Yellow Cab Co. v. Smith (In re Whitman)

• Decision Date: 13 January 1925
• Citation: 186 Wis. 434,201 N.W. 812
• Parties: IN RE WHITMAN. IN RE AUTOMOBILE LIABILITY CO., LIMITED MUTUAL. YELLOW CAB CO. v. SMITH, INSURANCE COM'R.
• Court: Wisconsin Supreme Court

186 Wis. 434

201 N.W. 812

IN RE WHITMAN. IN RE AUTOMOBILE LIABILITY CO., LIMITED MUTUAL. YELLOW CAB CO.

v.SMITH, INSURANCE COM'R.

Supreme Court of Wisconsin.

Jan. 13, 1925.

Appeal from Circuit Court, Milwaukee County; Gustave G. Gehrz, Judge.

In the matter of the liquidation of the Automobile Liability Company, Limited Mutual. From an order made after application by Platt Whitman, directing W. Stanley Smith, Commissioner of Insurance, to levy an assessment against the policy holders, Yellow Cab Company appeals. Appeal dismissed.Kaumheimer & Kenney, of Milwaukee, for appellant.

Lenicheck, Boesel & Wickhem, of Milwaukee (Frank T. Boesel, of Milwaukee, of counsel), for respondent.

DOERFLER, J.

“The Automobile Liability Company, Limited Mutual,” is a corporation organized under chapters 86 and 89 of the Statutes of 1913, authorized to do business as a domestic insurance company on a mutual plan, and to insure automobile risks such as public liability, property damage, fire, theft, and collision. Its principal office and place of business is in the city of Milwaukee. In the year 1922 the company became insolvent, and the insurance commissioner of the state of Wisconsin, under the provisions of the Statutes, made an application to the circuit court of Milwaukee county, by petition, to have such insolvency declared and to authorize him to take possession of all of the assets of the company for the benefit of creditors and of the policy holders, and to liquidate its affairs. Upon a hearing pursuant to an order to show cause why the prayer of the petitioner should not be granted, the company appeared by its counsel, and after due hearing the court ordered and decreed, among other things, that the company be liquidated under the direction of the insurance commissioner, pursuant to the provisions of section 1970m, Wisconsin Statutes, and that such commissioner be vested with the title to all the assets of whatever nature of said company, and authorized to do any and all things that might be necessary in accordance with law, for the speedy and proper liquidation of the affairs of such company. The petitioner then filed a petition in said court for the purpose of obtaining an order of assessment against the various policy holders, and the court thereupon issued an order to show cause why the prayer of the petitioner should not be granted, and such order to show cause was, pursuant to the order of the court, duly published in certain newspapers in the city of Milwaukee once a week for three successive weeks. Such last-named petition duly came on before the court for hearing, and was duly heard. At such hearing the insurance commissioner presented in detail his various computations, which were received and offered in evidence. There was also introduced the records of the company, and a number of insurance experts were called and testified as to the nature and proper method of levying the assessments. The court thereupon ordered and decreed, among other things, that there be levied an assessment upon all the members or policy holders of said company who were such at any time between the 4th day of September, 1915, and the 2d day of March, 1922, in the sum of $421,958.10, for the purpose of paying and adjusting all the claims and expense of litigation of the company, and the decree then ordered:

“That each of said members and policy holders * * * be and they are hereby assessed for the said members or policy holders' ratable proportion of the claims and expenses incurred during each policy year, not provided for by the funds of the company, but in no event to exceed one additional annual premium for any one policy year, nor to extend beyond the beginning of the policy, nor after the time for which the policy was written, nor after the date of its cancellation, and that the said claims and expenses in excess of the income of the said company during the period aforesaid be determined according to their accrual by monthly periods; * * * that the following percentages of the amount of the annual or earned premium or premiums, of each member or policy holder of said Automobile Liability Company, be and they are hereby assessed against said members or policy holders as the ratable proportionate share of said members or policy holders, for claims and expenses, including liquidation expenses, incurred and arising for and during the respective periods during which said policies were in force, and not provided for by the funds of the company, said percentages being computed on a monthly basis as follows, to wit.” (Then follows a schedule of computations on monthly basis as indicated by said decree.)

The commissioner further by said order was directed to compute the respective amounts of assessments against the members or policy holders upon the foregoing basis, and to collect the amounts from the respective members or policy holders so ascertained. Due notice was given under the Statutes for all claimants or creditors to present their claims, and the claim of the Automobile Liability Company was duly filed. Uponthe hearing of the order to show cause to determine the amount of the assessment, the insurance commissioner appeared by his counsel, and several of the policy holders appeared by counsel with respect to claims of their respective clients, which did not in any way involve the question attempted to be raised by this appeal. The appellant herein did not appear upon such hearing, but subsequent to the entry of the order or decree, took the necessary steps for an appeal, which is based upon the contention that the court erred in assessing members for claims and expenses that were paid by the company prior to the time that...