This proceeding is here on application for an alternative writ of mandate to require respondent, Honorable John M. Wilson, judge of the superior court for Thurston county, to grant relators' motion for change of venue, and transfer the cause of Nielsen etal. v. Kagy to the superior court for King county, for trial.
This action was originally heard before Department Two of this court, and, on February 25, 1941, the department reversed the lower court and granted relators' motion for change of venue. A petition for rehearing before the entire court was filed and granted, and the case was reargued before the court sitting EnBanc.
Marie Nielsen and husband and Alfred H. Nitsche instituted in the superior court for King county an action against Robert Kagy, to recover damages claimed to have been suffered by Mrs. Nielsen as the result of a collision between an automobile owned by Alfred H. Nitsche, in which Mrs. Nielsen was riding, and an automobile owned and operated by Mr. Kagy. The accident occurred in Seattle. Defendant Robert Kagy moved for a change of venue to Thurston county, that *Page 575 being the place of his residence. This motion was granted. Upon the filing of the cause in Thurston county, plaintiffs moved for a change of venue back to King county, on the grounds that the convenience of witnesses and the ends of justice would be best served by such change.
Affidavits were submitted by the respective parties for and against the motion, and thereafter an order denying the motion was made and entered by the superior court for Thurston county. Relators then applied to this court for an alternative writ. The writ having issued, and a return thereto having been filed, the matter was argued and submitted to the court upon the record as made.
While Judge Wilson is the nominal respondent in this action, for convenience defendant Kagy will be hereinafter referred to as respondent.
From the affidavits filed, it appears that Mr. Kagy was alone in his car at the time of the accident. Relators have filed the affidavits of Alfred E. Eder and Ruth E. Eder, who stated therein that they saw the accident. Each of these affidavits concludes as follows:
"That it would be seriously inconvenient for affiant to go to Olympia to give his testimony and would cause affiant substantial loss in time and earnings if he should be compelled to do so and affiant now feels that he would not willingly go to Olympia to so testify."
These witnesses reside in Seattle, as also does Alfred H. Nitsche, who sued for damages to his automobile.
On the other hand, the record shows that respondent will call as witnesses the following persons, all of whom reside in Olympia: The doctor who treated respondent for injuries claimed to have been received by him as a result of the collision; the mechanic who *Page 576 repaired his car; and an employee in the office of the city engineer of Olympia, who will prepare a plat of the scene of the accident. It further appears that respondent will ask for an order compelling Marie Nielsen to submit to a physical examination by a doctor of his choosing, that respondent expects to select an Olympia physician for that purpose, and that it will be necessary for such doctor to attend the trial.
Rem. Rev. Stat., § 205-1 [P.C. § 8542-1], provides that an action may be brought in any county in which the defendant resides.
Rem. Rev. Stat., § 209 [P.C. § 8545], provides:
"The court may, on motion, in the following cases, change the place of trial, when it appears by affidavit or other satisfactory proof, — . . .
"3. That the convenience of witnesses or the ends of justice would be forwarded by the change."
As Thurston county is more than twenty miles from Seattle, it is of course apparent that witnesses living in Seattle cannot be compelled to personally go to Thurston county to testify. Their depositions could, of course, be taken.
Relators contend that the trial court acted arbitrarily in denying their motion, and that the court failed to exercise sound discretion in the premises.
[4] Under our venue statutes at the time this application was made, we are of the opinion that, in a proceeding of this character, the defendant is the favored party, with the right to have the action brought in the county of his residence. State exrel. Hand v. Superior Court, 191 Wn. 98, 71 P.2d 24. In the cited case, we quoted from the case of State ex rel. De Lape v.Superior Court, 156 Wn. 302, 286 P. 851, as follows:
"`In State ex rel. Martin v. Superior Court, 97 Wn. 358,166 P. 630, L.R.A. 1917F 905, Judge Chadwick, speaking for the court and citing our prior decisions *Page 577 touching the right of a defendant to have the venue of an action of this nature in the superior court of the county of his residence, said:
"`"Under Rem. Code, §§ 207, 208 and 209, one who is sued in a county other than that of his residence is entitled to a change of venue, if the action be a transitory one.
