Figley v. California Arrow Airlines

VAN DYKE, J.

Plaintiffs and respondents, the widow and mother of Vincent T. Figley, deceased, brought action in Solano County to recover damages for his death which they alleged had been negligently caused by defendants and appellants through operation of an airplane on which he was a passenger. It is admitted that he was such passenger and was killed when the plane crashed against a hill in Solano County. After answering, appellants moved for a change of venue from Solano County to Los Angeles County on the ground of convenience of witnesses. (Code Civ. Proc., § 397, subd. 3.) Their motion was denied and they appeal.

-The granting or refusal of such a motion rests in the discretion of the trial court and that court's action will not be disturbed on appeal except for abuse of that discretion.

(Wood

v.

Silvers,

35 Cal.App.2d 604, 607 [96 P.2d 366].) The affidavits presented in support of, and opposed to, the motion are considered with the object of conveniencing the witnesses and serving the ends of justice and mere numerical majority of witnesses on one side or the other does not necessarily determine the merits.

(Id.)

While ordinarily the convenience of a litigant is not considered, yet serious illness or other disability of the party which will prevent travel to attend the trial will justify an order granting or denying a change even as against the interests of a numerical majority.

(Simonian

v.

Simonian,

97 Cal.App.2d 68 [217 P.2d 157].) The code authorizes the court to consider “the ends of justice” as well as “the convenience of witnesses.”

Appellants presented affidavits by two people to the effect that eight others would be material witnesses, all of whom were residents of Los Angeles County. Six were officials of the Civil Aeronautics Administration who, in pursuit of their official duties, went to the scene of the crash to investigate the causes thereof. The two others had also investigated such causes at the scene. As to all eight it is averred that they “have personal knowledge of the propriety of operation of said aircraft” or “personal knowledge of the circumstantial evidence indicating proper operation and control” thereof. Just what these men saw and why it is that what they saw