Raming v. Metropolitan St. Ry. Co.

• Decision Date: 07 March 1899
• Citation: 50 S.W. 791
• Parties: RAMING v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

50 S.W. 791

RAMING v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 7, 1899.

CHANGE OF VENUE — APPLICATION — REQUIREMENTS — PROCHEIN AMI — SUBSTITUTION.

1. Under Rev. St. 1889, § 2261, providing that a party may present a petition for a change of venue setting forth the cause of his application and when he obtained information thereof, the application should not be allowed, unless the time is stated.

2. The requirement of Rev. St. 1889, § 2261, that a party applying for a change of venue should state when he obtained information of the cause therefor, is not met merely by a statement that it was obtained since the petition was filed and since the adjournment of the last regular term of court.

3. A prochein ami is not a party, within Rev. St. 1889, § 2261, providing that any party may present application for a change of venue, and he cannot make the application therefor.

4. A next friend of an infant plaintiff may be substituted by the court pending the action.

Appeal from circuit court, Johnson county; W. W. Wood, Judge.

Action by Martin Herman Raming, by Anna Raming, next friend, against the Metropolitan Street-Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Pratt, Dana & Black and Frank Hagerman, for appellant. Botsford, Deatherage & Young, Hollis & Lithgow, and O. L. Houts, for respondent.

SHERWOOD, J.

Action brought 10th day of March, 1894, for $25,000 damages, for injury done to a boy nine years of age, on May 18, 1891, by one of defendant company's cable cars. Two counts were in the petition: The first — that upon which recovery was had — charged that defendant operated a cable street railway upon Twelfth street, in Kansas City; that Martin Raming was a newsboy, who had in the past been permitted, by defendant's servants, to board cars, and sell newspapers to passengers thereon; and further averred: "That when said car reached a point near what is known as Twelfth and Locust streets, a short distance from where plaintiff boarded said car, and while he was still on the running board of same, selling his papers, and before he had taken a seat, one of the servants of the defendant, operating the car, rushed at plaintiff with a broom in hand, and, while said car was going at its usual rate of speed, from eight to twelve miles on hour, said servant did carelessly and negligently, without any regard for the safety of plaintiff, push him off said car, violently throwing him on the hard pavement in the street, and carelessly and wantonly ran said car on and over plaintiff, cutting his left leg off, and bruising his limbs and body, making him sick and sore and a cripple for life, and causing plaintiff physical pain and mental anguish, which must continue while he lives." The second count of the petition was for the same injury, being based upon an alleged failure to comply with section 869 of the Revised Ordinances of the city, requiring a fender to be placed upon each car within two inches of the ground. The answer consisted of a general denial, a plea of contributory negligence, and a plea that the fender ordinance was unreasonable, impracticable, oppressive, and void. Recovery was had on the first count for $12,500. The second count was eliminated from further consideration, owing to the fact that defendant's assertion that it was invalid, for the reasons stated in the answer, was supported by the evidence, and sustained by the trial court in an instruction, and no motion made to set aside the verdict, which went in favor of defendant on that count.

Matters which necessarily precede any others will now be discussed. These matters consist of an application for a change of venue, made in Jackson county, and various matters connected therewith and incident thereto, and resulting in a change being effected, and the cause being sent to Johnson county. The application and affidavit for the change were as follows:

"Your petitioner, H. H. Raming, plaintiff, respectfully represents that he has been duly appointed the next friend of Martin H. Raming, a minor; that the above suit is now pending in this court, the general object and nature of which suit is to recover damages against the defendant; that your petitioner has good reason to believe, and does believe, that he cannot have a fair and impartial trial of said cause in Jackson county, Mo., against the defendant, for the reason that the defendant has undue influence over the inhabitants of said Jackson county, and prays the court for a change of venue to some other county, where such cause does not exist; that he has given notice of the making of this application to Pratt, Ferry & Hagerman, attorneys for defendant, the same having been served on them on the 12th day of May, 1894. Plaintiff further states that he became possessed of this information and knowledge of existence of the cause herein alleged as a ground for a change of venue since the filing of the petition in cause No. 12,121 in this court, which was the same cause of action sued on herein, and which cause was dismissed, and since the adjournment of the last regular term of this court. H. H. Raming. Deatherage & Young, Attorneys for Plaintiff.

