Zinn v. Germantown Farmers' Mutual Insurance

132 Wis. 86 | Wis. | 1907

Dodge,'J.

This action having been once before this court and the rights of the members of the corporation in and to' the surplus in its treasury having been exhaustively considered, little remains but to apply the conclusions then reached and declared, which became irrevocably the law of this case.

Turning, then, to the former decision, we find it unambiguously declared that those at any given moment holding policies are the members and all the members of the corporation and the beneficial owners of all its assets; also that the surplus in excess of the needs of the corporation was a proper subject for distribution at any time. We now have, as an additional fact, that the proper authorities did, on March 19, 1906, vote: “There is hereby ordered to be distributed to such members [viz., those entitled thereunto] the sum of $50,000.” Who were those members “entitled thereunto” ? Those who held policies on March 19, 1906, or any one who might be a member at the time of physical payment of the money to him, which of course would exclude any one whose membership might terminate after March 19th by lapse or expiration of policy, sale of insured property, or otherwise, before he could induce the treasurer to make such physical payment? Obviously, some considerable time must elapse between the identification of the persons who are to share in such a distribution and the ascertainment of the amount to which each is entitled. Long and complicated computations are essential before the latter fact is known. Again, if the personnel of the distribution must change with each issue of a new, or expiration of an existing, policy, pending such computation new rights of proportion arise daily or hourly and disarrange those already reached, and so delay again the ascertainment of the final fact, thus assuring further changes and an endless chain of arithmetic, so that, in practical operation, a conclusion never could be reached as to the amount to which any member would be entitled. Such conclusion must be still further beyond practical possibility if, as is usually the case, agents remote from the computers are issuing new policies, so that the latter cannot know at any given moment that their figures are based on the existing facts as to membership. ' All this results in a necessity that some definite time be adopted when the rights of individuals become fixed, after which may be applied the arithmetical process by which they become known. In deference to such necessity the rule has become settled as to stock corporations that a dividend belongs to those who own the stock when it is declared. Seeley v. N. Y. Nat. Exch. Bank, 8 Daly, 400; Jermain v. L. S. & M. S. R. Co. 91 N. Y. 483; Hopper v. Sage, 112 N. Y. 530, 20 N.E. 350; 2 Thomp. Corp. § 2112; Helliwell, Stock & Stockh. § 313. Complete analogy exists between rights of members in a mutual insurance company and stockholders in a stock company in and to such a surplus. Huber v. Martin, 127 Wis. 412, 433, 105 N. W. 1031, 1135; 2 May, Ins. (4th ed.) §§ 548, 549; Korn v. Mut. Ins. Co. 6 Cranch, 192. Declaring a dividend is nothing but authoritatively deciding to distribute some or all of the surplus. We therefore think it entirely logical to apply the foregoing well-established rule, and to hold that on March 19, 1906, $50,000 became separated from the corporate assets and became the property of the several members then existing, payable to each on demand when the amount to which he was entitled had been ascertained. This is in accord with the holding of the trial court.

The next question, after thus identifying the legal recipients of this fund, is the portion to which each is entitled. Many methods of apportionment are suggested, and in each there can he suggested possible situations resulting in unfairness or offering opportunities for discrimination for and against individuals. It might not be easy as an original process to conclude which is least objectionable or most equitable. The trial court apparently considered himself concluded by the former decision of this court, wherein it was said (127 Wis. 438, 105 N. W. 1040):

“In case of its [the corporation] being wound up, the net assets constituted a fund for distribution between the members according to their respective contributions to the company’s treasury. In case of apy distribution of its surplus, other than following a dissolution, they were entitled to so participate.”

Accordingly, after identifying the persons, he ruled that each such person should share in the proportion he had at any time paid into the treasury, whether during the term of his existing policy or any prior ones, and without regard to whether his membership had been continuous or broken by greater .or less intervals, and without considering how. much of his payments had at any time been in excess of expenses properly chargeable against them, and thus had directly contributed to the surplus. We agree that no other reasonable meaning can be found in our former declaration, and must therefore approve the conclusion reached.

By the Oourt. — Judgment affirmed.

Timlin, T., took no part.