Appendix — American Insurance v. Lucas

Supreme Court brief1941

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INDEX

PRELIMINARY OBSERVATIONS

. WITNESSES, and Their Relations to the Parties ———--

IL. INSURANCE GROUPS

Ii. CO-OPERATIVE ACTIVITIES

A. THE NATIONAL BOARD AND LOCAL BOARDS

B. INSURANCE EXECUTIVES ASSOCIATION -..

Companies in the Missouri Rate Case in the Fed-

eral Court not affiliated with Insurance Execu-

tives Association ‘

C. WESTERN INSURANCE BUREAU

D. WESTERN UNDERWRITERS ASSOCIATION

E. MISSOURI INSPECTION BUREAU

F. SUBSCRIBERS ACTUARIAL COMMITTEE -.......----

1. Organization, functions, meetings, officers and

members

2. Management of rate litigation

3. Employment of attorneyS

G. CO-OPERATION THROUGH COMMITTEES .-.........-

IV. CHARLES R. STREET ~~. -—————————-—————

Vv. INSTITUTION AND PROGRESS OF THE LITIGATION

A. oe NATURE AND CONTROL OF THE

B. LIST OF THE COMPANION CASES NOW PEND-

ING IN THIS COURT -.

C. STATE COURT LITIGATION. DECREES IN STATE

COURT RESTITUTION CASES

D. THE SETTLEMENT

E. THE DECREE OF THIS COURT

F. THE DECLARATION OF TRUST a

G. IMPOUNDMENT OF FUNDS AND DISTRIBUTIONS

H. PAPERS FILED IN THIS COURT AND INTER-

LOCUTORY INJUNCTION

VI. EXPENSES OF LITIGATION AND ASSESSMENTS ........

vil. NOTICES AND KNOWLEDGE IN GENERAL -.........-----

5

18

25

25

25

27

30

30

30

31

31

34

36

37

43

50

50

52

60

66

67

75

111

123

125

133

133

133

INDEX

C. NOTICES TO ALL COMPANIES 138

D. THE GOVERNING COMMITTEE - 142

Vill. MR. STREET'S USE OF MONEY TO PROCURE A

SETTLEMENT

145

IX. THE MEETING IN NEW YORK IN 1935 153

X. PAYMENT OF THE 1935 ADVANCE BY THE NEW

YORK COMPANIES. THE KNOWLEDGE AND ACTIONS

OF THEIR OFFICERS ;

IN GENERAL

GROUP ELEVEN ..

GROUP TWELVE—

A. At the Home Office

B. At the Chicago Office

GROUP TWENTY

GROUP TWENTY-THREE

GROUP THIRTY-FOUR

GROUP FORTY-THREE

GROUP FIFTY-SIX ....

THE MEETING IN HARTFORD IN 1935

PAYMENT OF THE 1935 ADVANCE BY THE HART-

FORD COMPANIES, THE KNOWLEDGE AND ACTIONS

OF THEIR OFFICERS

IN GENERAL __...

GROUP TWO __..

GROUP FIVE ___.

GROUP EIGHT ._.

GROUP TWENTY

GROUP TWENTY-TWO

GROUP TWENTY-EIGHT

GROUP THIRTY-ONE—

A. At the Home Office

B. At the Chicago Office

GROUP FORTY _.

GROUP FORTY-FIVE . 251

GROUP FIFTY-THREE _. ... 255

XIII. CHANGE IN TERMS OF PROPOSED SETTLEMENT __ 258

A. COMMUNICATION WITH NEW YORK COMPANIES 258

B. COMMUNICATION WITH HARTFORD COMPANIES 261

XIV. NEGOTIATION OF SETTLEMENT 266

XV. THE MEETING IN NEW YORK IN 1936, AND COLLEC-

TION OF THE GENERAL ASSESSMENT 277

A. THE MEETING

INDEX

XVL KNOWLEDGE AND CONDUCT OF INDIVIDUAL OF-

FICERS AND EMPLOYEES

GROUP ONE

GROUP TWO

GROUP THREE

GROUP FOUR

GROUP FIVE

GROUP SIX

GROUP SEVEN .-.

GROUP EIGHT

GROUP NINE

GROUP TEN

GROUP EIGHTEEN

GROUP NINETEEN

GROUP TWENTY

GROUP TWENTY-ONE

GROUP TWENTY-TWO

GROUP TWENTY-THREE

GROUP TWENTY-FOUR

GROUP TWENTY-FIVE

GROUP TWENTY-SIX

GROUP TWENTY-SEVEN

GROUP TWENTY-EIGHT

GROUP TWENTY-NINE

GROUP THIRTY --

GROUP THIRTY-ONE

GROUP THIRTY-TWO

GROUP THIRTY-THREE

GROUP THIRTY-FOUR -

GROUP THIRTY-FIVE

GROUP THIRTY-SIX

GROUP THIRTY-SEVEN

GROUP THIRTY-EIGHT

GROUP FORTY-ONE —------------nnn

GROUP FORTY-TWO ....

