Opinion
No. 33,016.
October 31, 1941.
Venue — change of venue — time of application and showing of necessity.
Where relator's motion for change of venue from plaintiff's home county to the district where it had its principal place of business was not made until 44 days after service of summons and complaint, and there is showing that, because of plaintiff's age and the effect of the accident upon her, travel to and attendance at trial elsewhere "might result in serious injury to her health," it cannot be said that there was abuse of discretion in denying the motion.
Application to this court by order to show cause upon the relation of Pittsburgh Coal Company for a peremptory writ of mandamus to compel the district court for the fifth judicial district to vacate an order, Fred W. Senn, Judge, denying relator's motion for a change of venue from Waseca to Hennepin county of an action brought by Ann O'Brien against Nellie Brogan. Writ discharged.
Freeman King, for relator.
H.H. Sturner, for respondent Ann O'Brien.
Moonan Moonan, for respondent Nellie Brogan.
This matter is before us on our order to show cause why a writ of mandamus should not issue directing the judge of the fifth judicial district, Waseca county, to vacate an order denying, and to make one granting, relator's motion for change of venue to Hennepin county.
The action arose out of an automobile accident which occurred in Minneapolis. Plaintiff was a passenger in the automobile of defendant Nellie Brogan. The complaint is that through the negligence of both relator and Nellie Brogan, the latter's car was caused to collide with another vehicle, with resulting injury to plaintiff. Relator's defense is, in substance, a denial "that any of its trucks, agents or servants were in any way involved in the accident." The motion for change of venue was made under Mason St. 1927, § 9216(4), for the convenience of witnesses and promotion of the ends of justice.
Relator's showing would be compelling were it not for two obstacles. The major one is that the motion for change of venue was not made until 44 days after service of summons and complaint. True, in the meantime, some question was made as to whether relator was properly named. On this ground there was a motion to quash service, which was later withdrawn when relator got leave to interpose a tardy answer. It is plain that the motion for change of venue could well have been made, at least in the alternative, along with the motion to quash service.
Another factor which may have had substantial weight below is the fact that plaintiff is 71 years of age, and because of that and her injury there is a showing that it would be both difficult and unwise for her to go to Minneapolis for a trial. That exertion, in medical opinion, "might result in serious injury to her health."
It is not for us to disagree with the trial judge in a matter such as this unless we are satisfied that his denial of the change of venue is an abuse of discretion. Because of the two features just suggested, we cannot so hold.
Writ discharged.
MR. CHIEF JUSTICE GALLAGHER took no part in the consideration or decision of this case.