Berry v. North Pine Electric Cooperative, Inc.

50 N.W.2d 117, 235 Minn. 562, 1951 Minn. LEXIS 785
CourtSupreme Court of Minnesota
DecidedNovember 16, 1951
DocketNo. 35,686
StatusPublished
Cited by7 cases

This text of 50 N.W.2d 117 (Berry v. North Pine Electric Cooperative, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berry v. North Pine Electric Cooperative, Inc., 50 N.W.2d 117, 235 Minn. 562, 1951 Minn. LEXIS 785 (Mich. 1951).

Opinion

Per Curiam.

On September 14, 1951, an alternative writ of mandamus was issued by this court directing the district court for Pine county and the Honorable Carl W. Gustafson, one of the judges thereof, to remand this action to Hennepin county for trial or to show cause before this court.

The action was commenced in the district court for Hennepin county October 18, 1950. It is for the recovery of damages sustained by Phyllis Berry, a minor, hereinafter referred to as plaintiff, for injuries suffered when she was burned 'by defendant’s power line, which had broken, separated, and fallen to the ground on the farm of plaintiff’s grandparents near Hinckley in Pine county. The accident occurred September 17, 1950, about 10:30 a. m. Phyllis was six years old at the time.

October 30, 1950, on affidavit and motion of defendant, pursuant to M. S. A. 542.09, the venue of the action was changed to Pine county, where defendant was domiciled. Immediately thereafter, pursuant to § 542.11, plaintiff moved to remand the action to Hennepin county (1) for the convenience of witnesses, and (2) upon the ground that a fair and impartial trial could not be had in Pine county. On August 20, 1951, the court made its order denying plaintiff’s motion. These proceedings followed.

[563]*563At the hearing in support of the first contention, plaintiff submitted evidence that all medical experts involved in the case except one, Dr. H. W. Henry, were residents of Hennepin county and would suffer great inconvenience if required to travel to Pine county for the trial; that all hospitalization for plaintiff was at the University Hospitals in Minneapolis, which retained all charts and records therein; that the only actual eyewitnesses to the accident were residents of Minneapolis; that a number of additional witnesses were resident there; and that the remaining witnesses who might be called by defendant could readily make the trip from Pine county to Minneapolis.

On the second ground, plaintiff submitted evidence indicating that she might not obtain a fair trial in Pine county, first, because many of the jurors to be called, as shown by the records of the Pine county district court for the past five years, would be members and shareholders of defendant, a cooperative, whose rates for electric power might increase if a substantial judgment were obtained by plaintiff; and, second, because of prejudice or ill feeling against the parents of plaintiff by reason of their past conduct there in matters not connected with the litigation.

In a memorandum attached to its order denying plaintiff’s motion, the trial court set forth its reasons as follows:

“The evidence before us as to the number of witnesses to be called by the respective parties is in conflict. It would appear that the only witnesses who would benefit by a change of venue are the plaintiff’s medical experts. In this aspect the situation is not different from that in all other cases where Twin City doctors are called to testify in any other place outside those jurisdictions.
“A change of venue should not be made simply to accommodate the witnesses of one party if thereby the witness for the other party will be equally discommoded.”
“* * * It [defendant] has some 1300 members or patrons residing in Pine County, nearly all of whom are stockholders. * * * over a period of the last five years, approximately 28% of the persons drawn for jury service in said County were members and stockholders of the defendant company. From these facts standing alone, coupled with the claim that ‘rumors’ are circulated in the area that a large verdict in this case would result in increased rates for electric power (a fact denied by defendant), it would appear plaintiff’s claim has merit. * * *
“* * * stock ownership in the defendant corporation is a ground for challenge for implied bias, and it is the common practice * * * for the Court to ascertain the existence of the ground for such bias and on its own motion excuse the prospective juror if it appears the ground exists. * * *”
[564]*564“* * * any prejudice or ill feeling' which may have existed or may now be existing against the parents of the little girl involved is localized to a very limited area and * * * has no relation or connection with the present cause of action.”

Primarily through affidavits for the most part undisputed, the record indicates the following with reference to the medical testimony which may be submitted:

Dr. Owen H. Wangensteen, chief of the department of surgery, University Hospitals, Minneapolis, who performed two amputations on the left arm of the child and various other operations upon her over a period of several months for which extensive treatment was required. His affidavit sets forth that he and other doctors in his department would find it difficult, if not impossible, to testify in the case in Pine county; and that it would be more convenient, less expensive, and would interfere less with the care and treatment of other patients at University Hospitals if the trial were held in Minneapolis.

Dr. Irvine McQuarrie, chief of the department of pediatrics of the University Hospitals, under whose direction and supervision the plaintiff was also a patient. His affidavit sets forth that neither he nor the other doctors on his staff familiar with plaintiff’s condition would be required to be away from their duties in Minneapolis for more than an hour or two at a time if the case were tried in Minneapolis, but that a trial in Pine county would require them to remain away from their work for approximately one day, to the detriment of their work in Minneapolis.

Dr. Samuel G. Balkin states that he is a specialist in plastic surgery, and that he examined plaintiff at the request of her counsel. He describes in detail plaintiff’s condition, and sets forth that his operating schedule at various Minneapolis hospitals, as well as his duties at the Veterans Hospital and the University Hospitals, would make for a prohibitive expense if he were required to testify in Pine county rather than in Hennepin county.

Dr. Davitt Felder, chief resident surgeon in the division of surgery at the University Hospitals, sets forth that it would be more convenient and less expensive for him and other doctors working under him to testify in Minneapolis rather than in Pine county with reference to plaintiff’s injuries and treatment at the University Hospitals.

Dr. Conrad I. Karleen examined plaintiff at defendant’s request. His office is in Minneapolis, and he makes no claim that it would be inconvenient for him to testify in Pine county.

Dr. H. W. Henry, whose name as a prospective witness was submitted by defendant, sets forth in an affidavit and in a statement made by him that [565]*565he is a resident of Hinckley, Pine county; that he was called at the time of the accident and “got out about six miles and * * * met them”; that he took the child’s pulse but did not examine her further at that time; that upon arrival in town he examined her, made a diagnosis, gave her a hypodermic, directed that she be taken to University Hospitals, and made arrangements for her to be taken to Minneapolis.

It is undisputed that the child’s only hospitalization was at the University Hospitals in Minneapolis, where, in addition, she received out-patient treatment at various times.

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Bluebook (online)
50 N.W.2d 117, 235 Minn. 562, 1951 Minn. LEXIS 785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-north-pine-electric-cooperative-inc-minn-1951.