Bruil v. Nw. Mut. Relief Ass'n

• Decision Date: 09 October 1888
• Citation: 39 N.W. 529,72 Wis. 430
• Parties: BRUIL ET AL. v. NORTHWESTERN MUT. RELIEF ASS'N.
• Court: Wisconsin Supreme Court

72 Wis. 430

39 N.W. 529

BRUIL ET AL.

v.NORTHWESTERN MUT. RELIEF ASS'N.

Supreme Court of Wisconsin.

October 9, 1888.

Appeal from circuit court, Iowa county.

Action by Charles A. Bruil, John E. Bruil, and Affie Rosetta Bruil, infants, by I. C. Comfort, guardian ad litem, against the Northwestern Mutual Relief Association, on a life insurance policy issued by defendant on the life of plaintiffs' father. Defendant appeals from an order denying its application to change the place of trial.Frank E. Parkinson, ( Lamb & Jones, of counsel,) for appellant.

The cause of action arose on the acceptance of the application for membership. The place of the contract is the place of acceptance and the place of performance. Bliss, Ins. § 362; May, Ins. § 66, and cases cited. The non-performance is the breach--the cause of action. No cause of action arose till defendant was in default. Ruse v. Insurance Co., 23 N. Y. 516;Hunt v. Bratt, 23 Iowa, 171;Huntley v. Merrill, 32 Barb. 626;Shattuck v. Insurance Co., 7 Ins. Law J. 937, and cases cited; Gould, Pl. § 159; 2 Pars. Cont. 582. The death of the insured, and the proofs of loss, were not the cause of action; they were conditions precedent. May, Ins. § 476; Dalby v. Assurance Co., 15 C. B. 387; 3 Add. Cont. 1232; Story, Prom. Notes, § 27; Veeder v. Baker, 83 N. Y. 156. The cause of action arises out of the transactions and the breach, and all these occurred in Dane county. Statutes requiring certain penal actions to be brought in the county where the cause of action accrues, furnish a guide to the construction of our statute. Such an action by a creditor of a corporation against one of its officers is not triable in the county where the debt was contracted. The debt is no part of the cause of action. Veeder v. Baker, 83 N. Y. 156;Fire Department v. Beecher, 99 N. Y. 429, 2 N. E. Rep. 154. So, also, in actions on sheriff's bonds. Bank v. Harrison, 1 Bush, 384;Foster v. Wade, 4 Bush, 628.

Aldro Jenks, for respondents.

The omission to have stated the death of the insured would have made the complaint demurrable on that ground. The death is therefore a part of the cause of action. None of appellant's authorities are applicable to this case. In Veeder v. Baker, 83 N. Y. 156, the facts relied upon as controlling the place of trial simply went to the measure of damages. Fire Department v. Beecher, 99 N. Y. 429, 2 N. E. Rep. 154, cited by appellant, is really an authority against it.

COLE, C. J.

The circuit court heard 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 section 1771, Rev. St. 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 subdivision 5, § 2619, which, in effect, 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 there 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...