GROUP FORTY-THREE

GROUP FORTY-FOUR

GROUP FORTY-FIVE

GROUP FORTY-SIX -

INDEX

GROUP FORTY-SEVEN

GROUP FORTY-EIGHT

GROUP FORTY-NINE

GROUP FIFTY

GROUP FIFTY-ONE

GROUP FIFTY-TWO

GROUP FIFTY-THREE ..

GROUP FIFTY-FOUR

GROUP FIFTY-FIVE

GROUP FIFTY-SIX

GROUP FIFTY-SEVEN

NORTH BRITISH AND MERCANTILE GROUP ......

XVII. MR. STREET AND THE SUBSCRIBERS ACTUARIAL

COMMITTEE

XVIII. MR. STREET AND MR. FOLONIE

A. Mr. Folonie cleared checks for Mr. Street in 1935

B. Mr. Folonie cleared checks for Mr. Street in 1936

C. Reasons why Mr. Folonie did not ask for cupenation

friction between Mr. Folonie and Mr. Street .. 663

D. Mr. Folonie’s knowledge, and his participation in

the settlement 672

CONCLUSION oe

IN THE

Fistrict Court of the United States

FOR THE WESTERN DISTRICT OF MISSOURI.

CENTRAL DIVISION.

IN EQUITY.

No. 270

and other companion cases Nos. 271 to 426, both inclusive, except

those cases which have been dismissed.

[ee

AMERICAN INSURANCE COMPANY, A CORPORATION,

PLAINTIFF,

VS.

RAY B. LUCAS (SUCCESSOR IN OFFICE TO R. E. O'MALLEY,

SUCCESSOR IN OFFICE TO JOSEPH B. THOMPSON), SUPER-

INTENDENT OF THE INSURANCE DEPARTMENT OF THE STATE

OF MISSOURI, AND ROY McKITTRICK (SUCCESSOR IN OFFICE

TO STRATTON SHARTEL), ATTORNEY GENERAL OF THE

STATE OF MISSOURI, DEFENDANTS.

MASTER’S REPORT.

To

The Honorable Kimbrough Stone,

_ Senior Judge of the United States Circuit Court of

Appeals for the eighth circuit; a,

The Honorable Albert L. Reeves,

and

The Honorable Merrill E. Otis,

Judges of the District Court of the United States

for the Western District of Missouri,

sitting as the judges of a district court of said judicial

district organized under Section 266 of the judicial code,

as ‘amended (28:'U. S. C. A., Sec. 260). aes

PRELIMINARY

The undersigned, Paul Barnett, was appointed by this

honorable court as special master in chancery, by an order

made and entered in each of the above entitled causes,

on the third day of July, 1939. The undersigned accepted

such appointment and qualified as such master by filing

a master’s oath with the clerk of this court on the eighth

day of July, 1939. Pursuant to the terms of his commis.

sion, the master appointed Miss Emily Miles to take and

transcribe the testimony heard by the master; she ac-

cepted such appointment, and has taken and transcribed

such testimony. Such transcript, consisting of four vol-

umes of typewritten matter, is returned herewith.

The master conferred with counsel to determine where

and when the testimony of the witnesses might be taken

with the most convenience and dispatch, and then set

times and places for the hearings before the master. The

first of such hearings was held in Chicago, Illinois, be-

ginning July 27, 1939. Other hearings were held in New

York City, Hartford, Connecticut, Chicago, Illinois, St.

Louis, Missouri, and Kansas City, Missouri. The taking

of testimony was concluded on September 11, 1939.

The master has expressed no conclusions of law, be-

lieving it to be the better practice in cases pending before

three judges sitting pursuant to Section 266 of the ju-

dicial code as amended, that the judges decide questions

of law in the first instance, without the previous advice

or recommendations of a master in chancery.

