Hosley v. Wisconsin Odd Fellows Mutual Life Insurance

86 Wis. 463 | Wis. | 1893

"WiNslow, J.

Under subd. 5, sec. 2619, E. S., the proper place of trial of this action is the county in which the defendant has its principal office or place of business, or in which the cause of action, or some part thereof, arose. That the defendant’s principal office is in Milwaukee is- undisputed; but still, if the cause of action, or some part thereof, arose in La Crosse, the place of trial should not, under the section quoted, be changed. The question, therefore, is, Did the cause of action, or any part of it, arise in La Crosse county? We think this question must be answered in the affirmative. As was said in Bruil v. Northwestern M. R. Asso. 72 Wis. 430, “ the words ‘ cause of action ’ . . . include the act or omission without which there would be no cause of action or right of recovery.” Of course, the making of the contract, the payment of the premiums, the death of the assured, and the furnishing of the proofs of death, are all essential and vital facts without which there would be no cause of action; but even with all of these facts no cause of action would be complete until ninety days had passed after the receipt of proofs without payment. It was the default in payment within the ninety days which made the cause of action perfect. Prior to this default an action would have been premature. This default took place in La Crosse county, because by the contract and by-laws of the company the check was to be delivered to the beneficiaries, and, as they were continuously residents of La Crosse, that delivery was to take place in La Crosse county. Hibernia Nat. Bank v. Lacombe. 84 N. Y. 367. We conclude that the default, without which there could be no recovery, occurred in La Crosse county.

By the Court.— Order reversed, and action remanded for further proceedings according to law.