Leopold v. Livermore

• Citation: 197 P. 778,115 Wash. 481
• Decision Date: 20 April 1921
• Docket Number: 16155.
• Court: United States State Supreme Court of Washington
• Parties: LEOPOLD v. LIVERMORE et ux.

197 P. 778

115 Wash. 481

LEOPOLD v. LIVERMORE et ux.

No. 16155.

Supreme Court of Washington

April 20, 1921

Department 1.

Appeal from Superior Court, Skagit County; Augustus Brawley, Judge.

Action by Walter M. Leopold against L. H. Livermore and wife. Judgment for defendants, and plaintiff appeals. Affirmed.

Samuel R. Stern, of Spokane, and A. R. Hilen, of Seattle, for appellant.

Thos Smith and Coleman & Gable, all of Mt. Vernon, for respondents.

FULLERTON J.

The appellant, Leopold, instituted this action against the respondents Livermore, in the superior court of Spokane county, to recover in damages for injuries received in an automobile accident occurring in that county. The respondents are, and were at the time of the commencement of the action residents of Skagit county, and were served with summons while in the county of their residence. At the time they appeared in the action the respondents filed an affidavit of merits, and moved the court to transfer the cause to Skagit county, the place of their residence. This motion the trial court granted. After the cause had been docketed in Skagit county the appellant moved, under section 209 of the Code (Rem.), to change the place of trial to Spokane county basing the motion on the third subdivision of that section, which authorizes a court to change the place of trial when 'the convenience of witnesses or the ends of justice would be forwarded by the change.' This motion the trial court denied. The cause was then tried on its merits to a jury, and resulted in a verdict and judgment in favor of the respondents.

In this court the appellant, as grounds for reversing the judgment, contends that the court erred: First, in refusing to change the place of trial to Spokane county; second, in permitting counsel for the respondents at the trial of the cause to refer to the verdict of the coroner's jury, returned at an inquest held in Spokane county over the body of Dr. Schlosberg, who was killed in the accident; and, third, in refusing to grant a new trial because of improper conduct on the part of the respondent L. H. Livermore, at the time of the trial.

It is to the first of these assignments that the argument of counsel in this court is mainly directed. Preliminarily, it may be noted that when the respondents applied to the court of Spokane county for a change of venue to the county of their residence, the appellant resisted the motion on the ground that the convenience of witnesses and the ends of justice required that the cause be tried in Spokane county. The court ruled, however, that the respondents could, under the statutes, insist as a matter of right that the venue of the action be changed to the county of their residence, and that it was a primary question for the court of that county to determine where the trial should be had, and declined to consider the question, entering an order changing the venue to Skagit county. In so ruling the court followed a practice subsequently held by this court in State ex rel. Owen v. Superior Court, 110 Wash. 49, 187 P. 708, to be the correct practice. The question, therefore, whether the convenience of witnesses or the ends of justice required the cause to be tried in Spokane county was a primary question for the court of Skagit county, in determining which it was privileged to apply to its consideration the rules and principles of law applicable to actions originally instituted before it.

The statute relating to the venue of civil actions is found at sections 204 to 219 of the Code (Rem). These need not be set forth at length. After providing for the place of commencement and the place of trial of certain local actions, it is provided (section 207):

'In all other cases the action must be tried in the county in which the defendants, or some of them, reside at the time of the commencement of the action, or may be served with process, subject, however, to the power of the court to change the place of trial, as provided in the next two succeeding sections.'

The first of the sections referred to provides that if the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant at the time he appears demands that the trial be had in the proper county. The second (section 209) provides:

'The court may, on motion, in the following cases, change the place of trial, when it appears by affidavit or other satisfactory proof--* * *

'3. That the convenience of witnesses or the ends of justice will be forwarded by the change. * * *'

Construing these sections of the statute, we have heretofore uniformly held that an application based on the ground of convenience of witnesses appealed to the discretion of the court, and would be reviewed by us only for manifest abuse. State ex rel. Mill Co. v. Superior Court, 9 Wash. 673, 38 P. 155; Culbertson v. Gilbert Hunt Co., 79 Wash. 446, 140 P. 548; State ex rel. Conley v. Superior Court, 106 Wash. 569, 181 P. 50. So we have held with reference to the somewhat similar statutes relating to a change of venue in criminal causes. McAllister v. Washington Territory, 1 Wash. T. 360; Edwards v. State, 2 Wash. 291, 26 P. 258; State v. Straub, 16 Wash. 111, 47 P. 227; State v. Champoux, 33 Wash. 339, 74 P. 557; State v. Welty, 65 Wash. 244, 118 P. 9; State v. Smith, 197 P. 770.

In State v. Welty, this language was used:

'It is apparent, from a reading of these sections, that a granting or denying of the change of venue is a matter resting entirely in the sound judicial discretion of the trial judge. Such being the statute, the ruling of the trial court cannot be reversed upon appeal, unless the record contains some evidence of its gross abuse, or it is shown that the court's ruling was arbitrary. * * * Such also is the general rule in construing statutes of like import. 12 Cyc. 243.'

Turning to the showing made, it is not to be doubted that the moving party showed with sufficient definiteness that the convenience of his own witnesses would be forwarded by a change fo the place of trial to Spokane county. It not only appears that the accident giving rise to the action occurred in that county, but that all of the witnesses he desired to call, with...