"`"While it may in general terms be referred to as a privilege, the claim for a change of venue, when once asserted, no question of fact being involved and no discretion of the court invoked, is more than a privilege; it is a right. It has been so held whenever and wherever this court has been called upon to pass upon the question."'"
The disputed question of fact above referred to was as to the residence of the defendant. In the instant case, it is not contended that the residence of respondent is not in Thurston county.
[5] In the instant case, relators moved for a change of venue from the county of respondent's residence to the county of their residence, upon the grounds that the ends of justice and the convenience of witnesses would be best served by such change. This surely presented a question which called for an exercise of judicial discretion by the trial judge. His order denying this motion should stand, unless there has been a manifest abuse of that discretion.
In State ex rel. Beffa v. Superior Court, 3 Wn.2d 184,100 P.2d 6, we stated:
"However, it can safely be said that abuse of judicial discretion is not shown unless the discretion has been exercised upon grounds, or to an extent, clearly untenable or manifestly unreasonable."
[6] Governed by the rule above mentioned, we are clearly of the opinion that this record does not show an abuse of discretion.
Relators have shown by affidavits that it would be *Page 578 inconvenient for three of their witnesses to go to Olympia to testify, and two of their witnesses state in their affidavits that they now feel that they would not willingly go to Olympia to testify in the cause. Relators' attorney, in his affidavit, also states that there are two other important witnesses for relators who live in Seattle, and for whom it would be a serious inconvenience to go to Olympia to testify.
On the other hand, respondent, by an affidavit made by his counsel, shows that all his material witnesses, five in number, including respondent, live in Olympia, and that it would be just as inconvenient for these witnesses to attend court in Seattle as it would for relators' witnesses to attend court in Olympia.
[7] There is no doubt but that a change of place of trial to King county would be convenient for relators' witnesses, but this alone is not a sufficient reason for granting such a change. The entire situation must be looked at, and due consideration given to the convenience of the witnesses for each party, rather than to the convenience of relators' witnesses alone. Leopold v.Livermore, 115 Wn. 481, 197 P. 778.
We are of the opinion that the two cases principally relied upon by relators, namely, State ex rel. Ross v. Superior Court,132 Wn. 102, 231 P. 453, and State ex rel. Merritt v.Superior Court, 147 Wn. 690, 267 P. 503, are not controlling herein. In the former, in so far as witnesses were concerned, it was shown that all known witnesses for both parties resided in King county, to which county relator was asking that the case be transferred for trial. King county was also the place of residence of the relator (defendant). In the latter case, a change of venue to the plaintiff's county was granted, upon a showing that the accident occurred in that county and that all known material witnesses resided there. *Page 579
The two cases above cited present, on the facts, different situations than that presented in the instant case. We have often said that, in applications for change of venue, each case must depend upon its own facts.
In the case of State ex rel. Shook v. Superior Court,141 Wn. 651, 252 P. 103, wherein practically the same contentions were made by relator as are made by relators in the instant case, we stated:
"We have uniformly held in cases of this kind, that is, applications for a change of venue on the grounds that the convenience of witnesses and forwarding of justice required it, that the matter of such change is addressed to the discretion of the trial judge to whom the application is presented, and that we will not review, prior to an appeal in regular course, the judgment and discretion exercised by him, by a writ of mandate, where the hearing before him was had upon conflicting affidavits, as was the fact in this case. The theory of that ruling, as it is expressed in our cases, is to the effect that if, in passing upon such an application, the court err in the exercise of its discretion, it does no more than commit error in judgment denying no inherent right or justice to any of the parties in the case, and that we will not control or review that discretion by peremptory writs in advance of appeals where the question may be finally litigated. [Citing cases.]"
We are of the opinion it cannot be said the discretion of the trial court was exercised on untenable or unreasonable grounds. We are clearly of the opinion that this record does not show the trial court was arbitrary or capricious in refusing to transfer the case to King county for trial. We think, on the contrary, the court's discretion was exercised upon reasonable grounds.
The writ is denied.
ROBINSON, C.J., MAIN, STEINERT, and SIMPSON, JJ., concur. *Page 580