INDUSTRIAL INDEMNITY COMPANY (a Corporation) et al., Respondents, v. GOLDEN STATE COMPANY, LTD. (a Corporation), et al., Defendants; G. W. THOMAS DRAYAGE & RIGGING COMPANY, INC. (a Corporation), et al., Defendants and Appellants; THE ROBERT L. JOHNSON CORPORATION (a Corporation), Intervener and Appellant, 49 Cal. 2d 255

McCOMB, J. Industrial Indemnity Exchange (hereinafter referred to as Exchange) was a reciprocal insurance organization handling workmen’s compensation insurance. Industrial Indemnity Company (hereinafter referred to as Company) also handled workmen’s compensation insurance. There was considerable interrelation between Exchange and Company but no competition. Industrial Underwriters (hereinafter referred to as Attorney) was the managing entity of Exchange and Company.

In a reciprocal exchange the participants, called underwriters or subscribers, exchange insurance contracts for their mutual protection through the medium of an attorney-in-fact, who also sets rates, settles losses, compromises claims and cancels contracts. Attorney acted in this capacity for Exchange under an agreement known as Underwriters Agreement. In return for its services it received a percentage of the premiums deposited by the subscribers and was required to furnish offices and personnel for Exchange’s operations out of this percentage.

Attorney, a partnership with substantially the same stock ownership as Company, also furnished offices and personnel for the latter. The Insurance Commissioner objected to the interlacing by Attorney of its private corporation (Company) and Exchange. He made certain recommendations looking to the separation of the management of these entities or the elimination of possible conflicting loyalties through a combination of their activities. An agreement was entered into between Company and Exchange whereby the insurance policies of Exchange would be transferred to and reinsured by Company as of December 31, 1948.

The agreement provided that Company would service and run out all policies then in force and would pay the subscribers of Exchange an amount equal to the value of the entire net worth of Exchange as determined by such run-out. Consents were obtained from 98 per cent of the subscribers of Exchange to this agreement. Subsequently Company brought an action for declaratory relief regarding the rights of the nonconsenting subscribers. Cross-complaints were filed by several sets of these subscribers. After trial, judgment was rendered in favor of Company, and the cross-complaints were ordered dismissed.

Two separate sets of defendants appealed,

(1) G. W. Thomas Drayage and Rigging Company, Inc., W. R. Ballinger and Son, a corporation, and Minna M. Ballinger (hereinafter referred to as defendant Thomas Drayage and Rigging Company), and

(2) Robert L. Johnson Corporation, for itself and as representative of all similarly situated co-owner subscribers of Exchange (hereinafter referred to as defendant Johnson Corporation). On appeal it was held that the contract between Company and Exchange was illegal and void in violation of

section 1101 of the Insurance Code. (Industrial Indem. Co. v.

Golden State Co., 117 Cal.App.2d 519 [256 P.2d 677].) The appellate court (1) reversed the judgment in favor of Company and remanded the case to the trial court with directions to deny all declaratory relief to plaintiffs, and (2) stated that “in the cross-actions, relief will be granted [to appellants] only with respect to the consequences of the illegality of the transfer and assumption agreement.” (See p. 540.) It then directed the trial court to grant defendants “such relief as the court will deem fit to enable them to recover in their representative capacity for subscribers the business and assets obtained by Company in consequence of the agreement herein held to be invalid. ...” (See pp. 540-541.) (Italics added.) After the reversal of the trial court’s judgment defendant Johnson Corporation filed a petition for judgment and decree pursuant to its

interpretation of the effect of the appellate court’s remittitur. Defendant Thomas Drayage and Rigging Company moved to strike this petition upon the ground that Johnson Corporation was a mere “intervenor” and as such not entitled to act on terms of equality with the other defendants. This motion was granted by the trial judge. Thereafter judgment was entered in favor of the defendants in the sum of $323,300.39. From this judgment both defendant Thomas Drayage and Rigging Company and defendant Johnson Corporation appeal.

Appeal of DefeNdant Thomas Drayage and RiggiNG COMPANY In view of the former decision on appeal the trial court was limited to a determination of this issue: What business and assets were obtained by Company in consequence of the “ Transfer and Assumption Agreement”? There can be no question that the “agreement” held to be invalid referred to the Transfer and Assumption Agreement that was the basis of the litigation. An examination of the record discloses that the following findings of fact are sustained by substantial evidence: “IV.

