#### Pennsylvania Railroad Company, Appellant, *v.*City of Reading.

*Practice, C. P.*— Change *of venue*— Public *prejudice*— Cause— *Act of March 18,1909, P. L. 87, Section 1.*

1. Before a change of venue will he allowed under the Act of March 18, 1909, B. L. 37, Section 1, relating to cases to which the county or a municipality therein is a party and where local prejudice is shown to exist, or where a large number of the inhabitants of the county have an interest adverse to the applicant, it must appear to the court that a fair and impartial trial cannot otherwise be had. A change of venue will not be granted unless real necessity is shown.

2. An application for change of venue of a condemnation proceeding in which a city had taken certain property of plaintiff railroad company, was properly refused where the lower court found that an impression had been gained by the public as a result of certain statements-issued by representatives of the plaintiff, due to a misunderstanding of fact, that the land in question was to have been unconditionally given to the city by the plaintiff, that thereafter it appeared that there was a condition to the gift and the gift was not ultimately made; that the newspapers of the city took active sides in the controversy which resulted, and in number they were equally divided in their attitude toward the action of the plaintiff; that none of the hostile publications complained of were made shortly before the trial; and it did not appear that there was any deliberate cooperation between the city or its officials and the newspapers to work up a sentiment in the community antagonistic to the rights of the plaintiff for compensation for the taking of its property, and it further appeared that the opinions of most of the witnesses who testified in support of the application for the change of venue Were based largely on the verdicts in' the first two of the six condemnation proceedings in which plaintiff made claim for damages.

*111Argued May 2, 1916.

Appeal, No. 452, Jan. T., 1915, by plaintiff, from judgment of C. P. Berks Co., March T., 1913, No. 60, dismissing plaintiff’s application for change of venue in case of The Pennsylvania Railroad Company v. The City of Reading.

Before Mestbezat, Potteb, Moschziskeb, Fbazeb and Walling, JJ.

Affirmed.

Petition for change of venue.

Endlich, P. J., filed the following opinion:

Some years ago the County of Berks was entering upon the construction of a new bridge over the Schuylkill river at Penn street, according to plans involving the cooperation of the City of Reading. The convenience of the public, as well as other considerations, required the widening of Penn street on each side of the approach to the bridge from Second street westwardly, which could only be ordained by the city. The improvement being for the manifest benefit of both, the city and county arranged between them jointly to pay the damages accruing to property holders by reason of the appropriation of their real estate, the city one-fourth and the county three-fourth. Among the properties affected were several belonging to the plaintiff railroad company, whose passenger station is at the foot of Penn street. There were negotiations between the county and the railroad company, conferences between the county and city authorities, and correspondence between the latter and representatives of the company, touching the terms upon which the latter would consent to the surrender of the portions of its properties needed for the public use. A waiver of damages was contemplated on all hands. Unfortunately a condition imposed by the plaintiff company’s superintendent of the Schuylkill Valley division at one of the very early interviews with the county commissioners that the local street railway company be given a franchise to construct a loop around the *112approach of the bridge, bringing the track and cars close to the passenger station seems not to have been brought to the notice of the plaintiff company’s legal department into whose hands the matter passed, nor to the attention of the city. Out of this circumstance arose an all-around misunderstanding, accentuated when, in answer to an inquiry by the city solicitor as to whether the company desired security for its damages, the plaintiff’s counsel addressed to him a communication on Nov. 17, 1911, declaring the receipt by him from his company of an expression of its intent to dedicate, without looking for compensation, so mnch of its Penn street property as ■was needed for the widening of that thoroughfare; thus creating the impression on the public mind that there was to be a free and unconditional gift to the city of the company’s land for that purpose'. By and by it was ascertained by the railroad authorities in charge of the matter that the condition above mentioned had been made and overlooked, and the same being regarded as vital to the company’s interests, it was deemed necessary to reassert and insist upon it. The city was accordingly advised of this qualification of the previous offer. There followed considerable public discussion on the subject in the newspapers and at public and partly public meetings, at which representatives of the railroad appeared explaining the attitude of the company. The sentiment of the meetings was mainly favorable to the latter. An ordinance was passed by the city councils accepting its condition, but was vetoed by the mayor. Thereupon ensued more discussion, principally in the newspapers. In all there appeared in various of these upwards of 60 publications on the subject, including articles, communications, and mere reports of meetings, etc. Some dealt unfavorably, some few acrimoniously with the railroad company, some apologetically or favorably, and others earnestly and sharply criticised the stand taken by the city officials. In siding with the one view or the other, *113indeed, they were pretty evenly divided. Further legislation in the direction of the vetoed ordinance succeeded in select, but failed in common council. Proceedings were then instituted in behalf of the company to assess damages to it in respect to six properties affected, and viewers appointed by the court in each of the six proceedings made awards to plaintiff on April 24, 1913, aggregating |31,000.00. On April 26,1913, the Herald, a newspaper of the City of Reading having a circulation of about 6,000, published an article, headed “When is a gift not a gift? When there’s a string tied to it, is the answer.” The substance of the article, which refers to the mayor’s veto message and the awards of the viewers, is that the plaintiff company had offered the property unconditionally as a gift to the city and that the condition annexed to it was a repudiation of its original offer. As supporting that assertion it reproduces in fac simile the letter of Nov. 17, 1911, which at its request had been furnished to it by the city solicitor. The city appealed from the awards of the viewers. Something over a year ago, two of the six cases (Nos. 59 and 62, March T., 1913) were tried together in this court. The damages allowed by the jury were not satisfactory to the plaintiff, but the court did not see its way clear, for that or other reasons assigned, to setting the verdicts aside and ordering new trials, and the judgments entered were, on appeal, affirmed by the Supreme Court: Penna. R. R. Co. v. Reading, 249 Pa. 19. Now the plaintiff asks that for the trial of the remaining cases the venue be changed. To the rule entered upon its petition in each of these cases an answer had been filed, and depositions have been taken on both sides. Those submitted by defendant (together with the denials of the answer) effectually dispose of any suggestion of deliberate cooperation between the city or its officials and the newspapers to work up a sentiment in the community antagonistic to the demand of the railroad company for compensation in these cases. On the part of the *114plaintiff there are the depositions of several -witnesses relied upon to show that such a sentiment was created and still subsists. These witnesses give it as their opinion that because of the facts above narrated and the impressions and feeling resulting from them, the plaintiff railroad company was involved in the then unpopularity of the street railway company for which it Avas suspected of endeavoring to secure indirectly an advantage that could not have been obtained directly; that a prejudice thus engendered against the plaintiff company’s demand, or against the company with respect to its demand, survives at this time; and that by reason of it, the plaintiff company cannot have a fair and impartial trial of these cases in this county. All but one of the witnesses base this opinion largely upon the verdicts in the two- cases already tried and above referred to. All of them refer to the unfavorable neAVspaper comments as at the time and presumably still operating to plaintiff’s prejudice. None of them avers, much less instances, any recent expression or manifestation (aside from the verdicts mentioned) of hostility or disfavor towards the plaintiff company or its right to recover adequate compensation.

