dissenting.
I dissent from the opinion of the majority in the present cases.
In my view, the motions to strike ont and the demurrers . which accompanied the motions for a change of venue are not demonstrative of a willingness to submit to the challenged jurisdiction of the court; they responded to statutory re quirements which provide, in effect, that some of the defendant’s pleadings he filed with the motion for a change of venue.
I am not convinced that, if the motions for a change of venue are disregarded, the pleadings filed therewith must subsist, in the sense of conferring on the district court a jurisdiction which perhaps it lacks.
Section 79 of the Code of Civil Procedure, as amended by Act No. 34 of April, 1928, provides that actions to obtain . indemnity from an insurance company, when such indemnity arises from an insurance policy contract must be tried in the district where the cause, or some part thereof, arose. In the fulfillment of a contract either of two things may happen, namely, that the contract is performed in a normal way, or that compulsion becomes necessary for its performance. The essential elements of the relation established by a contract of insurance are: the obligations of the insured as to payment of the premium and those others assumed by Mm under the contract; the obligations of the insurer to pay or compensate the insured for any loss that he may suffer in certain contingencies; the risk provided for; and the event or occurrence. It is undeniable that once the event has taken place (the fire, for instance) and the stipulations of the contract have been thus far carried out by the insured, the latter is entitled to be paid, totally or partially, the amount of the policy, or to require the repairs or replacement agreed, upon. If the insurer acquiesces in this right, he pays the insurance money, or otherwise performs the contract. This would be a case of normal performance, and the fire, the loss, etc., do not create a cause of action.
*325But if the- insurer, in disregard or in violation of the right of the insured, refuses to perforin by failing’ either to pay or to repair, then there is a came of action. This expression has a procedural meaning. No mention is made in the statute of a right to secure payments or sums of money, hut of causes of action, that is, of the exercise of an action in the courts, and such cause of action arises where the party, who afterwards becomes a defendant, disregards or violates the preexisting right of the prospective plaintiff. I am strongly inclined to the view that the fact from which arose the cause of action in the present cases was the refusal of the insurer to perform the contract; and, if this is so, it seems to me that the District Court of San Juan was properly designated as the court having jurisdiction of the actions.
For the foregoing reasons, I dissent as to that part of the opinion which remands the cases to the District Court of Ponce for trial therein.