State ex rel. Boyd v. Aarons

• Decision Date: 10 February 1942
• Citation: 239 Wis. 643,2 N.W.2d 221
• Parties: STATE ex rel. BOYD v. AARONS, Judge.
• Court: Wisconsin Supreme Court

239 Wis. 643

2 N.W.2d 221

STATE ex rel. BOYD

v.AARONS, Judge.

Supreme Court of Wisconsin.

Feb. 10, 1942.

Original action. Mandamus to the Circuit Court for Milwaukee County; Charles L. Aarons, Judge.

Writ denied.

On May 22, 1941 Antoinette Slugg commenced an action against Alfred Boyd, doing business as Slinger Transfer, and Maryland Casualty Company, a foreign corporation, defendants, to recover for the death by wrongful act of her husband, William G. Slugg, Jr. The complaint alleges that on March 31, 1941 Slinger Transfer, by one of its servants, negligently operated a motor truck in the county of Waukesha, resulting in a collision between the truck and a car driven by William G. Slugg, Jr., and personal injuries to Slugg, from which he died on April 1, 1941. Maryland Casualty Company was the insurer of Slinger Transfer. The residence of Boyd is alleged as Slinger, Washington County, Wisconsin, and the principal office of defendant, Maryland Casualty Company, is stated to be in the city of Milwaukee. The action was commenced in the circuit court for Milwaukee County. There was a petition for a change of venue to Washington County and in connection with this, a stipulation to the effect that the accident occurred in Washington County instead of Waukesha County as alleged in the complaint.

On October 30, 1941 the Circuit Court for Milwaukee County denied the motion for change of venue. Petitioner, Alfred Boyd, seeks by mandamus to compel a change of venue.

James E. Coleman, of Milwaukee, for petitioner.

Shaw, Muskat & Paulsen, of Milwaukee, for respondent.

WICKHEM, Justice.

Relator contends that Milwaukee County is not the proper place for the trial of this action and relies to establish this proposition upon the provisions of sec. 261.01 (11), Stats. This section reads as follows:

“261.01 Place of trial. Except as provided in section 220.12 and subject to the provisions for change of venue the properplace of trial of civil actions is as follows:

* * * * * *

(11) Auto accident actions. Of an action growing out of the negligent operation of a motor vehicle, the county in which the cause of action arose or where the defendant resides.”

Relator claims that since he resides in Washington County and since the accident happened in that county, Washington County is the only proper place for trial of this action. Involved in this contention is the claim that since Boyd is the alleged tort-feasor he is the defendant in the sense ascribed to that word in the statute. On the other hand, respondent contends (1) that the insurer is a defendant directly liable to plaintiff upon plaintiff's cause of action against Boyd; (2) that it is a defendant under sec. 261.01(11) or (3) (in the alternative) that sec. 261.01(5), Stats., providing that the proper venue of an action against an insurance company upon a policy issued by that company is the county in which the defendant has its principal office applies. In effect, relator's argument is that there is only one tort-feasor and one principal defendant in this case, and that while for the convenience of plaintiff he is permitted to join the insurance company, this does not affect the venue statute, nor give to plaintiff the privilege of suing at the place of residence of the insurance company to the inconvenience of the alleged tort-feasor.

We are persuaded that this argument is not sound. Sec. 261.01(11), Stats., does not mention specifically the tort-feasor but governs the venue of an action growing out of the negligent operation of a motor vehicle and places the venue in the county where the cause of action arose or where the defendant resides. There is some argument to the effect...