86 Vt. 67 | Vt. | 1912
We have here an action on the case, which is pending in the county court of Windham County, wherein the defendant seasonably preferred its petition to the presiding judge of that court, asking for a change of venue, because of a
So far as need be stated, the allegations of the petition for a change of venue are to this effect:
The pending suit is an action for the recovery of damages on account of personal injuries alleged to have been suffered by the plaintiff, while in the defendant’s employ, through the latter’s negligence. The defendant operates a railroad from New London, Conn, to Brattleboro, Vt. In September, 1910, the Public Service Commission ordered the defendant to abolish the grade crossing at Brattleboro- — to which undertaking the town of Brattleboro had voted to appropriate a large sum of money. This order, the defendant promptly proceeded to carry into effect. At the last session of the legislature, the Vermont Valley Railroad, which is operated by the Boston & Maine Railroad, sought the right to construct a line paralleling the tracks of the defendant from South Vernon to Brattleboro, and a bill was introduced providing for this. This project brought on an acute controversy between the two railroads, which came to involve the citizens of Brattleboro and the whole county, who, on account of expected increased railroad facilities, benefits and advantages, earnestly espoused the cause of'the Vermont Valley road. The two newspapers published in Brattleboro took an active part in the controversy, advocating the cause of the Vermont Valley, and made it a leading feature of their successive issues. These papers are said to circulate in every town in the county and to reach practically every person therein qualified to serve as jurors in county court, and have been a factor in creating a general prejudice against the defendant throughout the county. Certain issues of these papers are made a part of the petition by reference. While the railroad bill was pending before the legislature, public meetings were held at Brattleboro, at which marked hostility toward the defendant was shown. A special town meeting was held in Brattleboro, at which the appropriation in aid of the abolition of the grade crossing was rescinded, and the town authorities began proceedings to have the order aforesaid revoked, which proceedings-the defendant is contesting.
Brattleboro is the natural business center of the county; from it emanate lines of public communication reaching praeti'c
The allegations close with the assertion that “throughout the county there exists a prejudice against your petitioner, well defined, general, and openly expressed. ’ ’
The petition is signed and sworn to by G. C. Jones, General Manager. No formal answer was’ filed. Numerous exhibits and copies of records and proceedings were filed in support of the petition, and the plaintiff filed numerous newspaper exhibits. No testimony was filed or offered by either party.
In disposing of the matter, the presiding judge said:
‘ ‘ I am unable to find that there is reason to believe that said Action cannot be impartially tried in the county of Windham, and the petition is dismissed. I do not consider the evidence sufficient to show such a feeling among the people of this county as to prevent a fair trial of the case by jury.”
The defendant insists that, inasmuch as no answer was filed and no counter affidavits submitted, the allegations of the petition; being verified by the oath of the defendant’s general manager, should have been treated as conclusive of the facts thereby •covered; and, since they cover all essential facts, there was no room for the exercise of any discretion, and the petition should have been granted. In support of this proposition, the defendant cites Mix v. Kepner, 81 Mo. 93. There, the plaintiff filed a written application, verified by his oath, alleging that he believed that “the said defendant has an undue influence over the minds •of the inhabitants of Henry County, and that the inhabitants of said Henry County are so prejudiced against plaintiff that he cannot have a fair trial in said Henry County.” This motion was filed-under a statute which provides that the court shall be “satisfied”-that the party could not have a fair trial in the county where the action is pending and it was held that the application and verification, being in full compliance with the statute, made a prima facie case, and that the statute did not require that the court should be “satisfied” in any other manner.
We cannot adopt this view. It makes it too easy to secure •a change of the place of trial. Whether, in the circumstances here presented, the petition stood as anything more than a plead
Without further proof, the presiding judge was not obliged to treat these newspaper utterances of so much importance as is claimed for them.
The further allegation that there exists throughout the county a general and well defined prejudice against the defendant is but an expression of the petitioner’s conclusion; it is an in
The law of this whole subject is so fully covered in the recent case of Willard v. Norcross, 83 Vt. 268, 75 Atl. 269, that further comment is unnecessary.
Upon a consideration of the whole case, we cannot say that the presiding judge failed to exercise according to law the discretion which the law vested in him.
Writ denied with costs.