The applications for change of venue are made under Act of March 18, 1909, P. L. 37, Sec. 1, Par. 4 (relating to cases to which the county or a municipality therein is a party and where local prejudice is shown to exist) and par. 5 (relating to cases in the question involved in which a large number of the inhabitants of the county has an interest adverse to the applicant); the requirement under both of these clauses, in order to sustain the application, being that it “appear to the court” that a fair and impartial trial cannot be had. Neither the fact of the county or one of its municipalities being a party, nor the circumstance that a large number of the inhabitants is interested in the question involved, is decisive. In connection with either there must “appear to the court” the impossibility of a fair and impartial trial. *115Doubtless the opinions of witnesses in a position to form such are evidence upon that question demanding respectful consideration; but their force and effect are to be judged of by the court in the light of its own knowledge and experience, and of the reasons upon which the witnesses base their views. The court must be satisfied that they are well grounded and borne out by what is alleged as supporting them. No authority need be cited to fortify this proposition.

In so far as the opinions here urged in support of plaintiff’s applications are based upon the result of the two cases already tried, they do not seem entitled to persuasive effect. Those cases were subjected by plaintiff’s counsel to a searching criticism, with a view to establishing bias on the part of the jury owing to the city solicitor’s mention of the letter of Nov. 17, 1911 — the likelihood of such bias thereby being sought to be predicated upon substantially the same facts and arguments that are adduced to support these applications. The outcome was the approval of the cases by the Supreme Court. It would be strange if they could, now be made to serve as proof of the existence of an unrighteous influence dictating their decision by the jury and liable to control that of the suits pending.