Coincident with the issuance to Underwriters of the Certificate of Authority to act in liquidation of the Exchange, and on November 4, 1953, Company transferred to Underwriters and Underwriters accepted on behalf. of Exchange and its subscribers, and with the approval of the Advisory Committee of Exchange, all of the business, property and assets of Exchange remaining in its hands after satisfaction of liabilities of the Exchange and which had been received by Company in consequence of the Transfer and Assumption Agreement.

Underwriters has thereafter at all times continued in possession of and presently holds such business, property and assets for distribution to the subscribers of the Exchange in liquidation of its business and affairs. As of March 31, 1954, the net worth, representing the excess of assets over liabilities, including reserves for losses incurred and to be incurred, of the business, property and assets so transferred, exclusive of the Special Surplus Account, was $323,-300.39. (Italics added.) “V.

The business, property and assets of Exchange received by Company in consequence of the Transfer and Assumption Agreement and thereafter transferred to Underwriters as found herein, included all assets and liabilities of Exchange as reflected on the balance sheet of December 31, 1948, and which thereafter arose or accrued and all policies of insurance in force on the books of the Exchange as of December 31, 1948, and the entire experience thereon including the development of claims and premiums.

All of the business, property and assets of Exchange of every kind or character received by Company from Exchange at any time, and all value attributable thereto have been returned by Company to Underwriters and are included within the net worth as set forth in Paragraph IV of these Findings.

The business, property and assets of Exchange do not include any policies written by the Company after December 31, 1948, for or on behalf of any former subscribers of Exchange and the net worth as set forth in Paragraph IV of the findings does not reflect any value with regard to such policies and no accounting of any profits made by Company on such policies is any part of these findings. “VI.

Under the provisions of the Transfer and Assumption Agreement, Company, with regard to policies of insurance in force in the Exchange as of December 31, 1948, took over for its own account that portion of the 1948 policy year occurring after December 31, 1948, and under the provisions of the Transfer and Assumption Agreement no adjustment was to be made to the net worth of the Exchange payable to the subscribers with regard to this portion of the experience on those policies. That portion of the 1948 policy year taken over by Company for its own account developed to be unprofitable.

This loss amounted to $156,600.53. All policies of insurance in force with Exchange as of December 31, 1948 and the entire experience on those policies, including the experience on the entire 1948 policy year, and the entire experience on policies previously issued by Exchange and expired on December 31, 1948, are a part of the business and assets of the Exchange and because of the invalidity of the Transfer and Assumption Agreement are for the account of the Exchange.

This entire experience on policies of insurance in force with Exchange as of December 31, 1948, as well as the entire experience on policies previously issued by Exchange and expired on December 31, 1948, is reflected in the amount of net worth as set forth in Paragraph IV of these Findings. “VII. All policies of insurance at any time issued by the Exchange, including those in force as of December 31, 1948, were issued subject and pursuant to the terms and provisions of an Underwriters’ Agreement executed by each of the subscribers.

Under the terms of such Underwriters’ Agreement, a true copy of which has been received in evidence as Defendants’ Exhibit No. 6, Underwriters was appointed as Attorney-in-Fact and was entitled to receive as its fee 25 per cent of all compensation premium deposits received and 5 per cent of all savings credited to each subscriber. The subscribers or any of them did not at any time have any right to any portion of these fees to be paid to Underwriters and such fees were at all times the property of Underwriters or its assignee.

The Underwriters’ Agreements have at all times been in full force and effect with regard to all policies of insurance issued by or on behalf of Exchange. “VIII.

By written agreement dated January 2, 1949, a true copy of which has been received in evidence as Plaintiffs ’ Exhibit No. 3, following the execution of the Transfer and Assumption Agreement, Company agreed to perform for Underwriters after January 1, 1949, all of Underwriters’ obligations relating to policies of insurance at any time issued by Exchange and Underwriters transferred to Company its rights to receive fees under the Underwriters’ Agreement and as yet unpaid. Company performed all services required by it to be performed under such agreement.

Following the decision of the District Court of Appeal, Company and Underwriters without notice to the defendants and cross-complainants G. W. Thomas Drayage & Rigging Company, Inc., W. R. Ballinger & Son, a corporation, and Minna M. Ballinger, terminated and cancelled the agreement of January 2, 1949, and without notice to the defendants and cross-complainants G. W. Thomas Drayage & Rigging Company, Inc., W. R. Ballinger & Son, a corporation, and Minna M.