After hearing a substantial portion of the testimony,

the master concluded that the question of guilty knowl-

‘ edge or the absence thereof (upon the part of insurance

executives representing various plaintiffs herein) con-

cerning the actions and conduct of Charles R. Street must

be determined, not from direct evidence, but from infer-

ences from the direct evidence. In addition thereto, in

nearly every instance the legal question was involved as

to whether the evidence was, as a matter of law, suf-

ficient to permit an inference of guilty knowledge, as dis-

tinguished from the question as to whether or not such

an inference should be drawn. This observation is not

PRELIMINARY 3

applicable to the plaintiffs in the so-called “Great Ameri-

can group” for reasons appearing in the testimony. The

master accordingly conferred with his honor, Judge Mer-

rill E. Otis (the other judges of this court being then

absent from Kansas ‘City, Missouri), and the honorable

Judge Otis advised the master to merely analyze and ar-

range the evidence, leaving the questions of fact to be

decided by the court in the first instance. This advice

has been followed by the master.

The master has prepared but one report to be filed in

each of the 137 companion cases for two reasons: (1) Much

of the testimony is pertinent to the same identical is-

sues which are common to all of the cases and (2) there

are practices peculiar to the fire insurance business which

throw some light upon the question as to whether the

conduct of various individual insurance executives in con-

nection with the payment of money to Charles R. Street,

and the reaction of such executives toward the conduct of

Mr. Street, justifies an inference of guilty knowledge

upon the part of any one or more of such executives. This

court may or may not conclude that, in that connection,

it is permissible to inquire whether the conduct of any

particular insurance executive was the normal reaction of

a man engaged in and familiar with the practises of the

insurance business, as evidenced by the reactions of all

insurance executives who had acted in the same or simi-

lar circumstances.

Because the facts will be found by the court in the

first instance, the master has not felt at liberty to treat

any testimony as irrelevant or impertinent, or to omit

the substance of any testimony, except in a few cases

where record evidence definitely fixed a date, an amount,

or other transaction, in which cases the estimates and

hazards of opinion, and qualified statements by witnesses

who testified from memory have not always been re-

the evidence that the testi-

estimate or qualified state-

ment. In

tention on either side that there was any doubt concern-

4 PRELIMINARY

ing the fact, the master has attempted to so report the

evidence that the conflicts in testimony sharply appear,

and the evidence that witnesses testified from memory or

merely gave an estimate or qualified their statements has

been preserved in the master’s report. Statements con-

tained in the digest of the evidence are the substance of

the testimony of the witnesses. Statements by the master

are contained in notes, designated as such.

Explanations of Citations.

Citations (referring to the transcript of the testi-

mony) are to the printed transcript which has been pre-

pared by the parties and filed in this court. A person’s

name appearing in parenthesis indicates the witness,

the substance of whose testimony precedes the citation.

The Roman numeral following the name of the witness in-

dicates the volume of the printed transcript in which the

evidence referred to appears. The Arabic numeral follow-

ing the name of a witness indicates the page of the

printed transcript so referred to. An Arabic numeral, fol-

lowed by a dash and another Arabic digit or digits, indi-

cates that the evidence referred to appears beginning

on the page indicated by the first numeral and ending on

the page indicated by the digit or digits after the dash.

Two or more Arabic numerals separated by a comma or

commas, following the name of a witness, indicates that

the witness has testified to the same effect two or more

times, as evidenced at the separate places in the printed

transcript indicated by such separate numerals.

WITNESSES

)

WITNESSES, AND THEIR RELATIONS TO THE

PARTIES.

The master observed the demeanor and appearance

of all of the witnesses when they testified, except the

witnesses, Robert R. Barbour, O. E. Lane, Walter F.

Brady and F. J. Breen. The testimony of these four

witnesses was taken by deposition. The master observed

nothing about the demeanor or appearance of any wit-

ness that indicated that the witness was incredible.

THE FOLLOWING WITNESSES TESTIFIED:

A.

1. George S. Allen, New York City: now is and in

1935 and 1936 was chief accountant of the Svea Fire and

Life Insurance Company, Ltd., and secretary of the Hud-

son Insurance Company (Allen, II, 153).

B.

9, BR. V. A. Baker: general auditor of Tokio Marine

and Fire Insurance Company. In 1935 and 1936 he was

supervisor of accounts of that company (Baker, II, 218).

3. Robert P. Barbour: Montclair, New Jersey: now

is and in 1935 and 1936 was United States manager of the

Northern Assurance Company group of Insurance Com-

panies, including London and Scottish Insurance Company.

His office is at 80 John Street (Barbour, I, 337, 339).

4. John R. Barry: vice-president of Carroon & Reyn-

olds, Underwriting managers (Barry, II, 117).

Illinois: was on the

years 1935 and

arious times

es (Bell, I, 137).

had entire char s companies in

their western departmen He is manager

_ gf the western department (Bell, I,

6 WITNESSES

sole authority to take care of all legal expenses and mat-

ters of litigation (Bell, I, 150).

