Kiku Saito v. Policy Holders L. Ins. Assn.

MILLER, J., pro tem.

This is an appeal from an order denying appellant’s motion for change of place of trial from San Joaquin County, in which the action was filed, to Los Angeles County.

The complaint shows that one Chiuchiro Saito took out a policy of life insurance with appellant corporation; that Kiku Saito was at that time the wife of the insured, and was made the beneficiary in the insurance policy; that the insured subsequently died, that due proof of death was made

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by the widow, and, together with a demand for the payment of the amount of insurance provided in the policy, was served on appellant; that appellant refused to pay, and the suit followed.

On its first appearance appellant filed a demurrer and an affidavit of merits, a demand and notice of motion for change of place of trial.

In its affidavit appellant avers that it is, and at the time of the commencement of the action was, a resident of the county of Los Angeles, where its principal place of business was located; that it was and is a corporation; that it issued its policy of insurance to the deceased in Los Angeles County; that the obligation sued on was made, and was and is performable, if at all, in Los Angeles County.

It is contended by appellant that the complaint is silent as to where the insured resided, or where the policy of insurance was executed or was to be performed.

At the time of the hearing of the motion for change of place of trial, the plaintiff was permitted to file a counter-affidavit alleging that the insured was a resident of and actually resided in San Joaquin County at the time the policy of insurance was issued and delivered to and accepted by the insured; that the insured died in San Joaquin County, and that the obligation under the policy of insurance was performed in San Joaquin County.

Appellant urges here the identical question that it has heretofore repeatedly urged in other appeals to this court in other eases presenting a parallel state of facts to those presented in the case here under consideration, namely: That counter-affidavits on behalf of a plaintiff cannot be considered in opposition to defendant’s motion for change of place of trial, and that plaintiff is, by law, restricted to a consideration of the facts disclosed in his complaint.