Schultz v. Land O' Lakes Creameries, Inc.

54 N.W.2d 781, 238 Minn. 554, 1952 Minn. LEXIS 773

• Court: Supreme Court of Minnesota
• Decided: September 12, 1952
• Docket: No. 35,894
• Status: Published

Opinions

Per Curiam.

This is a personal injury action in which plaintiff seeks damages in the sum of $125,000 for injuries which plaintiff sustained in a collision with one of defendant Land O’ Lakes Creameries’ trucks on June 23, 1950, two miles south of Pine City. He was so injured that he remained in the hospital at Pine City for approximately a year and a half. The action to recover damages was commenced on August 17, 1951, in Hennepin county, the principal place of business of defendant Land O’ Lakes Creameries. Defendant then impleaded Bernard and Josephine Odegaard as additional parties defendant. Issue was duly joined, but it was not until April 17, 1952, that a motion for change of venue from Hennepin county to Pine county was made by defendant Land O’ Lakes Creameries and supported by the Odegaards. The motion for change of venue was denied on June 13, 1952. On July 16, 1952, on the theory that the trial court abused its discretion in denying their motion, defendant Land O’ Lakes Creameries petitioned this court for a writ of mandamus to require the district court of Hennepin county to change the venue and place of trial of the action to Pine county for the convenience of witnesses and in the interests of justice. M. S. A. 542.11 (4). The judge of the district court who heard the motion for change of venue interposed a return, and the case is here for disposition upon an alternative writ of mandamus directed to the district court of Hennepin county.

The principal question presented for decision is whether the affidavit of the attorney for Land O’ Lakes Creameries presents an adequate foundation to support the motion for change of venue. After stating that he is one of the attorneys for defendant Land O’ Lakes Creameries, he states:

“That he has the benefit of an investigation into the above entitled case and that the following are witnesses whom the defendant, Land O’ Lakes Creameries, proposes to call on its behalf in connection with the trial in the above entitled case:”

This statement is followed by the names of 11 witnesses who reside either in Pine City or in the area immediately adjacent.

While in Miller v. Anchor Cas. Co. 233 Minn. 87, 91, 45 N. W. (2d) 705, 708, we held “that it is not necessary for a party to expose all his evidence in the affidavit supporting his motion to change venue by stating in detail what each witness will testify,” it is necessary that he state of his own knowledge and not upon mere hearsay the general matters to which the witness has stated to him that he will testify. It is quite apparent from the tenor of the attorney’s affidavit upon which the motion was made before the trial court that he speaks not from his own knowledge obtained by personal interviews with the witnesses, but from the hearsay statements which appear in his office files in the case at bar. This affidavit is therefore insufficient to support the motion. Olivier v. Cunningham, 51 Minn. 232, 234, 53 N. W. 462, and see Vornbrock v. Bollig, 219 Minn. 577, 579, 18 N. W. (2d) 441, 442.

Writ discharged.