6. Homer H. Berger, Kansas City, Missouri: at-

torney at law. His firm was employed in the present

litigation in May, 1930, and since September, 1930, he has

been the one in that firm that has been attending to the

litigation with Mr. Folonie (Berger, III, 391).

7. KR. M. Bissell, Farmington, Connecticut: in 1935

and 1936 he was president of the companies (except the

Northwestern) in the Hartford Fire Insurance Company

group (Bissell, II, 442, 443).

8. Laurens R. Bowden, New York City: now is and

in 1935 and 1936 was first vice-president of Bankers’ and

Shippers’ Insurance Company group (Bowden, II, 75).

9. Walter F. Brady, Larchmont, New York: vice-

president and secretary of Merchants Fire Assurance Cor-

poration. In 1935 and 1936 he was secretary of that com-

pany. He had supervision of whatever was done in his

office (Brady, I, 371).

10. Frank J. Breen: in March, 1936, he became presi-

dent of Standard Fire Insurance Company of New Jersey.

In 1935 he was General Agent out of Chicago (Breen, I,

383).

11. S. M. Buck, Evanston, Illinois: member of the

Subscribers Actuarial Committee since December, 1937,

Western Manager of the Firemen’s Fund Insurance group,

prior to March 15th or 16th, 1938 (Buck, I, 231, 245).

C.

12. John J. Campbell, 2912 Linwood, Kansas City,

Missouri: in charge of the office of the custodian of the

funds impounded in these cases. His employment began

sometime in 1932 or 1933. He now has charge and direc-

tion of all the books and records of the custodian’s of-

fice (Campbell, III, 519).

_13. Harold T. Cartlidge, New York City: deputy

United States manager of the Royal Insurance Company,

Ltd., and second officer with its affiliated Fire and Ma-

rine Companies. The title has been changed, but his

position, duties and prerogatives were the same in 1935

and 1936 (Cartlidge, I, 462; Warner, III, 355).

WITNESSES 7

14. John R. Cashel, Evanston, Illinois: now is and

in 1935 and 1936 was western manager of the Providence

Washington Insurance Company (Cashel, I, 315).

5. Harry G. Casper: assistant United States mana-

ger until July 1, 1935, and thereafter United States man-

ager of Eagle Star Insurance Company, Ltd. (Casper, Il,

105-106).

16. Sheldon Catlin, Philadelphia: now is and in 1935

and 1936 was vice-president of the Insurance Company of

North America group (Catlin, II, 271).

17. Herbert A. Clark, River Forrest, Illinois: mem-

ber of the Subscribers Actuarial Committee, vice-presi-

dent of the Firemen’s Insurance Company of Newark,

New Jersey (H. Clark, I, 249; Hobbs, I, 5), and of each

of its affiliated companies (H. Clark, I, 249); manager of

the western department of the Firemen’s group (Weiser,

I, 214). He was a member of that committee when this

litigation originated and was located at Chicago then, but

was not with these companies. He has been with these

companies since 1925, and on the committee since 1921

(H. Clark, I, 250).

18. Robert R. Clark: manager in the United States

of the Caledonian Insurance Company, for approximately

the last twelve years (R. Clark, II, 415). Has been in the

insurance business twenty-five or thirty years (R. Clark,

II, 439).

19. Carsten Claussen, Chicago: now is and in 1935

and 1936 was manager of the western department of

London & Lancashire Insurance Company and all of the

companies in the group (Claussen, I, 317).

20. John R. Cooney, Newark, New Jersey: now is

and in 1935 and 1936 was president of the Firemen’s group

of companies (Cooney III, 14-15).

21. Bernard M. Culver: now is and in 1935 and

1936 was president of each of the companies in the Con-

tinental or “America Fore” group (Culver, Il, 397-8;

Emes, II, 326, 336; Koop, I, 396). He succeeded Paul L.

Haid as president of the companies in this group (Haid,

II, 374).

8 WITNESSES

D.

22. Hart Darlington: now is and in 1935 and 1936

was United States Manager of the Norwich Union So-

ciety, manager of its New York department, and presi-

rT 28) the Eagle Fire Insurance Company (Darlington,

II, 288).

23. William C. Dent: now is and in 1935 and 1936

was assistant secretary in charge of underwriting of the

Potomac Insurance Company (Dent, II, 264).

24. Frederick M. Dominick, Braintree, Massachu-

setts: now is and in 1935 and 1936 was assistant secre-

tary of the Boston Insurance Company and the Old Colony

Insurance Company (Dominick, II, 490).

25. C. A. Dosdall, St. Paul, Minnesota: now is and

in 1935 and 1936 was secretary of St. Paul Fire and Ma-

rine Insurance Company and Mercury Insurance Company,

in charge of their fire business west of the Mississippi

river, including Missouri (Dosdall I, 168; McKown, I,

166).

26. Ray B. Duboc, Kansas City, Missouri: president

of the Western Fire Insurance Company (Duboc, III, 255).

E.

27. Edward West Elwell: in 1935 and 1936 was as-

sistant manager of the British Companies, and vice-

president of the American Company in the Royal Exchange

Assurance group. He is now United States manager of

the British Companies, and president of the American

Company in that group (Elwell, III, 415-416; Koenig,

II, 72).

28. W. H. Emes: in 1935 and 1936 was auditor of

the American Fore group and is now comptroller of that

group, which is the same position, except as to title

(Emes, II, 326, 336). He is now at the home office, 80

Maiden Lane (Moeckel, II, 308).

29. J.D. Erskine: now is and in 1935 and 1936 was

secretary of the Insurance Executives Association (Ers-

kine, II, 347). He is the assistant manager of the asso-

ciation, acting under Paul Haid (Nourse, II, 125; Koop,

I, 414, 410).

WITNESSES 9

30, Esmond Ewing: now is and in 1935 and 1936

was vice-president and secretary of the Travelers Fire

Insurance Company (Ewing, III, 26).

F.

31, Robert J. Folonie, Chicago, Illinois: licensed

lawyer for 39 years and attorney for plaintiffs in these

companion cases since their inception (Folonie, III, 156-7)

as chief counsel (Berger, III, 391). He had supervision

of the Kentucky rate case (Folonie, III, 212).

G.

39. G. N. Gardner: now is and in 1935 and 1936 was

vice-president of Merchants Fire Insurance Company

(Gardner, Ill, 297).

33, John F. Gilli Collingswood, New Jersey:

now is and in 1935 and 1936 was vice-president of the

Camden Fire Insurance Company (Gilliams, III, 110).

34. I. Lloyd Greene: in 1935 and 1936 was vice-

president of Boston Insurance Company and Old Colony

Insurance Company (Greene, II, 503).

H.

35. Paul L. Haid: now is and in 1935 and 1936 was

president of the Insurance Executives Association (Smith,

Ill, 32; Erskine, II, 347; Haid, II, 373). Before May 1,

1932, he was president of the companies in the America

Fore group (Haid, II, 373).

36. Harry Halprin: in 1935 and 1936 was assistant

secretary and assistant branch secretary of the Royal

Exchange group (Halprin, II, 93). He is Mr. Koenig’s

assistant (Koenig, II, 73).

37. John C. Harding, Evanston, Illinois: member

of the Subscribers Actuarial Committee since 1926. He

now is and in 1935 and 1936 was resident executive vice-

president of the Springfield Fire and Marine (Hard-

ing, I, 279-280; Hobbs, I, 5) group of companies, in ——

of the Western department. He is the manager of the

western department (Harding, I, 279-280; Schlesinger,

Il, 535-536).

38. William R. Hedge: now is and in 1935 and 1936

was president of the Boston Insurance Company and of

the Old Colony Insurance Company (Hedge, II, 517).

10 WITNESSES

39. Ernest A. Henne, Evanston, a suburb of Chicago:

now chairman of the Subscribers Actuarial Committee,

having succeeded Mr. Street in. December, 1936. He was

active in the affairs of the Actuarial Committee from

1935 until he became chairman, and attended its meet-

ings regularly (Henne, I, 20). He has been on the com-

mittee since 1932 (Henne, I, 21). Since about July, 1931,

he has been manager of the western department in charge

of the western office of the following companies (1) Con-

tinental Fire Insurance Company, (2) Fidelity-Phenix,

(3) Niagara, (4) American Eagle, and (5) First American

(Henne, I, 65-66), and was held responsible for the under-

writing results in 18 states including Missouri (Henne,

I, 66). He is in entire control of the Western office out-

side of imperial questions of policy (Culver, III, 414). He

is vice-president of all of these companies (Henne, I, 65).

He was vice-president of the Continental in 1935 (Henne,

I, 23; Hobbs, I, 5).

40. Bernard E. Hobart (I, 300): auditor in the Chi-

cago office (Harding I, 290) of the Springfield Fire and

Marine group (Schlesinger, II, 537).

41. Russell D. Hobbs, Chicago, Illinois: is and since

September, 1935, has been secretary of the Subscribers

Actuarial Committee (Hobbs, I, 3). Before he became

secretary, he was Mr. Parker’s assistant and worked very

close to him all the time (Hobbs, I, 16).

42. Joseph K. Hooker: now is and in 1935 and 1936

was vice-president of the Automobile Insurance Com-

pany and of the Standard Fire Insurance Company

(Hooker, III, 130).