Ballinger, executed a written agreement dated November 15, 1953, a true copy of which has been received in evidence as Plaintiffs’ Exhibit No. 4, acknowledging payment to Company of fees payable to Underwriters under said Underwriters Agreements and releasing Company of all claims by Underwriters to any fees theretofore collected by Company.

All of such Attorney-in-Fact’s fees have been properly taken into account in computing the net worth referred to in Paragraph IV of these findings and the subscribers have no right to any portion of such fees paid to or received, directly or indirectly, by Company or Underwriters and they do not constitute any part of the business, property or assets of Exchange to which the subscribers are entitled. “XIII.

All policies of insurance in force on the books of Exchange as of December 31,1948, were placed with Exchange by insurance agents or brokers who were free to place this business with such insurance carriers as they chose. The decision as to the placement of any policy of workmen’s compensation insurance by an insurance agent or broker was made each year as a new and distinct item of business taking into consideration all elements of coverage, cost, management and other relevant matters.

The placement of a policy of insurance by an insurance agent or broker with Exchange in any one year did not mean that it would be placed with Exchange in a succeeding year. “XIV. All policies of insurance placed with Company after December 31, 1948, on behalf of persons, firms or corporations who had formerly been policyholders of Exchange were voluntarily placed with Company as new items of business by insurance agents or brokers who were free to place such policies with such insurance carrier as they chose.

The decision as to the placement of such policies of workmen ⅛ compensation insurance is made each year by the insurance agent or broker as a new item of business, taking into consideration all elements of coverage, cost, management and other relevant matters. The placement of a policy of insurance with Company in any one year does not mean that it will be placed with Company in any succeeding year. In view of these circumstances surrounding the placement of business, it cannot be determined and there is no evidence that any of these policies will be placed with the Company in the future.

None of these policies was placed with Company by reason of or as a consequence of activities of Company being performed under, or arising as a consequence of, the Transfer and Assumption Agreement or because Company was regarded in any sense as being the successor of Exchange. All policies placed with Company were so placed because the coverage, cost and service afforded by management of Company was attractive to the policyholder and insurance agent or broker. (Italics added.) “XVIII.

Company did not use, succeed to or receive for its own account new or different information concerning past or prospective policyholders or succeed to or receive any new or different management, name, insignia, goodwill or agency plant from Exchange as a consequence of the Transfer and Assumption Agreement, nor did it at any time or in any manner receive any management, name, insignia, goodwill or agency plant which was a part of the business, property or assets of or belonged to the subscribers of Exchange. “XXI.

In connection with its business of insurance management, Underwriters out of its own funds employed and paid all personnel, bought and owned all equipment and developed and paid its own agency plant. None of this personnel, equipment, or agency plant was or at any time has been the property of the Exchange or the subscribers of the Exchange or any part of the business, property or assets of the Exchange. “XXII.

No policies of insurance are any part of the business, property or assets of Exchange except those policies of insurance which had been placed with and were in force on the books of Exchange and no value is to be given to nor allowance made for any prospective business not in force on the books of Exchange on December 31, 1948, in determining the business, property or assets of Exchange. “XXVI.

It is not true that the compensation paid or to be paid to or for the account of Attorney-in-Fact under the provisions of the Underwriters’ Agreements is in any amount or for any period any part of the business, property or assets of the Exchange or the subscribers to the Exchange. “XXX.

It is not true that any policies of insurance written or to be written by Industrial Indemnity Company on or after January 1, 1949, or at any time for, with, or on behalf of persons, firms or corporations who were former subscribers of the Exchange or any other persons, firms or corporations, or the profits therefrom or net earnings or any earnings thereon are or were any part of the business, property or assets of the Exchange or the subscribers of the Exchange or are any part of the business, property or assets of Exchange obtained by Company in consequence of the Transfer and Assumption Agreement. “XXXI.

It is not true that there are any other assets not yet discovered or identified which constitute business, property or assets of the Exchange or which were the business, property or assets of Exchange on December 31, 1948, or at any other time and which are not reflected in the net worth as referred to in Paragraph IV of these findings, and it is true that all of the business, property and assets of the Exchange and all of the business, property and assets of Exchange received by Company in consequence of the Transfer and Assumption Agreement are now in the possession of the Exchange, subject to the control of the Advisory Committee of the Exchange, Underwriters and the Insurance Commissioner of the State of California and are reflected in the net worth as set forth in Paragraph IV of these findings.” It logically follows that since the trial court’s findings are supported by evidence and covered the issues the appellate court had ordered retried, the judgment in the principal amount should be affirmed.

