Clark v. Policy-Holders Life Insurance

BARNARD, P. J. This is an appeal from an order deny- • ing a motion for a change of venue to Los Angeles County in an action filed by the respondent in Tulare County to recover, as beneficiary, under two policies of life insurance issued by the appellant. The appellant’s principal place of business is in Los Angeles and the policies were applied for by the respondent’s husband and delivered to him in that county on May 16, 1931. At that time the insured was a resident of Los Angeles County, but, at his subsequent request, notices of premiums, assessments and dues were sent by the appellant to him at his address in Visalia, California, from June, 1931, until the time of his death. While he died in Los Angeles on February 25, 1933, he then was and for many months had been a resident of the county of Tulare. The respondent has resided in Visalia since June, 1931.

It is appellant’s contention that these contracts of insurance were made and were to be performed in the county of Los Angeles; that the obligation or liability, if any, arose in that county since the insured died there; and that it necessarily follows that the breach of the contracts, if any, occurred in that county.

Article XII, section 16, of the Constitution reads as follows: “A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases. ’ ’

It may be assumed that these contracts were made in Los Angeles County (Saito v. Policy Holders Life Ins. Assn., 132 Cal. App. 412 [22 Pac. (2d) 724]), and, further, that the obligation or liability arose there, this being the place where the insured died. (Washington v. Policy Holders Life Ins. Assn., 130 Cal. App. 43 [19 Pac. (2d) 516]; Robinson v. Order of Railway Employees, 53 Cal. App. 404 [200 Pac. 87] ; McKenzie v. Los Angeles Life Ins. Co., 96 Cal. App. 386 [274 Pac. 384].) It does not follow, however, that an action based thereon must be filed in that county since the [507]constitutional provision also permits the same to be filed where the breach occurred. The question here presented is as to whether such a breach occurred in Tulare County.

The contracts sued on are practically identical and the only provision material here reads as follows: “The Association hereby agrees to pay to Maude M. Clark, wife, the beneficiary hereunder, the sum of Fifteen Hundred Dollars in cash following the receipt of dne proof of the death of the member, or Policyholder, in good standing, . . . ” The appellant relies upon the case of Burr v. Western States Life Ins. Co., 211 Cal. 568 [296 Pac. 273, 277], In that case, involving the place where payments under a certain insurance policy were to be made, it' was held that an express provision in the policy making the ordinary death benefit payable at a designated place sufficiently disclosed the intention of the parties that all payments coming due under the terms of the policy should be paid at the place named. The opinion in that case quotes from 6 Ruling Case Law, page 902, as follows: