Fidelity and Casualty Company of New York v. Carroll

• Decision Date: 04 December 1917
• Docket Number: 23,273
• Citation: 117 N.E. 858,186 Ind. 633
• Parties: Fidelity and Casualty Company of New York v. Carroll
• Court: Indiana Supreme Court

117 N.E. 858

186 Ind. 633

Fidelity and Casualty Company of New York v. Carroll

No. 23,273

Supreme Court of Indiana

December 4, 1917

From Marion Superior Court (92,338); Theophilus J. Moll, Judge.

Action by William H. Carroll against the Fidelity and Casualty Company of New York. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p. 590.)

Affirmed.

Solon J. Carter and Williams & Orbison, for appellant.

Addison C. Harris, for appellee.

OPINION

Spencer, C. J.

Action by appellee to recover attorney's fees for services rendered. On appeal from a judgment for plaintiff, appellant contends that the Marion Superior Court erred in overruling its motion for a new trial and, under that assignment challenges first the action of the superior court in denying it a change of venue from the judge. Appellant is a foreign corporation, having its principal office in the city of New York, but is doing business in this State, and the affidavit which accompanied the motion for a change of venue was executed for and on its behalf by its district or resident manager. The sufficiency of this affidavit is the first question to be determined.

Our statute directs that a change of venue shall be granted in any civil action "when either party shall make and file an affidavit of the bias, prejudice, or interest of the judge before whom the said cause is pending." § 422 Burns 1914, § 412 R. S. 1881. Under this statute, when a proper affidavit has been made and filed, the court has no discretion but must grant the change. Burkett v. Holman (1885), 104 Ind. 6, 8, 3 N.E. 406; Krutz v. Griffith (1879), 68 Ind 444, 447; McClain v. Steele (1915), 59 Ind.App. 657, 659, 109 N.E. 793. A corporation clearly has the same right to a change of venue on account of the prejudice of the trial judge as is accorded to any other party litigant. Shattuck v. Myers (1859), 13 Ind. 46, 74 Am. Dec. 236; Western Bank, etc. v. Tallman (1862), 15 Wis. 101; Commercial Ins. Co. v. Mehlman (1868), 48 Ill. 313, 95 Am. Dec. 543. It has been expressly decided, however, that in view of the language of the statute, an affidavit for a change of venue from the judge on the ground of bias, prejudice or interest must be made by the party, and not by his agent or attorney, although it may be filed by the latter. Firestone v. Hershberger (1889), 121 Ind. 201, 22 N.E. 985; Heshion v. Pressley (1881), 80 Ind. 490, 493; Stevens v. Burr (1878), 61 Ind. 464, 466.

The inquiry then arises, How may the affidavit of a corporation be executed by the party? It is true that in a broad sense a corporation always acts through an agent, and can act in no other way, but a "distinction must be noted between a corporate act, performed through the intermediation of a person specially empowered to act as its agent, and a like act done immediately by the corporation through its executive or administrative officers, which may be termed its inherent agencies. A corporation may employ agents and may be represented and bound by them the same as a natural person. But the corporation can act for itself through some agency inherent in its corporate form. Normally such agency inheres in the natural persons who hold and administer the offices of the corporation. The law recognizes that the officers are the means, the hands and the head, by which corporations normally act." 2 Thompson, Corporations (2d ed.) § 1387; American Soda Fountain Co. v. Stolzenbach (1907), 75 N.J.L. 721, 726, 68 A. 1078, 16 L. R. A. (N. S.) 703, 127 Am. St. 822. Following this analogy it is held that the acts of a corporation done through its officers are acts done per se, so far as a corporation may be said to act by itself, while the act of a corporation through an agent is an act per alium. 2 Thompson, Corporations (2d ed.) § 1387. In view of this distinction, which is clearly recognized by the courts, it follows, under the decisions in Stevens v. Burr, supra, and subsequent cases, that when a change of venue from the judge on the ground of bias, prejudice or interest is requested in behalf of a corporation,...