Defendant Thomas Drayage and Rigging Company urges the following contentions, which are without merit: First: That the profits arising from the placement of policies by former Exchange subscribers with Company were part of the business or assets of Exchange.

The trial court found that none of the profits arising from the placement of policies by former Exchange subscribers with Company was part of the business or assets of Exchange. (See Findings IV, V, XIII, XIV, XXII and XXX, supra.) Defendant does not attack these findings on the ground of insufficiency of the evidence, but on the ground that it is unfair and inequitable to allow Company to keep the claimed profits. This contention is unsound.

The testimony of two expert witnesses showed that in evaluating the business and assets of an established insurance business, future profits or prospective earnings are never taken into account. In other words, there is no value placed upon the possibility of future earnings. The reason is succinctly stated by one witness, Mr. Best, as follows: “Now, in the writing of that type of business [workmen’s compensation] there is never any right of a policyholder to demand that his policy be renewed, there is never any right on the part of the company to demand that that policyholder renew his policy with that company.

The business, in fact, is controlled first of all by the policyholder himself. He decides where he wants to put it. Then he hires a broker or agent to look after it, and he has a considerable say as to just where that business is to go, that is to what carrier company or reciprocal or what have you. Then finally the company gets the business. It happens that in that particular field there is a tremendous shifting from company to company as these annual policies expire. I had occasion to observe that particular matter, which is very striking.

There is great competition for those big policies, and company A may have it this year and company B gets it next year and company C gets it the third year and so forth, so it is a transitory sort of business, and not only that, but actually in such a business every year’s operation—for that matter every renewal of a policy or acceptance of a new policy—is a new venture, so to speak. It has nothing to do with what went on before.

That being so, and it being well understood that whoever carries the risk is entitled to the premium and to any profit that results because he carries the risk and must bear the loss, if there is a loss, it has always been considered that only the business that is on the books at a particular moment when the valuation is to be made can be given any weight whatever; future business itself is too uncertain.” Likewise, the testimony of witnesses Rainey, Wright, Hullin, Lynch, Williams and Miller, all of whom are brokers of workmen’s compensation insurance, support the questioned findings.

They testified that policies are reviewed annually, about two months before the expiration date, loss experience is checked, the current market is also checked for risk-loss ratio, premium brackets, dividends, etc.; that they try to “make the best deal they can” for their clients; that the practice and custom of the “American Agency system” is that the brokers “own” the business, i.e., their customer list; and that only the broker and carrier know the expiration dates. Being the “owner,” the broker is free to place the business where he wishes on expiration.

Each witness testified that he had placed business with Company, had placed it previously with Exchange, and had also placed business with other companies. They also stated that the Transfer and Assumption Agreement whereby Company took over Exchange had no influence whatever on their decisions to place with Company. Several witnesses testified that they knew Company and Exchange had had the same management and when Exchange went out of business they placed their business with Company for that reason, but they also stated that they would not have done so if they could have obtained a better “deal” elsewhere.

There was also testimony that some business was placed with Company at the client’s request because of ownership interest in Company. Defendant stipulated that seven other named brokers would testify similarly. Defendant made no attempt to rebut the foregoing testimony and produced no witnesses who testified to the contrary.

Defendant’s argument appears to be that even though future profits are not and were not an asset of Exchange, Company should not be allowed to keep them, not'because there is any evidence of bad faith, breach of fiduciary duty, mishandling of funds, or fraud, but because the District Court of Appeal originally found the Transfer Agreement to be void. It is obvious that there is no merit in this argument.

Second: That Company is not entitled to the “Attorney-in-Fact fees.” The questioned fees were derived from the unearned premiums of the 1948 policies, which were all written prior to the Transfer and Assumption Agreement.

