Bruil v. Northwestern Mutual Relief Ass'n

72 Wis. 430 | Wis. | 1888

Cole, C. J.

The circuit court beard the motion for a change of venue in this case, and denied the same on the merits. We are disposed to consider it the same way, disregarding the objection that the motion was not made in time under the statute. This is the most favorable view which can be taken for the defendant, and we shall consequently consider whether it was 'entitled to have the place of trial changed from Iowa to Dane county, upon the admitted facts.

The defendant is a mutual relief and life insurance association, organized under sec. 1771, R. S. It has its principal office and place of business' in the city of Madison, Dane county. An application for membership in the association was made by Charles Bruil at Avoca, in Iowa county, to an agent of the company, who forwarded it by mail to Madison, and which application was approved by the proper medical examiners, and thereupon a certificate of membership was issued to him. The assessments which should be made upon him as a member were made payable at the office of the association. At the time of the application, and at the time of his death, Dr. Bruil was a resident of Iowa county, and he died in that county. This action was commenced in Iowa county, and a change of the place of trial was demanded to Dane county. This application was founded upon subd. 5, sec. 2619, R. S., which in efEect provides that the place of trial of an action against a corporation of this class shall be in the county in which it is situated or has its principal office or place of business, or in which the cause of action or some part thereof arose. As respects the locality of the corporation,— its principal office or place of business,— the conditions of the statute were met; but the difficulty of the case grows out of the language “ in which the cause of action or some part of it arose.” "Where, then, did the cause of action in this case arise or have its origin? It is insisted on the part of the defendant that it was in Dane county, because here the officers of the company accepted the application and issued the certificate of membership. It is further said, in support ■of this view, that a contract is completed where the proposal of one party has been accepted by another; that the place of contract is the place of acceptance and place of performance. This argument, however, affords little aid in the solution of the difficulty. Besides, the statute does not declare that the place of trial shall be where the contract is made or entered into, or where it is to be performed, but where the cause of action or some part of it arose. It seems to us clear that no cause of action arose on this contract until the death of the assured in Iowa county and notice thereof to the defendant. The words “ cause of action,” as here used, rvould seem to be synonymous with right of action, and include the act or omission without which there would be no cause of action or right of recovery. “ A cause of action is said to accrue to any person when that person first comes to a right to bring an action.” 1 Bouv. Law Dict. 291. “Cause of action; the fact, or combination of facts, which give rise to a right of action.” 1 Rap. & L. Law Dict. 180. In Durham v. Spence, L. R. 6 Exch. 46, the question arose under 15 & 16 Vict. ch. 76, sec. 18, which enacts that in case any defendant, being a British subject, is residing out of the jurisdiction of the superior courts, it should be lawful for the court or judge, upon being satisfied by affidavit “ that there is a cause of action, which arose,” etc., within, the jurisdiction, etc. The court held that the “ cause of action,” as there used, means the act or omission constituting the violation of duty complained of, and not the whole cause of action. See, also, cases referred to in the note to 3 Am. & Eng. Ency. Law, 46. It is evident that no cause of action arose until the death of Dr. Bruil and notice of that fact was given to the company.- Then it was the duty of the defendant to make payment according to the contract. So the fact which gave rise to the cause of action, or, in other words, gave the right of action, occurred in Iowa county, and not in Dane county. Therefore we are disposed to hold that the former county is where the cause of action arose. Suppose this were a case of fire insurance, the policy having been issued by a Madison company, insuring the dwelling of Da Bruil in Iowa county. The house is destroyed by fire, and proof of loss made. Would it be contended that the action to recover on the policy must be tried in Dane county ? That that was the county where the cause of action arose? Such, we arc confident, has not been the understanding of the profession, who have generally brought such actions in the county where the insured resided, or where the insured property was situated. As affecting the question we are considering, I can see no essential difference in the two cases, and thore would be the same reason for saying in the supposed case that the cause of action arose in Dane county that there is for saying that it arose in that county in this case. A cause of action does not arise, within the meaning of the statute, until the .existence of such a state of facts as will enable the person having the proper relations to the property or persons concerned to bring the action. Within that construction, a cause of action does not arise until the facts exist which constitute the cause of action, and not merely the one fact which may be the breach of duty. We derive but little aid from the authorities to which we were referred on the argument in the solution of this question, but we do not think there is anything in Veeder v. Baker, 83 N. Y. 156, and Ithaca Fire Department v. Beecher, 99 N. Y. 429, which have the most bearing upon the question, which is in conflict with the view which we have expressed.

It follows that the defendant was not entitled to a change of the place of trial, and the order of the circuit court is affirmed.

By the Court.— Order affirmed.