In the development of pre-trial procedure some jurisdictions have embraced the plan with such enthusiasm as to make it compulsory in all cases. See Michigan Law Review (1937), Vol. 36, page 215, on "The theory and practice of Pre-trial procedure" by Edson R. Sunderland. But in Montana it is not compulsory but rests in the discretion of the trial court. I *Page 330 think it was the legislative intent that such discretion should be exercised in each case separately.
I reach this conclusion because of Chapter 61, Laws of 1939, which in part provides: "In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider: (1) The Simplification of the issues * * *." I think in view of the statute each case must be judged on its own peculiar facts as disclosed by the pleadings as to whether a pre-trial conference should be had.
In some cases the court can determine from a reading of the pleadings that a conference would be of no avail; that it would be a waste of time of the court and counsel for the parties.
The Wayne County Court, Detroit, Michigan, was a pioneer in this country in providing for pre-trial procedure. It adopted the plan in 1929 when its docket was 45 months in arrears in order to speed up the work of the court.
The Judicial Council of Michigan in its Sixth Annual Report (1936) explains the general nature of the pre-trial hearing by saying:
"The pre-trial hearing is an informal conference between the judge and counsel. In many cases, the opposing attorneys have not met each other until the moment when the case is called and they step up before the court. The judge asks them what the case is about, whether they are satisfied with the pleadings, how many of the material facts of the case can be agreed on, and whether either of them thinks there may be an opportunity to settle the case.
"No stenographic record is taken. The attorneys and court soon learn just how the case stands, and the pre-trial hearing usually lasts less than ten minutes. At the end of that time, the court has usually succeeded in determining exactly what matters are really in dispute."
As to personal injury cases the report continues: "In personal injury cases involving automobile accidents, such factors as ownership of the automobile, identity of the driver, width *Page 331 of street, and distances between certain points, are frequently agreed on by counsel, obviating the need of proof when the case comes on for trial. In all personal injury cases, it is decided at the pre-trial stage whether a physical examination of plaintiff is to be made by doctors representing the defendant and who the doctors shall be."
Here the pleadings already admit that defendant is the owner and operator of the bus involved in the collision; that it was driven by C.R. Burns, an employee of defendant acting within the scope of his employment. Both of the occupants of the other car in which Chester A. Kennedy was riding were killed. Plaintiff does not know and has no means of knowing whether Kennedy or the other occupant was the driver of the car. Plaintiff alleges that the width of the highway at the point of the collision was 17 feet. This was denied by defendant. But that question is not of vital importance. Plaintiff alleges that defendant through its driver was negligent in several alleged particulars. This was denied by defendant and it alleged that the driver of the car in which plaintiff was riding was negligent in several particulars. This was denied in the reply. It does not seem likely that either party will recede from its position on a pre-trial conference. Neither it is likely that defendant will admit the amount of damages which plaintiff seeks and alleges to be the sum of $65,689.00.
At any rate, the matter of ordering a pre-trial conference rests in the discretion of the court and that discretion in my opinion cannot be exercised in a case by a judge who has been disqualified. It must be exercised in each case by the judge who has jurisdiction of the particular case. Nor do I find anything in the rule-making power of the court that militates against this view. The statute says: "The court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to non-jury actions or extend it to all actions." That simply means that the court may adopt a rule providing for a pre-trial calendar *Page 332 of cases which it, in its discretion, has determined shall run the gauntlet of a preliminary conference. As used in that statute the word "calendar" means a "list or enumeration of causes" arranged for conference. Titley v. Kaehler, 9 Ill. App. 537.
The rule may embrace only jury cases or non-jury cases or may embrace all actions. But that means only all those of either type which the court in its discretion has determined should have a pre-trial conference. That determination, I think, must be made by the judge who has assumed jurisdiction of the case, and that determination must be made before the case can be placed on the pre-trial calendar. The rule in question here does not establish a pre-trial calendar of cases but merely arranges for the setting of each case separately upon request of counsel for either side who indicates a desire for disposition of the action. The main purpose of the rule is to make pre-trial conference compulsory in each case by denying trial by jury until such conference is had. I do not agree that the court may make a rule making the pre-trial conference a compulsory proposition and applicable to all cases automatically, in the face of the statute which says that in any action the court may in its discretion order a pre-trial conference.
In this case if a pre-trial conference is desired it must be upon order of the Hon. Jeremiah J. Lynch before whom the case is pending. I am not to be understood as taking issue with the gospel according to Matthew but the verse quoted in the majority opinion by its own terms has to do with a controversy before it gets into court. Here the parties have already been delivered "to the judge," and the question before us is, to which judge was the delivery made.
I think the writ applied for should issue but that it should be so framed in its terms that the jury may be called at such reasonable time in the future as to allow other cases to be tried with the same jury panel, if there are any other cases that may be ready for trial in the reasonably near future. *Page 333