The trial court found that Attorney was entitled to receive a percentage of premiums for its services as attorney-in-fact; that the subscribers at no time had any right to these fees; that Company agreed to perform the obligations for Attorney and was assigned the right to receive the Attorney Fees as yet unpaid; and that these fees constituted no part of the business or assets of Exchange. (See Finding VIII, supra.) The trial court also found that it was not true that the compensation paid for the account of Attorney was any part of the business or assets of Exchange. (See Finding XXVI, supra.) The evidence supporting the foregoing findings is: (

a) the Underwriters Agreement; (

b) the Transfer and Assumption Agreement; and (

e) the agreement whereby Company assumed the obligations of Attorney and Attorney assigned its rights to the management fees. The trial court was correct in finding that the Underwriters Agreement remained in effect and covered all policies written in 1948. The Transfer and Assumption Agreement did not expressly or impliedly supersede the Underwriters Agreement. Under the Underwriters Agreement the'Attorney-in-Fact had full power to reinsure; it also had full power to enforce rights and discharge liabilities in the same way as an individual subscriber could do.

The Transfer and Assumption Agreement provided that Company would reinsure all outstanding policies and would perform all the obligations of Exchange under the terms of the policies. The Underwriters Agreement was a part of each policy written. The application for insurance with Exchange provided: “This application if granted is subject to the foregoing statements and declarations and is further subject to the conditions of the following agreement which are made a part hereof and which are agreed to by the applicant as follows: . . .” Thereafter follows the Underwriters Agreement.

The last clause of the agreement provides: “This agreement is strictly limited to the use and purposes herein expressed and no other purpose; it may be terminated at any time by the subscriber or the Attorney by either giving to the other 10 days’ written notice, but, until such termination shall remain in full force and effect as to all policies of insurance hereafter issued and accepted by the subscriber; within a feasonable time after such termination the subscriber’s account shall be liquidated and any funds standing to his credit returned.” The Transfer and Assumption Agreement did not purport to terminate the Underwriters Agreement or to terminate the outstanding policies.

It provided for (1) reinsurance of outstanding policies, (2) the transfer of assets of Exchange, (3) assumption of liabilities of Exchange in payment to the subscribers of the “adjusted net worth” of Exchange, (4) time and amount of payments to subscribers, (5) payment directly to subscribers (1948 policyholders), (6) the keeping by Company of all accounts, and (7) a waiver by Attorney of all rights to the Special Surplus Fund of Exchange, reading as follows: “In consideration of the covenants and agreements of the other parties hereto as herein contained, the Attorney-in-Fact hereby waives any and all rights it may have in and to the special surplus of the Exchange, and will not at any time hereafter assert any rights whatever in or to said special surplus. ’ ’ That the parties to the Transfer Agreement did not intend it to supplant the Underwriters Agreement is evidenced by the document executed between .Attorney and Company on January 2, 1949, whereby Company agreed to perform and discharge all the obligations of Attorney with respect to the insurance issued by Exchange, and Attorney assigned to Company its rights thereunder and agreed that it would not “at any time make any claim whatever that it is entitled to the whole or any portion of the account designated as ‘Special Surplus’ as shown on the books of the Exchange as of the close of business on December 31, 1948.” There is no contention that the services were not performed in accordance with the agreement or that Attorney did not have a right to assign these fees.

It thus appears from the Underwriters Agreement that the Attorney Fees were never a part of the assets of Exchange, even though they may have been obtained by Company as a consequence of the Transfer and Assumption Agreement. Third: That the trial court erred in holding that the Special Surplus Fund was not a part of the business or assets of Exchange.

The Underwriters Agreement provided: “A Special Surplus Fund shall be created to which shall be set aside all investment income; it shall be a joint fund and no part thereof shall be credited to the account of any individual subscriber; it shall bp used for the benefit of the Exchange as the Advisory Committee and Attorney may agree; if the Exchange discontinues business, any balance, after full provision for liabilities to the satisfaction of the Insurance Commissioner, shall be paid to the attorney to defray the expense of, and as compensation for, liquidation.” In accordance with the foregoing provision, the trial court found that the Special Surplus Fund was, under the Underwriters Agreement, to be reserved for expenses incurred in connection with liquidation and payable to Attorney; that on November 15, 1953, this was assigned to Company as compensation for work heretofore performed in connection with the liquidation of Exchange, less such portion as required to reimburse Attorney for future costs of liquidation; and that the subscribers have no right or claim to this surplus since it was not a part of Exchange’s business or assets. (Finding IX.) After the District Court of Appeal’s first decision, Attorney and Company entered into an agreement restoring the business and assets of Exchange to Attorney as Attorney-in-Fact of Exchange, subject to Attorney’s obtaining a certificate of authority from the Insurance Commissioner.

