Opinion
No. 7,139.
Submitted November 9, 1933.
Decided November 17, 1933.
Personal Injuries — Automobile Accidents on Highway Under Construction — Venue in County Where Accident Occurred — Change of Venue Improperly Denied. 1. Under the general rule that an action for tort is triable in the county in which committed, the district court erred in denying a change of venue in an action for personal injuries sustained in an automobile accident, alleged to have been due to the negligence of a highway contractor in failing to apprise the traveling public of the defective condition of the road where the accident occurred, to the county of its occurrence.
Appeal from District Court, Silver Bow County; Wm. E. Carroll, Judge.
Mr. W.S. Rynerson and Messrs. Clift Glover, for Appellant, submitted a brief; Mr. R.H. Glover argued the cause orally.
No appearance in behalf of Respondent.
The plaintiff brought this action in Silver Bow county against the defendants to recover damages alleged to have been sustained by him in an automobile accident resulting from a defect in a public highway which was being constructed by the defendants at a point about four miles west of Whitehall, in Jefferson county; it being alleged that the defendants negligently failed to post warning signs or otherwise to apprise the traveling public of the defective condition of the road where the accident occurred.
Enough has been said to show that the action sounds in tort. After the service of summons, the defendant Trippet appeared by general and special demurrer, filing therewith a demand, notice of motion, and motion, for change of venue from Silver Bow county to Jefferson county, with an affidavit of merits in support of the demand and motion. In the affidavit it is set forth, among other allegations, that the alleged accident occurred in Jefferson county, but that is clear from the complaint. After hearing, the court entered an order denying the motion for a change of place of trial, from which the defendant Trippet has appealed.
The motion should have been granted. It has long been settled [1] that the proper county for the trial of an action for tort is that in which the tort was committed. ( State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 P. 1030; Dryer v. Director-General of Railroads, 66 Mont. 298, 213 P. 210; O'Hanion v. Great Northern Ry. Co., 76 Mont. 128, 245 P. 518; Stewart v. First National Bank Trust Co., 93 Mont. 390, 18 P.2d 801.)
The order is reversed and the cause remanded to the district court of Silver Bow county, with directions to set aside the order denying defendant's motion for change of venue and to enter an order granting the same. Remittitur forthwith.
ASSOCIATE JUSTICES ANGSTMAN, MATTHEWS, STEWART and ANDERSON concur.