Frank v. Avery

Dixon, C. J. Upon a motion to change the yenue on the ground that an impartial trial cannot be had in the county where the action is pending, the inability to obtain a fair and unprejudiced jury must be clearly established. The opinions and belief of witnesses will not be taken. The facts and circumstances showing that a fair trial cannot be had, must be set forth, so as to enable the court to judge for itself whether or not the application is well founded; and some of the cases go so far as to require an actual experiment whether a fair and unprejudiced jury can be impanneled, as the only evidence upon which the court can safely act in granting the motion. In this case the defendant moved upon his own affidavit and that of one other person. The matters relied upon in support of the motion were chiefly contained in the affidavit of the defendant. Some of them were stated upon his information and belief, and others were not. They came far short of the requirements of the rule as above stated. The conduct of the plaintiff may have been very reprehensible, and many persons prejudiced thereby; still it seems to us that no one can read the affidavits and say that the inability to obtain an impartial jury in Jefferson county was clearly established, or that there was good reason to believe that such a jury could not be had. As was observed by Judge Nelson, in the People v. Bodine, 7 Hill, 149, the readiness with which an unexceptionable jury was impanneled on the trial is also entitled to considerable weight. We think there was no error in denying the motion. There is nothing in the other exceptions for which the de [173] fendant is entitled to a new trial. Those principally urged arise from the refusal of the court to give several instructions asked by the defendant. Those instructions were drawn upon the theory that the complaint was for a willful injury only, and that there could be no recovery for injuries carelessly or negligently inflicted. In this we think the defendant’s counsel mistaken. The words of the complaint are, “wrongfully, wilfully and maliciously.” A rash or negligent aet by which damage is caused to another is also a “ wrongful ” act, and may be properly so charged in pleading. The complaint is sufficient to sustain the verdict, even though the jury had found that the injuries were inflicted unintentionally, but through the careless or negligent conduct of the defendant. The damages given by the jury seem large, it is true; but if the jury believed the testimony offered for the plaintiff, it cannot be said that they are excessive. On the whole, we are of the opinion that the judgment of the circuit court must be affirmed. By the Court — Ordered accordingly.