Thereafter such a certificate was issued for the limited purpose of discharging the obligations under the policies and Underwriters Agreement, winding up the affairs of Exchange, and carrying out the liquidation of the assets, business and affairs of Exchange.

The Transfer and Assumption Agreement provided, in paragraph VII: “ In consideration of the covenants and agreements of the other parties hereto as herein contained, the Attorney-in-Fact hereby waives any and all rights which it may have in and to the special surplus of the Exchange, and will not at any time hereafter assert any rights whatever in or to said special surplus.” The agreement of January 2, 1949, between Attorney and Company, paragraph (3), provided: “The Attorney-in-Fact further agrees that it will not at any time make any claim whatever that it is entitled to the whole or any portion of the account designated as ‘Special Surplus’ as shown on the books of the Exchange as of the close of business on December 31, 1948.” Defendant argues that Company waived its rights to this fund.

The trial court found otherwise. After the first decision of the District Court of Appeal, Company reasserted its right to the fund in its answer to defendant’s petition for retrial. Under the Underwriters Agreement, Attorney-in-Fact was entitled to this fund “if Exchange discontinues business,” as compensation for winding up the affairs and liquidation. The question then arises whether Exchange has been “discontinued.” The trial court found that it had, and the evidence supports the finding.

It is to be noted that the Insurance Commissioner issued the certificate of authority only to the extent necessary to wind up the affairs of Exchange. Exchange has no authority to issue new policies. Since the sum is not a part of the assets of Exchange, it is clear that the trial court’s disposition of it was correct. It is also to be noted that defendant does not claim the policy contract, which included the Underwriters Agreement, was unfair or that the policyholders (subscribers of Exchange) had been taken advantage of by Company.

The 1948 policyholders were in no sense injured nor was Company unfairly enriched at their expense. Defendant’s arguments to the contrary are unsupported by the record. The court found, and the evidence amply supports the finding, that future profits, Attorney Fees and the Special Surplus Fund were not items obtained by Company as a consequence of the illegal Transfer and Assumption Agreement. The trial court also made the following findings: “XI.

All policies of insurance at any time issued to subscribers of Exchange were for a term period of one year, and the relationship of the subscriber to the Exchange terminated upon the expiration of any such policy, except for incompleted matters as to such policy, unless continued by the issuance of a new and further policy. Underwriters had no obligation to issue any new or further policy for any subscriber of the Exchange upon the expiration of an existing policy, and a subscriber had no right to demand that any such policy be issued.

Underwriters, under the terms of the Underwriters’ Agreements and the policies of insurance issued to subscribers, had the power to cancel any such policies of insurance and to terminate the Underwriters’ Agreements at any time upon ten days’ notice and in the event of such termination, Underwriters had the duty to liquidate the subscribers’ account and return any funds standing to the subscribers’ credit. The Underwriters ’ Agreements contained no provision whereby the Attorney-in-Fact could be replaced by the subscribers. “XII.

Prior to December 31, 1948, Underwriters with the knowledge and approval of the Advisory Committee of the Exchange determined that it would not thereafter issue any new policies of insurance in the Exchange and no such policies have been issued. All policies of insurance issued to subscribers of Exchange expired by their terms on or before December 31, 1949.

Since December 31, 1948, Exchange has been engaged in no business except for the liquidation of Exchange. ’ ’ The foregoing findings, which are not disputed, show that defendant and the other 1948 policyholders have not been injured by the execution of the Transfer and Assumption Agreement, and that they have received all to which they were entitled. Therefore, they have not suffered either injury or damage. However, defendant claims that Company should be deprived of the benefits it received as a result of the discontinuance of business by Exchange.

This claim is based upon the contention that Company has'been unjustly or unfairly enriched. The evidence does not support this conclusion. During 1948 and several years prior thereto Exchange wrote the largest volume of premiums of all reciprocal workmen’s compensation insurance carriers in California. When Attorney determined to discontinue business, as it had a right to do, other insurance carriers, including Company, would, of course, obtain a share of this business.

