and prudent man would have acted under like circumstances, and that he did not contribute to the injury he received, and was without fault on his part; that in so jumping from the coach to the ground one of the plaintiff's legs was broken, and that, in consequence thereof, it became necessary to, and his leg was, amputated, causing a sickness of three months, and an expense of $750. Wherefore, the plaintiff prays judgment for the sum of $25,000, besides the expenses aforesaid, and costs of suit.

The defendants moved for a change of venue, which motion was overruled, and a trial ensued, which resulted in a verdict for plaintiff for the sum of $20,750. Judgment was entered on the verdict, from which, and an order overruling a motion for a new trial, the defendants appeal to this court. The appellants, in their briefs and arguments, rely for a reversal of the judgment upon the following alleged errors:

(1) The refusal of the court to grant their motion for a change of venue. (2) The admission of incompetent and irrelevant testimony. (3) That the instructions to the jury are contrary to law. (4) That the testimony is insufficient to support any verdict for damages against defendants. (5) That the damages are excessive.

1. Our statute provides that the court may, on good cause shown, change the place of trial when there is reason to believe that an impartial trial cannot be had in the county designated in the complaint. Rev. St. p. 50, § 62. The affidavit upon which the motion for a change of venue was based, made by an agent of the defendants, substantially sets forth that affiant is acquainted with and knows the general sentiments and opinions of the public in reference to this action, and the parties thereto, and, from his knowledge of such public opinion, he has reason to believe, and does believe, that the defendants cannot have a fair and impartial trial of this action in the county of Deer Lodge; that the general sentiment of the public in said county is prejudicial to the defendants, so far as this action is concerned; that one trial of the case has already taken place in that county, in which heavy damages were awarded to the plaintiff by the jury that tried the cause; that the verdict and judgment rendered thereon have been generally canvassed in a manner favorable to the plaintiff and unfavorable to defendants, and thereby has produced a general prejudice against defendants.

Venue may be changed only for good cause shown. The matter does not rest in the mere discretion of the court. The court has no authority to exercise any other than a judicial discretion. The affidavit must show the cause by a statement of facts. The court must arrive at a conclusion from the facts stated, and not from the conclusions of the witness. An affidavit against a whole community, that states the mere conclusions of the witness, is of no consequence whatever. It ought to state the facts, so that the court and not the witness may determine whether the community is prejudiced. The court is to make a finding from the facts. It is to determine in a judicial manner whether an impartial trial may be had. An affidavit which states that the affiant “is acquainted with and knows the general sentiments and opinions of the public in reference to said action, and the parties thereto, and from his knowledge of such public opinion affiant has reason to believe, and does believe, that the defendants cannot have a fair and impartial trial of said cause” in the county named, is the mere conclusion of the witness, and does not state any facts upon which the court can ascertain the sentiment of the community.

In the case of People v. Yoakum, 53 Cal. 567, the court says:

“The conclusion reached on the application must be such as finds warrant in the facts disclosed by the affidavits filed, and in the circumstances made to appear in the record.”

In the case of People v. Congleton, 44 Cal. 95, the court says:

“In this case the affidavits upon which the motion was based were exceedingly unsatisfactory; they in the main set forth merely that, in the opinion and belief of the affiants, the prisoner could not have a fair trial, owing to the popular prejudice against him.”

People v. Shuler, 28 Cal. 495, is to the same effect, and the court says:

“The defendant's affidavit does not establish the fact that the people of the county of Butte were so prejudiced against him as to become disqualified to act as jurors in this case. The statement in this respect was upon information and belief, which, standing alone, no court in the exercise of a proper discretion could regard as of sufficient probative force to authorize a change of the place of trial.”

In People v. Mahoney, 18 Cal. 186, the court says:

“The mere affidavit of the defendant does not render it obligatory on the court to change the venue. *** A reasonable discretion is to be given to the court on the subject; and, while we should not be disposed to hold an arbitrary refusal to change the venue as warranted, yet we think the mere unsupported assertion of the defendant that he was the victim of a general prejudice in the county is not a conclusive reason for changing the venue, when it is so easy to obtain corroboration of the statement if it were really true.”

The correct rule of practice, in an application of this character, is well stated in People v. McCauley, 1 Cal. 383, as follows:

“Affidavits for such a motion must state the facts and circumstances from which the conclusion is deduced that a fair and impartial trial cannot be had. The conclusion is to be drawn by the court, and not by the defendant and his witnesses; and the court must be satisfied from the facts and circumstances positively sworn to in the affidavits, and not from the general conclusions to which the defendant may swear, or which his witnesses may depose they verily believe to be true.”

The fact that one trial had already taken place in the county, and that the verdict had been generally canvassed by the public in a manner favorable to the plaintiff and unfavorable to the defendant, whereby, as the witness says, there is a general prejudice against the defendants, is a conclusion by the witness that is not warranted by the facts. In Sloan v. Smith, 3 Cal. 413, Mr. Chief Justice MURRAY says:

“The affidavit states that, owing to certain litigations in which the defendant had been engaged, a prejudice existed against him in the city of San Francisco, which would prevent him having a fair and impartial trial. *** The affidavit on its face was insufficient to warrant the court in changing the venue.”

The fact that a jury might be found in a county that answers all the statutory requirements is not at all conclusive upon the question of the existence of such prejudice in the community as to render a fair and impartial trial impossible. This is not the test to be applied to the question, for such a jury might be found when the public sentiment was in a blaze of excitement and passion against one of the parties to the action; and the pressure of this public sentiment might make itself felt during the trial in very many ways, upon the jury, upon the witnesses, and officers of court, and upon the court itself. Jurors, witnesses, and officers cannot be insensible to a strong and excited public feeling and sentiment concerning the trial that is going on, and are liable to be influenced by it unconsciously, and with an honest intention of doing their whole duty. The court-room is a public place, and a trial in which a community is deeply interested brings the people there, and the pressure of their presence and...