Slovenic Nat. Ben. Soc. v. Dabcevich

• Decision Date: 02 June 1926
• Docket Number: Civil 2447
• Citation: 246 P. 765,30 Ariz. 294
• Parties: SLOVENIC NATIONAL BENEFIT SOCIETY, a Corporation, Appellant, v. ILIJA DABCEVICH, Appellee
• Court: Arizona Supreme Court

246 P. 765

30 Ariz. 294

SLOVENIC NATIONAL BENEFIT SOCIETY, a Corporation, Appellant, v. ILIJA DABCEVICH, Appellee

Civil No. 2447

Supreme Court of Arizona

June 2, 1926

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge.

Affirmed.

Mr James P. Lavin, Mr. M. L. Ollerton and Mr. Thomas J. Croaff for Appellant.

Messrs Cox & Carson, for Appellee.

Lockwood, J. McAlister, C. J., and Ross, J., concur.

OPINION

Lockwood, J.

Slovenic National Benefit Society, a corporation organized under the laws of the state of Illinois, with its principal office in Chicago, hereinafter called defendant, prior to and during the month of June, 1922, and continually since then, has been conducting a mutual benefit society for members of the Slovenic race, through their membership in local lodges, issuing certain benefit certificates to said members agreeing to pay sick and death benefits in case of total disability or death. In 1922 Ilija Dabcevich, hereinafter called plaintiff, became a member of a local lodge of the defendant, situated in Gila county, and received its benefit certificate in due form dated May 25th, 1922. On or about the eighth day of July of that year plaintiff became ill. He received sick benefits under the provisions of the certificate up to May 26th, 1924, at which time they were discontinued by orders from the defendant. Prior to that time plaintiff had removed from Gila county to Maricopa county and on December 29th, 1924, filed suit in the superior court of Maricopa county to recover from defendant sick benefits as provided in the certificate from May 26th, 1924, to the date of filing suit, and also to recover certain sums he claimed to be due him on checks which had been previously issued in payment of prior benefits, but which had not been indorsed by him nor the proceeds received by him.

Before filing an answer defendant presented an affidavit signed by the president of the local lodge in Gila county, asking that the cause be transferred to the superior court of Gila county on the ground that the proper venue of the action was in that county and not in Maricopa. This motion was resisted by plaintiff, and upon hearing the court overruled it. Thereupon defendant filed a general demurrer and a general denial. The general demurrer having been overruled the case was, March 2d, 1925, set for trial on April 3d. On March 25th the defendant filed a motion for change of venue under paragraph 495, Revised Statutes of Arizona of 1913, Civil Code, which was by plaintiff resisted and by the court denied. The case was tried to a jury, which returned a verdict in favor of plaintiff in the sum of $ 331.50. A motion for new trial was duly made and overruled, and defendant appeals.

There are six assignments of error raising in effect four questions of law, which we will consider as seems advisable. Assignment No. 1 presents the question as to the correctness of the court's ruling in refusing to transfer the cause from Maricopa to Gila county on the ground that it was brought in the wrong county. The rule governing the venue of this action must be deduced from the following paragraphs of the Civil Code of 1913:

"394. No person shall be sued out of the county in which he resides, except in the following cases:

"(1) Where the defendant or all of several defendants reside out of the state, or their residence is unknown, the suit may be brought in the county in which the plaintiff resides. . . ."

"(18) Suits against railroad companies, insurance companies, . . . and other corporations may be brought in any county in which the cause of action, or a part thereof, arose, or in the county in which the defendant has an agent or representative or owns any property or conducts any business."

"3387. Any insurance company may be sued upon a policy of insurance in any county within the state where the cause of action arose or in the county where the state capitol is located. . . ."

This last paragraph is found in title 24 of the Code of 1913, which is entitled, "Insurance." It is, however, claimed by defendant that a corporation of its character is expressly excepted from the provisions of paragraph 3387, supra, by paragraph 3474 of the same title. This section is found under article 6 of title 24, entitled, "Fraternal," and reads as follows:

"Except as herein provided, such societies shall be governed by the provisions of this article and shall be exempt from all other provisions of the insurance laws of this state, not only in governmental relations with the state, but for every other purpose and no law hereinafter enacted shall apply to them unless they be expressly designated therein."

