Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-12-18


snrance Company was not licensed to
transact business in the State of Maine.
Section 1850 of the Statutes of Ohio
provides that every person who eff
fects insurance in a mutual company
and continues to be insured and his
heirs, executors, administrators and as
signs, shall thereby become members
of the Company during the period of
insurance, shall be bound to pay for
losses and such necessary expenses as
accrue IN and to the company in pro-
portion to the original amount of his
deposit note or contingent liability" 1t
| further provides for making assess
mentS to meet such unpaid losses and
| expenses and for enforcing the same
| by Sllit after demand. After this Com
| panv had been put into the hands OF
| the trustee. the supreme court of Ohio
having charge of the proceedings, made
| on June H. 1861, a decree of assessment
against the New England Sardine Co
| for the sum of S559.04, as their proper
tiona! part of the unpaid losses and eX-
penses incurred during the time cow
cred by the policies standing III their
name On or about August 4. 1909 de-
mard was made upon these defendants
| for payment and on June I, 1907, four
days before the cause of action would
have been barred by the statute of linn
| itations this suit was brought. The
case comes before the law court on re-
port so that all technical questions of
pleading are waived, there being no
stipulation to the contrary Pillsbury
V. Brown 50 Maine, 455; Hurd V. Chase,
100 Maine, SCI.
In order for the plaintiff to recover
the burden is upon him to establish
two general propositions; first, that the
defendants were members of the cor
poratiOn: and second that the decree of
assessment made in Ohio is enforce
able against them in Maine, even
though the company had not been H.
censed or authorized to transact bust
ness in this State. The former is e
question of fact the latter of law.
The defendants Geny both PROPOSE
lions. but it is necessary to consider
clusion of the court on that point
makes an end Of the case.
This question of fact whether the de-
fen1ants effected the insurance ana
were members of the Company Is OF
course open to them in this action.
They have never been heard upon that
proposition and the judgment of the
Ohio court did not determine it.
True, it is not essential that non-resi-
dent stockholders should be made par
ties to the original proceeding, because
for the purpose of ascertaining the as
sets and liabilities of the corporation,
they are deemed to have been represent
ed by the CORPORATION which in such
proceeding is not conclusive against
any individual sued as stakeholder or
A member on the question whether he
is a stakeholder or member Handbook
Nat. Bank, V. Fernum, 176, L. >. 64o'
Childs V. Cleaves, 50 Maine, 49S.
Under the Ohio statute before quot
ed. a person is made member or
mutual Insurance company who has
effected insurance therein and the
plaintiff properly says, that the ques-
ton is not whether the defendants
personally negotiated the insurance.
or personally received the policies, but
whether the insurance was effected 1or
their benefit and with their prior as
sent or subsequent ratification.
Adopting this statment of the issue
the evidence is insufficient to prove
the plaintiffs case. The only witness
introduced by the plaintiff on this
point is the secretary Of the insur-
ance company, who only knows that
the policy was issued and renewed in
the names of the defendant firm
through the broker Lewis; but he
does not attempt to say whether the
u i,,,r fnr
and Reessing or for the defendants.
He relies also upon the fact that at
the expiration of the first policy the
company sent notice thereof to the
defendants. and not to Wolff and
Reessng but this has no probative
force upon the main question especial
ly as the company does not produce
any owledgement from the de-
PENDANTS. but instead letter from the
broker in which he complains sharply
because notice was sent IT, the de
PENDANTS instead of to him. This shows
that the notice when received must
have been forwarded by the defendant
to the broker as a matter concerning
him and Wolff and Reessing but not
themselves. The plaintiff also calls
attention to the plan of the premises
Med in the office of the broker to
which the policy refers. But there is
no evidence connecting the defendants
with the plan or its making. 1t may
have been made by Wolff when he
was partner in this same concern in
previous years. And finally the
plaintiff relies upon the fact that the
policies We're kept by Wolff and
Reessing as creditors of the de-
PENDANTS: but if so, that is in har-
mony with the defendants claim that
| the broker effected the insurance for
Wolff and Reessing and they and not
the defendants were thereby made
members of the corporation and
should be sued if any one.
All this is too intangible to fix
| membership upon the defendants If
the broker was their agent it was ne
cessary for the plaintiff to prove it.
1t cannot be assumed.
Moreover the defendant who man.
aged the partnership affairs says that
to the best of his knowledge and be-
lief. he never effected any insurance
with the company or authorized the
broker to do so in his behalf never
paid any premiums, never had any
policy in his pOsseSSion and knew