Mullen v. Northern Accident Ins.

26 S.D. 402 | S.D. | 1910

McCOY, J.

This action was instituted for the purpose of recovering upon an accident insurance policy issued by appellant to respondent. The venue was laid in Lawrence county and summons was served upon defendant, the appellant, in Brown county. Defendant in due time demanded a change of place of trial and made application to the circuit court of Lawrence county for an order changing the place of trial from Lawrence to Brown county. The application was denied, and exception taken, which ruling of the court is now assigned as error.

Section 101, Code Civ. Proc., as amended by chapter 283, Laws 1909, provides that the suit shall be tried in the judicial subdivision in which the defendant shall reside at the commencement of the action. The appellant is a domestic corporation organized under the laws of this state and is transacting an accident insurance business in the city of Aberdeen, Brown county. By its "principal place of business” is meant the place where its president, secretary, and board of directors meet to transact the governing business of the corporation proper, where the books of the corporation are kept; that is, where the governing power of the corporation is exercised and controlled by the board of directors and officers of such corporation, and does not mean every place where such corporation may happen to transact business. 6 Words & Phrases, § 5559; Standard Oil Co. v. Commonwealth, no Ky. 821, 62 S. W. 897; Middletown Perry Co. v. City of Middletown, 40 Conn. 65; Milwaukee Steamship Co. v. City of Milwaukee, 83 Wis. 390, 53 N. W. 839, 18 L- R. A. 353. Unless otherwise prescribed by statute, a domestic corporation for the purpose of being sued is a resident of the county where its principal place of business is located, and suits against it should be brought in such county, subject to the power of the court to change the venue to some other county for the reasons mentioned in section 102, Code Civ. Proc., as amended by chapter 283, Laws 1909. There being no showing made by respondent as to the convenience of witnesses or otherwise that would authorize the court to retain- the cause for trial in Lawrence county, the application for change of place of trial by defendant should have been granted, and the court therefore erred in not granting the application. Subdivision 5, § 99, Code Civ. Proc., providing that “all actions brought on a policy of insurance to recover for loss or damage to property insured, shall be tried in .the ' comity or judicial subdivision where such property is situated at the time of such loss or damage,” does not apply to suits on accident policies insuring against accidents to human beings. There is nothing in the statute of this state requiring actions of this character to be brought in the county where the cause of action arose as' exists in some of the states. Cases holding that domestic corporations have a right to- trial in the county where their principal place of business is located: Jenkins v. Stage Co., 22 Cal. 538; Cohn v. Railway Co., 71 Cal. 488, 12 Pac. 498; Crookston v. Mining Co., 13 Utah, 117, 44 Pac. 714; Easley v. New Zealand Ins. Co., 4 Idaho, 203, 38 Pac. 405; Holgate v. Oregon Ry. Co., 16 Or. 123, 17 Pac. 859; Krogh v. Pacific Development Co., 11 Cal. App. 237, 104 Pac. 698; 12 Cent. Digest, tit. “Corporations,” § 1955; 22 Ency. Pleading and Practice, 802.

The judgment of the circuit court is reversed and the circuit court of Lawrence county is directed to enter an order changing the place of trial from Lawrence to Brown county.