43. Fred A. Hubbard: president of the Globe and

Rutgers Insurance Company in 1935 and 1936. He severed

his connections with that company in September, 1938

(Hubbard, II, 7). He is now president of the Hanover

Pie Insurance Company (Van Horne, I, 456; Hubbard, II,

ee .

I.

44. T. J. Irvine: U.S. manager of the Phoenix As-

surgnce Company of London, and President of the three

other companies in the Phoenix Assurance group since

May 1, 1935. Prior to that he was secretary for the

group (Irvine, 1, 200), ©

WITNESSES 11

K.

45. Gilbert Kingan: attorney for and manager of the

Eastern department of the United States and London

and Lancashire Fire Insurance Companies; president of

the Orient Insurance Company and of the Safeguard In-

surance Company and United States manager of the

Law Union and Rock Insurance Company (Kingan, III,

18).

46. §S. Clarence Kline: now is and in 1935 and 1936

was superintendent of agencies of the Tokio Marine and

Fire Insurance Committee (Kline, II, 184).

47. F. W. Koeckert, New York: now is and in 1935

and 1936 was United States manager of the Commercial

Union Assurance Company, Ltd., of London, England,

(Koeckert, I, 495; Hobbs, I, 5), the British General In-

surance Company, the Palatine Insurance Company and

the Union Assurance Company; president of the Com-

mercial Union Fire Insurance Company which is a New

York, American, affiliated company, and of the American

Central Insurance Company of St. Louis, Missouri; man-

ager of the California Insurance Company of San Fran-

cisco, California (Koeckert, I, 495); now is and in 1935

and 1936 was the New York member of the Subscribers

Actuarial Committee (Koeckert, I; 516). vee Tews

48. John Koenig, Rutherford, New Jersey: now is

and in 1935 and 1936 was branch secretary of the United

States branches of the Royal Assurance of London and of

the State Assurance Company, Ltd., of Liverpool, and sec-

retary and treasurer of the Provident Fire Insurance

Company (Koenig, II, 68).

- 49. William H. Koop: now is ‘and in 1935, 1936,

1937 and 1938 was chairman of the board of North Caro-

lina Home Insurance Company, and president of all of

the other companies in the Great American Insurance

group (Koop, I, 393-394), including the Detroit Fire and

Marine Insurance Company (Waldron, I, 211).

50. Wilfred Kurth, Ridgeway, New Jersey: chair-

man of the board of the Home Insurance Company. In

1935 and 1936 he was president of that company (Kurth,

I, 422-423). ,

WITNESSES

L.

51. ©. E. Lane, Westtown, Chester County, Pennsyl-

vania: now is and in 1935 and 1936 was president of the

companies constituting the Fire Association of Phila-

delphia group (Lane, I, 363; Powrie, I, 111).

52. Frank D. Layton: now is (Bell, I, 164) and in

1935 and 1936 was president of the National Fire Insur-

ance Company and of the Franklin National, the Mer-

chants and Traders, the Mechanics and Traders and the

Transcontinental Insurance Companies (Layton, III, 75).

53. W. L. Lerch: now is and in 1935 and 1936 was

300806) the Underwriters’ Grain Association (Lerch,

54. George C. Long, Jr., Hartford, Connecticut:

president of the companies in the Phoenix Insurance

group, except that he is not president of the Minneapolis

Fire and Marine or the Central States Fire Insurance

Companies. As he recalls, he is vice-president of each

of the latter, but may not be vice-president of the Cen-

tral States. In 1935 and 1936 he was vice-president of

the major companies and had supervision over the West

(Long, III, 84). He has been in the insurance business

since 1904 (Long, III, 108).

55. F. B. Luce, Providence, Rhode Island (Luce,

II, 526): now is and in 1935 and 1936 was vice-presi-

dent of the Providence Washington Insurance Company

(Luce, II, 519).

M.

56. F. W. Maasen: now is and in 1935 and 1936 was

auditor of the London Assurance Corporation group (Maa-

sen, II, 343; Nourse, II, 124).

57. W. R. McCain, Hartford, Connecticut: now is

and in 1935 and 1936 was president of the companies

constituting the Aetna Fire group (McCain, III, 331).

58. A. L. McCormack, Richmond Heights, St. Louis

County: has been engaged in the insurance business

practically all of his life. He thinks that in 1935 he was

a member of the board of directors of the Missouri As-

sociation of Insurance Agents. He thinks he was presi-

dent of that organization in 1933 and 1934. He has been

president of the Central States Life Insurancé Company

WITNESSES 13

and a member of its board of directors (McCormack, III,

998-229). He has been manager of an adjustment company

in St. Louis (Folonie, Ill, 188).