Beyond this matter we have nothing but the supposition that an unfavorable impression created several years ago has been kept alive in the community and continued or become sufficiently general and intense to amount to an obstacle to plaintiff’s obtaining justice at the hands of a jury in this county, however carefully - selected, guarded and instructed. None of the witnesses professes to have in mind any recent utterances of citizens adverse to the plaintiff or its demand. Two of them recall comments made upon the verdicts already referred to, but, it seems, by way of criticism of them because below the awards of the viewers — i. e., expressions favorable, not unfavorable to plaintiff. All of them emphasize the newspaper publications adverse to the company as the *116main ground of their belief. Quite apart from the conceivable contrary effect of those that were favorable, it is to be remembered that, as pointed out authoritatively, the influence of newspaper publications upon the state of the public mind, however potent at the time, “is necessarily . short-lived”: Com. v. Smith, 185 Pa. 553, 568. Nor does there seem to be any reason for excepting from this statement what one of plaintiff’s witnesses characterizes as the “spectacular” publication of the fac simile letter. The important parts of the letter had, with the writer’s approval, been published in the Reading Eagle, another newspaper of the city, on Nov. 18, 1911. There is nothing per se prejudicial or offensive in a fac simile reproduction. Its ordinary effect is simply the elimination of questions of accuracy and possibly an increase of conspicuousness. In order to make the effect attributed to the newspaper publications by the witnesses appear as a reality to the court, it would seem that there ought to be some proof of the actual and present existence of an unfriendly sentiment by means of recent expressions of feeling, opinions, or prejudices, traceable to the cause stated — something to indicate with a reasonable degree of directness and positiveness that an adverse impression made by the publications at the time is still active in the minds of the people. Without anything of that kind the-utmost deference to the personal beliefs and opinions of the witnesses called by plaintiff will not justify the court in declaring that, from any of the causes mentioned, prejudice against plaintiff “appears to the court” to exist and that a fair and impartial trial cannot be had. This makes it unnecessary to consider the effect, under Burns v. Penna. R. R. Co., *222*Pa. 406, of the participation of plaintiff’s representatives in the public discussions heretofore spoken of, thereby *at*least recognizing the propriety and need of discussion.

When we come to the allegation that many of the inhabitants of the county have an interest adverse to plaintiff in the question involved in these suits, etc., the mat*117ter seems still plainer. The only “interest” averred in the petitions, or deducihle from the proofs, or relied upon in plaintiff’s argument, is the interest of the taxpayers of the county, qua taxpayers, in the result of the actions. Whatever the precise definition of the “interest” meant by the statute may be (see Brittain v. Monroe County, 214 Pa. 648, 651; Huntingdon County Line, 14 Pa. Superior Ct. 571, 578; Oakland v. Oakland Water Front Co., 50 Pac. 268; Graziani v. Burton, County Supt., et al., 97 S. W. 800, it is not that of taxpayers merely. This is clearly implied in Brittain v. Monroe County, ubi supra, was distinctly held by Judge McClure in Lewisburg Bridge Co. v. Union & Northumberland Counties, 37 Pa. C. C. Rep. 73, and must be so unless the authorization of a change of venue under this provision of the Act of 1909 is to be regarded as a means of indirectly and practically nullifying Sec. 6, Act of April 16, 1840, P. L. 410, forbidding one’s interest as a taxpayer to disqualify him as a juror in any cause in which the county, etc., shall be a party or concerned — an enactment from which assuredly that of 1909 was not intended to derogate.

Finally, in judging of the practicability of a fair trial, it is needful to reckon with a due exercise of the right of challenge: Everson v. Sun Co., 215 Pa. 231, 234. Any element of prejudice or interest of less sweeping proportions than that contemplated by the statute as ground for a change of venue may be neutralized by a careful selection of the jury; and this, as appears from the decision just cited, is a determining consideration in the absence of a clear and convincing establishment of the allegations made in support of the application, and wherever the facts proven do not amount to a positive bar to a fair trial. All the cases show that a change of venue is not granted lightly or without real necessity; one of the very obvious reasons being the great additional burden of expense and inconvenience entailed by a trial in another county. If that is of moment where there is *118but one case in question, it is of much graver moment where there are four, which are not claimed to be triable together and the costs in which must fall upon the defendant, who is resisting the removal.

Our conclusion is that it does not appear to the court that local prejudice *exists*against the plaintiff, or that a large number of the inhabitants of this county has an interest in the question involved adverse to the plaintiff, or that the latter cannot have a fair and impartial trial here, and consequently a change of venue is to be refused. It is, however, deemed advisable to limit this decision, for the present, to the one case, above entitled. Its trial may afford further information both to the parties and to the court, valuable in the disposition of the applications in the remaining cases, with which, if need be, this one may by proper methods again be included.

The rule to show cause is discharged.

The lower court dismissed plaintiff’s application for change of venue. Plaintiff appealed.

*Error assigned,*among others, was in discharging plaintiff’s rule for change of venue.

*Cyrus C. Derr,*for appellant.

*Joseph R. Dickinson,*with him *Ira G. Kutz,*for appellee.

May 15, 1916:

Per Curiam,

The order is affirmed on the opinion of the learned president judge of the court below discharging the rule to show cause why a change of venue should not be granted.