This additional business would accrue to Company regardless of the Transfer and Assumption Agreement so long as it was competitive with other carriers. The record discloses that no policy, except where there was ownership interest involved, would have been placed with Company unless its rates or service were as good or better than other carriers. In short, the profits derived from this additional business did not arise as a consequence of the Transfer and Assumption Agreement, but as a result of Attorney’s determination not to issue any new policies.

The prior decision of the District Court of Appeal held that none of the workmen’s compensation business acquired by Company prior to 1948 was a consequence of the interlocking relationship between Attorney and Company, as “the Company did not at any time in the operation of its business use any funds, facilities or information belonging to, or secured through, the Exchange.” (See 117 Cal.App.2d 519, 537 [256 P.2d 677].) On retrial, the court found that “Company did not use, succeed to or receive for its own account new or different information concerning past or prospective policyholders or succeed to or receive any new or different management, name, insignia, goodwill or agency plant from Exchange as a consequence of the Transfer and Assumption Agreement, nor did it at any time or in any manner receive any management, name, insignia, goodwill or agency plant which was a part of the business, property or assets of or belonged to the subscribers of Exchange.” (Finding XVIII, supra.) Company received nothing, either prior to or as a consequence of the illegal Transfer and Assumption Agreement, that would give it an advantage over any other carrier in the field.

It likewise appears from the record that under the “American Agency system,” as practiced and in use in the workmen’s compensation field, the renewals or expirations (customer lists) are owned by the agent or broker, and not by the insurance carrier. It is thus evident that Company has not been unjustly or unfairly enriched. Finally, defendant claims the trial court erred in not allowing interest on the award. The trial court’s position was correct.

This was an equitable proceeding, and the rule is settled that in such a proceeding the matter of awarding or withholding interest is within the sound discretion of the trial court. Interest is awarded only when such an award is fair and equitable in consideration of the facts of the particular case. (See Leonard v. Huston, 122 Cal.App.2d 541, 548 [3] [265 P.2d 566]; Board of County Commrs. v. United States, 308 U.S. 343, 352 [60 S.Ct. 285, 84 L.Ed. 313]; Stockton Theatres, Inc. v.

Palermo, 121 Cal.App.2d 616, 632 [264 P.2d 74]; see also 90 C.J.S. (1955), Trusts, § 338, p. 584, and cases cited in nn. 60 and 61.) In the present case the trial court found that Company had not acted in bad faith, and therefore we cannot say it abused its discretion in refusing to allow interest on the award. Appeal of Defendant Johnson Corporation Defendant Johnson Corporation contends that its cross-complaint was improperly dismissed from the action. This contention is not sound.

In a stockholders’ derivative action interveners are but volunteers in the main original cause, and their counsel may not participate in the presentation of the main case save as counsel for the main stockholders may consent or the court may permit. (Mann v. Superior Court, 53 Cal.App.2d 272, 280 [2] [127 P.2d 970] [hearing denied by the Supreme Court].) In the present case the trial court was not bound to permit the intervention of others of the same class if their interests were properly protected.

So far as the record discloses here, defendant Johnson Corporation’s interests were fully and properly protected, and therefore the trial court did not err in dismissing its cross-complaint. In view of our conclusions it is unnecessary to discuss other questions argued by counsel. The judgment and orders are each affirmed. Shenk, J., Schauer, J., and Spence, J., concurred.

Finding IX reads: “Under the terms of the Underwriters’ Agreements, Exchange at all times maintained a Special Surplus Fund consisting of all investment income received on Exchange funds; this fund, in the event Exchange discontinues business and after full provision for liabilities to the satisfaction of the Insurance Commissioner, is to be paid to Underwriters to defray the expenses of and as compensation for liquidation. The amount of this fund as of March 31, 1954, was $592,322.31.

Underwriters by written agreement dated November 15, 1953, a true copy of which has been received in evidence as Plaintiffs’ Exhibit No. 38, has agreed without notice to the defendants and cross-complainants G. W. Thomas Drayage & Eigging Company, Inc., W. E. Ballinger & Son, a corporation, and Minna M.

Ballinger, to pay to Company as compensation for work heretofore performed by Company on behalf of Underwriters in connection with the liquidation of the .Exchange, a sum equal to the special surplus which Underwriters may receive, less such portion of the special surplus as may be required to reimburse Underwriters for incurred and future costs of liquidation. The subscribers of Exchange have no right or claim to any portion of this special surplus and it does not constitute any part of the business, property or assets of the Exchange to which the subscribers are entitled. ’ ’