59. J. C. McKown: now is and in 1935 and 1936 was

one of the secretaries of St. Paul Fire and Marine Insur-

ance Company and Mercury Insurance Company (Mc-

Kown, I, 165) in charge of underwriting east of the Mis-

sissippi River and in Canada (McKown, I, 166).

60. Frank B. Martin, Plainfield, New Jersey: not

now connected with the Yorkshire Insurance Company

group, but in 1935 and 1936 was acting manager. He is a

— of Frank and DuBois, who were the United

tates managers of this group, and he gave his atten-

tion to the operations of the insurance group. His con-

nection with these companies terminated March 31, 1937

(F. Martin, I, 190).

61. Ronald R. Martin, Montclair, New Jersey: now

is and in 1935 and 1936 was United States manager and

member of the local board of directors of the Atlas Insur-

ance Company (R. Martin II, 1).

62. Louis Moeckel, 3250 Perry Avenue, the Bronx:

now is and in 1935 and 1936 was supervisor of the statis-

tical department of the Continental Insurance Company

(Moeckel, II, 305) in its New York office (Henne, I, 47).

He is not an executive (Moeckel, II, 306).

63. Thomas C. Moore: now is (Dent, II, 264) and

in 1935 and 1936 was vice-president and manager of

the Potomac Insurance Company (Moore, I, 529).

N.

64. Everett W. Nourse, New York: now is and in

1935 and 1936 was United States manager of the London

Assurance Corporation group. He is president of the

Manhattan Insurance Company (Nourse, II, 122) and a

member of the Insurance Executives Association

(Nourse, II, 124).

P.

65. J. L. Parsons, New York City: now is and in

1935 and 1936 was president of Crum & Forster (Par-

sons, III, 317-318; Wyatt, II, 163).

14 WITNESSES

66. Theodore Plessner: president of the North Amer-

ican Insurance Company since December 19, 1938. In

1935 and 1936 he was its vice-president and treasurer

(Plessner, II, 145).

67. A. F. Powrie, Park Ridge, Illinois, a suburb of

Chicago: now is and since 1923 has been manager

of the western de ent of the Fire Association of Phila-

delphia group (Powrie, I, 109-110; Lane, I, 363). He is

not an accountant (Powrie, I, 127).

R.

68. Charles A. Reekie: now is and in 1935 and

1936 was vice-president and secretary of the Detroit Fire

and Marine Insurance Company (Reekie, I, 212).

69. W. R. Reilly: assistant secretary of the Dubuque

Fire and Marine Insurance Company, acting under Mr.

Weiser (Reilly, I, 228).

70. Gustavus Remak, Jr.: president of The Insur-

ance Company of the State of Pennsylvania continu-

ously since September 1, 1913 (Remak, II, 220).

71. John J. P. Rodgers: now is and in 1935 and

1936 was vice-president and treasurer of The Insurance

Company of the State of Pennsylvania (Rodgers, II,

225; Remak, II, 220).

S

72. Robert D. Safford, West Hartford, Connecticut:

now is and in 1935 and 1936 was vice-president and as-

sistant secretary of the Travelers Fire Insurance Com-

pany (Safford, III, 43; Ewing, III, 26). He has charge

of its western department (Ewing, III, 30).

73. Frank A. Schlesinger, Springfield, Massachu-

setts: treasurer of three companies of the Springfield

Fire and Marine group and assistant treasurer of a non-

resident subsidiary, namely the Michigan Fire and Marine.

Since 1935 his position has been —— with the New

England. He was elected treasurer of that company about

two years ago (Schlesinger, II, 528-529).

74. Cecil F. Shallcross: United States manager for

the North British and Mercantile Insurance Company,

and president of the Commonwealth Insurance Company

of New York, the Homeland Insurance Company, the

WITNESSES 15

Mercantile Insurance Company of America and the Penn-

sylvania Fire Insurance Company of Philadelphia (Shall-

cross, II, 342).

75. C. A. Siedel: until August, 1935, he was assist-

ant secretary of the Stuyvesant Insurance Company.

Since then he has been its secretary (Siedel, II, 28).

76. Frank M. Smalley: now is and in 1935 and 1936

was president of the Glens Falls Insurance Company and

of the Commerce Insurance Company (Smalley, II, 37).

77. J.D. Smart: now is and since last September has

been president of the New Hampshire Fire Insurance

Company and of the Granite State Insurance Company.

In 1935 and 1936 he was vice-president of the New Hamp-

shire Fire Insurance Company and secretary of the Granite

State Insurance Company (Smart, Ill, 115).

