Keith v. Liberty County Hospital & Nursing Home

No. 14309
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
MARILYN A. KEITH, Administratrix
of the Estate of Lloyd D. Keith,
deceased,
Plaintiff and Appellant,
LIBERTY COUNTY HOSPITAL and
NURSING HOME, and LIBERTY COUNTY,
a body politic and corporate, d/b/a
LIBERTY COUNTY HOSPITAL AND NURSING
HOME,
Defendants and Respondents.
Appeal from: District Court of the Twelfth Judicial District,
Honorable B. W. Thomas, Judge presiding.
Counsel of Record:
For Appellant:
Dzivi, Conklin, Johnson & Nybo, Great Falls, Montana
William P. Conklin argued, Great Falls, Montana
For Respondents:
Smith, Emrnons, Baillie and Walsh, Great Falls, Montana
James Walsh argued, Great Falls, Montana
Submitted: June 14, 1979
Decided AU ji 13
9
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the
Court.
The District Court of Liberty County denied plaintiff's
motion for change of venue. Following a trial resulting in a
jury verdict for defendant, plaintiff appeals from the order
denying a change of venue.
In June, 1975, plaintiff filed an action for damages
arising out of the death of her husband. Defendants in the action
were the Liberty County Hospital and Nursing Home and Liberty
County. Plaintiff alleged that negligence on the part of the
hospital caused her husband's death and sought to hold Liberty
County, who operates the hospital, liable.
More than two years later as the trial date approached,
plaintiff filed her first motion for a change of place of trial.
The grounds alleged were that 42 of the 48 members of the jury
panel were county taxpayers who had a direct pecuniary interest
in the outcome of the trial. As taxpayers, they would have to
pay higher property taxes to cover any uninsured judgment in
favor of plaintiff. Plaintiff claimed this pecuniary interest
precluded an impartial trial within the meaning of what is now
section 25-2-201(2) MCA. This motion was never ruled upon.
A new jury panel was drawn on January 12, 1978 and on
February 6, 25 days later, plaintiff filed a renewed motion for
a venue change. This motion was substantially the same as the
first one except it recited that 49 members of the new 51 person
panel were Liberty County taxpayers. On March 9, the District
Court denied the motion. Trial began on March 13, 1978 and re-
sulted in a jury verdict for the Hospital. At no time during
empanelment of the jury or during the courseof the trial did
plaintiff challenge the panel or seek to have any juror disqual-
ified because of county taxpayer status.
In appealing, plaintiff contends that because of their
pecuniary interest, county taxpayers are not qualified to be
jurors in cases where the county is a party. By analogy, she
asserts that the presence of a large number of county taxpayers
on the jury panel is a ground for changing the place of trial.
This Court has previously held that taxpayer status is
not a ground for juror disqualification. School Dist. No. 1. v.
Globe & Republic Ins. Co. (1963), 142 Mont. 220, 383 P.2d 482.
Here, it is not necessary for us to reach this argument for in
failing to challenge the panel or any juror for cause on the basis
of taxpayer status, plaintiff waived any objections she might have
had. Ledger v. McKenzie (1938), 107 Mont. 335, 340, 85 P.2d 352,
353.
Plaintiff has referred the Court to cases from other
states which hold that where jurors are not disqualified because
of their status as taxpayers, a motion for change of venue may
nevertheless be granted. Olson v. City of Sioux Falls (1935),
63 S.D. 563, 262 N.W. 85; Sheridan County v. Davis (1932), 61 N.D.
744, 240 N.W. 867. Montana case law is contrary, Carter City v.
Cambrian Corp. (1963), 143 Mont. 193, 387 P.2d 904; Good Roads
Machinery Co. v. Broadwater Co. (1933), 94 Mont. 68, 20 P.2d 834.
We hold that plaintiff waived her right to a change of
place of trial in any event for failure to timely move therefor.
"Any request for change in place of trial for grounds
2 and 3 of section 25-2-201, Montana Code Annotated,
must be presented by motion within 20 days after the
answer to the complaint, or to the cross-claim where
a cross-claim is filed, or the reply to any answer,
in those cases in which a reply is authorized, has
been filed; except that whenever at some time more
than 20 days after the last pleading has been filed
an event occurs which thereafter affords good cause
to believe that an impartial trial cannot be had under
ground 2 of said section 25-2-201, and competent proof
is submitted to the court that such cause of impar-
tiality did not exist within the 20-day period after
the last pleading was filed, the court may entertain
a motion to change the place of trial under ground 2
of section 25-2-201 within 20 days after that later
event occurs. " Rule 12 (b)(iii), M. R.Civ.P.
Neither the first motion nor the renewed motion for change of venue
was made w i t h i n 20 d a y s a f t e r t h e answer o r w i t h i n 20 d a y s
a f t e r an e v e n t a f f o r d i n g good c a u s e t o b e l i e v e an i m p a r t i a l
t r i a l c o u l d n o t be had. P l a i n t i f f argues t h a t t h e event caus-
i n g i m p a r t i a l i t y was t h e J a n u a r y 1 2 j u r y p a n e l s e l e c t i o n .
I n t h i s case n e i t h e r t h e f i r s t motion n o r t h e r e n e w a l
motion f o r change o f venue was t i m e l y . P l a i n t i f f h a s acknowledged
i n h e r b r i e f t h a t t h e f i r s t motion f o r change of venue was n o t
made w i t h i n 20 d a y s a f t e r t h e t h e n e x i s t i n g j u r y p a n e l was drawn.
,
Thus t h e f i r s t motion was u n t i m e l y under Rule 12 ( b ) (iii) M.R.
Civ.P. The second j u r y p a n e l was drawn on J a n u a r y 1 2 , 1978. The
second o r renewed motion f o r change of venue was n o t made u n t i l
February 6 , 1978. T h i s motion was l i k e w i s e u n t i m e l y b e c a u s e it
was n o t made w i t h i n t h e 20-day t i m e l i m i t s p e c i f i e d i n Rule 1 2 ( b )
(iii) .
W e h o l d t h a t s i n c e b o t h motions f o r change o f venue were
u n t i m e l y ; t h e D i s t r i c t C o u r t ' s d e n i a l of a change of p l a c e o f
t r i a l was c o r r e c t .
Affirmed.
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Chief J u s t i c e