Park v. Gruwell
Before: Hall
Synopsis
Venue—Change to Residence op Dependant—Motion pok Rechange to First Venue—Convenience op Witnesses—Discretion—Review upon Appeal.—Where the original venue of an action brought in Santa Clara county was changed to Lake county, the residence of the defendant, and after the cause was at issue, plaintiffs moved to reehange the place of trial to Santa Clara county, where the cause of action arose, for the convenience of witnesses, and the motion was denied, the determination of such motion rests largely in the discretion of the trial court, and the appellate court can only interfere when there is plainly an abuse of discretion on the part of the trial court disclosed by the record.
Id.—Abuse op Discretion—Action por Death Caused by Dependant in Santa Clara County—Convenience op Witnesses Requiring Change.—It is held that the record shows an abuse of discretion in denying the motion, as the cause of action is by the wife and children of a decedent, who was killed by defendant in Santa Clara county, and the convenience of all the witnesses to the accident for both parties, other than the defendant himself, will be promoted by the change, and none of the witnesses thereto can be compelled to attend in Lake county, the access to which is inconvenient; and it would be unjust to plaintiffs to be compelled to take the depositions of all of their witnesses for trial in Lake county.
HALL, J.
Plaintiffs, as the widow and children of Dean W. Park, brought this action in Santa Clara county to recover damages for the death of said Dean W. Park, alleged to have been caused through the negligence of defendant. Defendant is a minor and appeared by his guardian
ad litem,
Fannie H. Gruwell.
Upon demand of the defendant, before answer filed, the place of trial of said action was changed to Lake county, where defendant resides. After answer had been -filed plaintiffs moved that the place of trial be changed to Santa Clara county, upon the ground that the convenience of witnesses • and the ends of justice would be promoted by the change. This motion was denied, and plaintiffs in due time appealed.
It is alleged in substance in the complaint that while Dean W. Park was riding a bicycle in an easterly direction along a driveway in the grounds of the Leland Stanford Jr. University, defendant at the same time and place was riding a bicycle in a westerly direction at a reckless and dangerous rate of speed, and so carelessly and negligently rode and ran the same that, without fault of said Dean W. Park, defendant ran into and collided with said Park and injured him so that he died from such injuries about four hours later.
Defendant in his answer denied the allegations of the complaint constituting the gravamen of the action, including the allegation as to the death of said Park. Defendant also affirmatively pleaded that the collision and injury to said Park, if any was received, were caused by the negligence of said Park.
The motion was heard upon the complaint; and answer, affidavit of plaintiff Alice L. Park, affidavit of Fannie H. Gruwell, guardian
ad litem
of defendant, and a certified copy of the testimony taken at the coroner’s inquest on the body of Dean W. Park.
Appellants, at the outset, very properly concede that the granting or refusing a change of venue upon the grounds upon
[511]
which the motion was based rests largely in the discretion of the trial court, and that this court can only interfere when there is plainly an abuse of discretion on the part of the trial court disclosed by the record. Appellants, however, contend that the record does show such an abuse of discretion, and, after a careful examination of the record, in the correctness of this position we are constrained to agree.
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