"State of Missouri, County of Jackson — ss.: H. H. Raming, being duly sworn, on his oath says that he has been appointed next friend of Martin H. Raming, a minor, and is now acting as such in said cause, and that the facts stated in the above petition are true, and that he has just cause to believe that he cannot have a fair trial in said Jackson county on account of the cause therein alleged. H. H. Raming.

"Subscribed and sworn to before me, H. H. Noland, clerk of circuit court in and for said county, this 12th day of May, 1894. H. H. Noland, Clerk, by S. W. Strode, D. C. [Seal.]"

This application for a change of venue was resisted by defendant on various grounds, based on the insufficiency of the application and its verification. These objections being overruled, defendant excepted, and its exception was preserved.

1. It will be noted that, in the application already quoted, reference is made to a former suit, No. 12,121, for the same cause of action. At what time this former suit was instituted, no information is given, but, at any rate, it was pending on the 11th day of October, 1893; and on that day H. M. Raming, prochein ami, then prepared an application for a change of venue, based on the very same cause that the application in this cause is based on, to wit, that "defendant has an undue influence over the inhabitants of said Jackson county," and that first application concludes with these words: "Plaintiff further states that he became possessed of his information and knowledge of the existence of the cause herein alleged as a ground for a change of venue since the filing of the petition in said cause and since the adjournment of the last regular term of this court. Deatherage & Young, Hollis & Lithgow, Attorneys." Indorsed on that application is service of notice of same on defendant's counsel on the same day, and a statement that the application would be presented on October 14, 1893. Thus, it will be seen that knowledge of the same facts and cause of change of venue as are specified in the second application were possessed by the applicant at least as early as on the 11th day of October, 1893, and how much earlier is not disclosed. Upon the hearing of the second application for a change of venue, the first application, affidavit, etc., were read in evidence, but without avail, as the Jackson circuit court granted the change, and ordered the cause sent to the Johnson circuit court, and defendant saved its exceptions. When the transcript in the cause reached the Johnson circuit court, defendant filed objections to that court entertaining jurisdiction of the cause on the grounds that the affidavit for the change was made by H. M. Raming, and not by the minor, and that the application was otherwise insufficient for the change, and that the change was erroneously allowed. The testimony offered in support of said objections is that heretofore mentioned, but the Johnson circuit court overruled said objections, and defendant excepted. The application was bad for several reasons. In the first place, section 2261, Rev. St. 1889, contains these provisions: "Any party may present to the court, or judge thereof in vacation, a petition setting forth the cause of his application for a change of venue, [and when he obtained his information and knowledge of the existence thereof,] and he shall annex thereto an affidavit to the truth of the petition, and that he has just cause to believe that he cannot have a fair trial on account of the cause alleged." This section has been materially changed from what it was in Gen. St. 1865, p. 634, § 3, by the addition of the words I have placed in brackets, "and when he obtained his information and knowledge of the existence thereof." See 1 Rev. St. 1879, § 3732. It will not escape observation that the application under discussion does not state "when" the applicant "obtained his information and knowledge of the existence of the cause whereon" he bases his application. Phillips, P. J., in adverting to the change wrought by the interpolation of the words bracketed, said: "It will be observed that neither the petition nor the affidavit in question contain the words last quoted. It is not necessary to inquire into the policy or motive of the legislature in interpolating these words into the statute. It is sufficient for the courts to know that the statute is so written, and it presents a case where the statute must stand for a reason. Young v. Glascock, 79 Mo. 578. * * * The right to a change of venue is purely statutory, and, to entitle a party to such change, he must comply with all the substantial requirements of the enabling act. Huthsing v. Maus, 36 Mo. 107, 108. This radical defect in the petition was sufficient to justify the action of the court in...