The phrase, "such societies," as found in this section, refers to corporations and societies of the kind defined in paragraph 3471 of the same article, and there is no dispute that defendant is within such definition. Such being the case, we think it is obvious that paragraph 3474 expressly exempts defendant from the provisions of 3387, and that it cannot be claimed the venue of suits against it on its certificates of insurance is regulated by the last-named paragraph. We are therefore relegated to the general provisions in regard to venue above set forth.

Paragraph 394 contains some eighteen subdivisions governing the venue of civil actions. Some of them are mandatory as to the particular county in which certain classes of suits must be brought; others are merely permissive. In many cases it is optional with the plaintiff to bring a suit under either one of several paragraphs. We think this is true in regard to subdivision 18. An action may be brought against an insurance company in the county in which the cause of action arose, or in which the defendant has an agent or representative or owns any property or conducts any business, but, as provided in subsection 1, where the defendant resides out of the state, the suit may also be brought in the county in which the plaintiff resides. It appears from the record herein that the defendant is a foreign corporation with its principal place of business in Chicago, Illinois. The case of Boyer v. Northern Pacific R. R. Co., 8 Idaho 74, 70 L. R. A. 691, 66 P. 826, cited by defendant, is clearly in point. Therein the court says:

"Both upon principle and authority, private corporations are residents of the state in which they are created. They have, and can have, but one domicile, -- that the state of their birth, and which is fixed by the charter of incorporation. They may migrate into other countries and jurisdictions for the purpose of business, and may be permitted to carry on business in other states; yet, so far as jurisdiction of courts is concerned, they are treated both by our federal courts and by our state courts as residents of the state in which created, and nonresidents of other states. . . .

"Foreign corporations are and remain, to all intents and purposes, so far as jurisdiction of actions is concerned, nonresidents of this state."

This suit might have been brought against defendant either in Maricopa or Gila county, and under such circumstances the court had no discretion to order it removed on an application of this nature.

The second assignment of error is that the court refused to order a change of venue under paragraph 495, Revised Statutes of Arizona of 1913 (Civ. Code).

Said paragraph reads in part as follows:

"495. If either party to a civil action pending in the superior court file an affidavit in the case, alleging either of the following grounds therefor, the venue thereof may be changed as hereinafter provided: . . .

"(2) When the convenience of witnesses and the ends of justice would be promoted by the change.

"(3) For other good and sufficient cause, to be determined by the court."

Paragraph 496 provides that the grounds above specified shall be as to their truth and sufficiency discretionary with the court, but that its decision may be appealed from.

It appears from the record that eight days before the case was due for trial an affidavit was filed on behalf of defendant setting up substantially, along with other things we need not consider, that all of the witnesses whom the defendant intended to call and part of those whom plaintiff intended to call lived in Gila county, with the general conclusion that the ends of justice would be promoted by changing the place of trial to Gila county. Plaintiff demurred to said application, and further denied that the convenience of witnesses would be served by changing the place of trial, alleging that he and five material witnesses whom he intended to call lived in Maricopa county and that he intended to call no witnesses from any other county. Further objection was made on the ground that the motion was made too late. The court, after considering both affidavits, denied the motion.

It is, of course, the law that the action of the trial court in a matter of this kind can only be reversed when it clearly appears that it has abused its discretion. We have before us to determine such a question two affidavits, contradictory in effect, and leading to different conclusions by the court. Defendant in his argument endeavors to show that it appeared later at the trial that certain of the matters set forth in plaintiff's affidavit were not true. This, however, was not before the trial court at the time of the application, and the question of whether it abused its discretion must be determined by what was before it at that time and not what developed afterwards. We are clearly of the opinion it does not appear from the record that the trial court abused its discretion upon the showing made at the time the motion was heard.

The third, fifth and sixth assignments of errors...