State Ex Rel. Nielsen v. Superior Court

Beals, J, Marie Nielsen, her husband, August Nielsen, and Alfred H. Nitsche brought suit before the superior court for King county, against Robert Kagy, demanding judgment against defendant for damages on account of physical injuries which plaintiffs alleged Marie Nielsen suffered as the result of a collision between an automobile driven by defendant and one owned by plaintiff Nitsche, in which plaintiff Marie Nielsen was riding as a passenger. The accident occurred in the city of Seattle. Robert Kagy, the defendant, moved for a change of venue to Thurston county, that being his place of residence. An order was entered removing the cause to Thurston county, and thereafter the plaintiffs moved that the action be sent back to Kang county for trial, basing the motion upon two grounds: First, the convenience of witnesses; and second, that the ends of justice would be served by the change of venue which they asked. Affidavits were filed by the respective parties, and the motion was heard upon these affidavits. In due time an order was entered denying plaintiffs’ motion for a change of venue, whereupon the plaintiffs in the action (relators here) applied to this court for an alternative writ of mandate, directed to *565 the judge of the superior court for Thurston county who had denied the change of venue, requiring him to grant relators’ motion, or show cause why he should not do so. Return to the writ having been filed, the matter was argued and submitted to this court upon the record presented by the respective parties. Prom the record, it appears that Mr. Kagy was alone in his car at the time of the collision, and that, so far as his knowledge and information extend, there were no eyewitnesses of the accident save himself and the persons who were riding in Mr. Nitsche’s automobile. On the other hand, relators filed before the superior court the affidavits of Alfred E. Eder and Ruth E. Eder, who deposed that they saw the accident, and stated what they observed. These witnesses reside in the city of Seattle, and state in their affidavits that they “feel that, they would not willingly go to Olympia to” testify at the trial of the case. The relators also showed that Donald E. Nitsche was driving Alfred H. Nitsche’s car at the time of the collision, and that he also resides in the city of Seattle. Alfred H. Nitsche also sued for damages to his automobile. So far as the record shows, Mr. Kagy’s only witnesses are his doctor, who treated him for the injuries which he received in the collision, and a mechanic who repaired Mr. Kagy’s automobile, both of these witnesses residing in Olympia. Mr. Kagy also stated in his affidavit that he desired to employ a draftsman to make a plat of the scene of the collision, and a physician residing in Olympia to make a physical examination of Marie Nielsen. It also appears that Mr. Kagy intends to cross-complain for damages suffered by him. Rem. Rev. Stat., § 205-1 [P. C. § 8542-1], provides that an action may be brought in any county in which the defendant resides, while § 209 [P. C. § 8545] pro *566 vides that the court may, on motion, change the place of trial, when satisfied “that the convenience of witnesses or the ends of justice would be forwarded by the change.” The section provides for a change of venue upon other grounds, which are not pertinent to this inquiry. As Thurston county is more than twenty miles from the city of Seattle, it is manifest that witnesses residing in Seattle cannot be required by subpoena to attend before the superior court for Thurston county. Relators concede that, in passing upon such a motion as that made for a change of venue, the superior court has a measure of discretion in determining where the action shall be tried, contending, however, that • in this instance the respondent judge failed to exercise sound judicial discretion in“ passing upon their motion, and in denying the same acted so arbitrarily that this court in this proceeding should reverse the ruling of the trial court and direct that the change of venue be granted. In the case of People v. Pfanschmidt, 262 Ill. 411, 104 N. E. 804, Ann. Cas. 1915A, 1171, the supreme court of Illinois, in discussing the exercise of judicial discretion, said: “A judicial discretion, in practice, is ‘the equitable decision of what is just and proper under the circumstances.’ [Citing authorities.] Abuse of discretion does not mean only the decision of a case by whim or caprice, arbitrarily or from a bad motive [citing authorities], but it also means that the discretion has not been justly and properly exercised under the circumstances of the case.” In the case of State ex rel. Ross v. Superior Court, 132 Wash. 102, 231 Pac. 453, this court said: “It is, of course, somewhat within the discretion of the court whether it will or will not grant a change of venue on the ground of the convenience of wit *567 nesses. But discretion in this regard is never arbitrary. It must, like discretion in other matters, be based on reason. If it appears from the entire showing that the convenience of witnesses will be promoted by the change, the court cannot deny it on the ground of discretion without an abuse of discretion. To hold otherwise would be to deny to a party the benefit of the statute.” In the case of State ex rel. Merritt v. Superior Court, 147 Wash. 690, 267 Pac. 503, in considering a question similar to that now before us, this court again referred to the rule, as follows: “What may be for the convenience of witnesses or what may promote the ends of justice are usually facts which must be proven by competent evidence, and while there is a certain discretion lodged in the trial court, that discretion must be exercised in the light of the evidence produced.” For many years, this court has, by means of some extraordinary writ, reviewed rulings by superior courts in granting or denying changes of venue, and that practice has become a recognized form of our judicial procedure. In many cases, we have upheld orders denying a change of venue, while in others, such orders have been reversed, with directions to grant the change. Our practice in regard to reviews of such orders as that now before us has not been constant. We have entertained applications for writs of mandate and have reviewed such orders on writs of certiorari. In the cases of State ex rel. Gamble v. Superior Court, 190 Wash. 127, 66 P. (2d) 1135, and State ex rel. Hand v. Superior Court, 191 Wash. 98, 71 P. (2d) 24, by way of a writ of certiorari, we reviewed and reversed orders denying a change of venue; in the case of State ex rel. Schmidt v. Nevins, 180 Wash. 356, 39 P. (2d) 990, we entertained and denied an application for a writ of mandate to review an order denying a change of venue; *568 and in the recent case of State ex rel. Beffa v. Superior Court, 3 Wn. (2d) 184, 100 P. (2d) 6, we denied an application for a writ of mandate to require the superior court to grant a change of venue, holding that this court would not, by an extraordinary writ, interfere with the exercise of the trial court’s discretion prior to the time the superior court had acted upon an application for a change of venue. In the case last cited, the case was considered on the merits, and the application denied. We are convinced that a party feeling himself aggrieved by the granting or denial by the superior court of a motion for a change of venue may bring the order before this court for review by way of a writ of certiorari. It is not the best practice to review by writ of mandate an order which has been entered, and direct the trial court to set aside an order involving the exercise of judicial discretion, when it would not be proper, upon an application for a writ of mandate, to direct the court to take either affirmative or negative action before the entry of any order. This court may, by a writ of mandate, require a superior court to act in a matter which is pending before that court, in which, because of the peculiar facts, there is no place for the trial court to exercise any discretion, but a motion for change of venue does not fall within that category. In the proceeding at bar, the trial court entered a formal order denying the change of venue, whereupon relators have applied to this court for a writ of mandate, directing the trial court to set aside the order which was made, and enter in place thereof an order granting relators’ motion for a change of venue. In the case of State ex rel. Crockett v. Sutton, 159 Wash. 307, 293 Pac. 469, the relator asked for a writ of mandate and prohibition. This court, being of the *569 opinion that the relator was entitled to review here an order of the superior court denying a motion to vacate a judgment, considered the application as one for certiorari, and directed that the record before the court below be certified to this court for review. In the case at bar, the return of the trial court to the application for the writ of mandate discloses that the entire record of the proceedings before the superior court on relators’ motion for change of venue is now before us, and we accordingly consider rela-tors’ application for a writ of mandate as an application for a writ of certiorari, and proceed to an examination of the questions presented. The collision which gave rise to this action occurred in King county. Relators Neilsen and Alfred J. Nitsche are residents of King county, as are Alfred E. Eder and Ruth E. Eder, eyewitnesses to the accident, and Donald A. Nitsche, who was driving the car in which Mrs. Neilsen was a passenger. On the other hand, the defendant in the action, Robert Kagy, is a resident of Thurston county; the doctor who treated him, and the mechanic who repaired his car, being also residents of Thurston county. That Mr. Kagy desires a friend of his who resides in Thurston county to prepare a plat of the scene of the accident, and desires a physician who is a resident of that county to examine Mrs. Neilsen, has little or no bearing upon the matter of the change of venue. This court has been often called upon to review rulings of superior courts upon applications for change of venue. Each case must depend upon its own facts. Relators rely upon certain of our decisions, while respondent cites others. In the case of State ex rel. Ross v. Superior Court, supra, this court held that the superior court had erred in refusing to grant defendant’s motion for a *570 change of venue in a divorce case. It appeared that the acts of cruelty upon which the plaintiff relied took place in King county, where the defendant was residing at the time of the institution of the action. It was held that the matter of the division of the property of the parties, the property being located in Klick-itat county, where the action was brought, was a secondary consideration, and that the superior court erred in denying the defendant’s motion for a change of venue. In the case of State ex rel. Merritt v. Superior Court, supra, it appeared that two actions were instituted before the superior court for King county against one Attwell, for the purpose of recovering damages resulting from an automobile collision, which occurred in King county. The defendants appeared, alleging that they were residents of Kitsap county, and demanding a change of venue, which was granted. The plaintiffs then moved for a change of venue to King county, upon the same statutory ground upon which relators here rely. The trial court stated that the motion would be denied, whereupon application was made to this court for a writ of mandamus directing that the change of venue be granted. This court held that the situation clearly showed that the plaintiffs in the two actions "... would be hampered, put to unreasonable and unnecessary expense, and perhaps their rights would be jeopardized by being forced to try their cases anywhere save in King county where the accident occurred,” and granted the writ prayed for. In the case of State ex rel. Schmidt v. Nevins, supra, this court, while refusing to issue a writ of mandamus to compel the superior court to grant a motion for a change of venue, said: *571 “Where discretion, soundly exercised, leaves off and arbitrary or capricious conduct begins, is difficult to say. Essentially, it must be determined from the record made in each case. To illustrate: A resident of Asotin county, driving alone, might run down a pedestrian on the main corner of Port Angeles at midday. As a matter of right, he could have an action, brought in Clallam county, removed to Asotin county. State ex rel. Owen v. Superior Court, 110 Wash. 49, 187 Pac. 708. Confronted with a motion for change of venue back to Clallam county, supported by affidavits of eyewitnesses to the accident, the superior court of Asotin county could hardly refuse, in the sound exercise of its discretion, to grant the motion. On the other hand, such discretion might be soundly exercised in denying the motion in case the resident of Asotin county should have been accompanied by passengers who also resided in Asotin county. In each instance, whether the trial court has acted arbitrarily or exercised a sound discretion must be determined from the record upon which it acted.” We are of the opinion that the trial court erred in denying relators’ motion for a change of venue to King county. The convenience of witnesses and the ends of justice will certainly be forwarded by the change. The order under review is reversed, with directions to grant the motion for a change of venue. Blake, Millard, and Simpson, JJ., concur.