78, Charles H. Smith, Chicago: in 1935 and 1936 he

was the assistant general agent of the Hartford Fire In-

Company and the Citizens Insurance Company

(Smith, I, 334). He has served continuously as a member

of the Subscribers Actuarial Committee since June, 1937

(Smith, I, 334).

79. Clyde P. Smith: now is and in 1935 and 1936 was

secretary of the Hartford Fire Insurance Company (Smith,

III, 30, 38-39) and of the Citizens Insurance Company

and the New York Underwriters. He is assistant secre-

tary of the Northwestern Fire and Marine and Twin City

Insurance Companies (Smith, III, 38). He is a bookkeeper

(Smith, III, 39).

80. Paul B. Sommers, Maplewood, New Jersey: now

is and in 1935 and 1936 was president of the American

Insurance Company and Columbia Fire Insurance Com-

pany (Sommers, II, 131-132).

81. George W. Swallow: now is and in 1935 was

secretary-treasurer of the New Hampshire Fire Insurance

Company, and secretary of the Granite State Insurance

Company (Swallow, III, 126).

T.

82. William H. Talcott: auditor of the Scottish

Union and National Insurance Company (Talcott, III, 152).

16 WITNESSES

83. A. T. Tamblyn: now is and has been president

of the Lincoln Fire Insurance Company (Tamblyn, II,

299) which company took over the Chicago Fire and Ma-

rine and Presidential Fire and Marine Companies at the

end of 1931 (Tamblyn, II, 300).

84. Paul W. Terry, St. Louis: now is and since Oc-

tober, 1919, has been manager of the Missouri Inspection

Bureau (Terry, III, 372).

85. John M. Thomas: now is and in 1935 and 1936

was president of the National Union Fire Insurance Com-

pany (Thomas, II, 243).

86. Oswald Tregaskis, New York City: now is and

in 1935 and 1936 was manager of the United States

branch of The Sun Insurance Office and president of the

Patriotic Insurance Company (Tregaskis, II, 16).

V.

87. John R. Van Horne: secretary of Globe & Rutgers

Insurance Company. In 1935 and 1936 he was resident

counsel of the company (Van Horne, I, 453, 455).

He was in the office of the company in 1936 (Van Horne,

I, 454).

88. J. H. Vreeland: United States manager of the

Scottish Union and National Insurance Company since

1920, and president of the American Union since its or-

ganization which was prior to 1935 (Vreeland, II, 461-

462).

W.

89. Raymond Waldron, Detroit, Michigan: has been

vice-president of the Detroit Fire and Marine Insurance

Company since 1935. So far as that company’s activities

were concerned the Missouri Fire rate litigation was un-

der his jurisdiction (Waldron, I, 206). His sole connection

with the group was with the Detroit Fire and Marine In-

surance Company (Waldron, I, 211).

90. Harold Warner, Forest Hills, New York: now

is and in 1935 and 1936 was United States manager of

the Royal Insurance Company and of the Liverpool and

London and Globe Insurance Company, and president of

the Federal Union Insurance Company and the Star In-

WITNESSES 17

surance Company and of the Newark and the Queen In-

surance Companies (Warner, III, 351).

91. H. F. Waterman: now is and in 1935 and 1936

was secretary of the Agricultural Insurance Company

(Waterman, II, 54).

92. Robert C. Weigel: in 1935 and 1936 was secre-

tary and comptroller of the Rhode Island Insurance Com-

and of the Merchants Insurance Company of Provi-

dence (Weigel, III, 1).

93. S. F. Weiser, Dubuque, Iowa: now is and in 1935

was secretary of the Fire and Marine Insurance Company

and of the National Reserve Insurance Company (Weiser,

I, 213, 222). He is in active management of these com-

panies (Weiser, I, 222).

94. Henry P. Whitman: vice-president of the Phoenix

Insurance Company (Whitman, Ill, 127).

95. Herman L. Wilkins: was secretary-treasurer of

Importers and Exporters Insurance Company in 1935 and

1936. He ended his connection with this company on

April 30, 1937 (Wilkins, Il, 100).

96. Walter D. Williams, Rockford, Illinois: is retired

from active work, but was for many years vice-president

(Williams, I, 70-71; Hobbs, I, 5), and manager of the west-

ern department of the Security Insurance Company of

New Haven, and for the last three years was president

of the company. He was in charge of the western de-

partment for both the companies and for its affiliated com-

y known as the East and West. He retired May 1,

1939 (Williams, I, 71). He was a member of the Sub-

scribers Actuarial Committee throughout the year 1935

and retired in 1937 (Williams, I, 71, 89).

97. Henry J. Wyatt: now is and in 1935 and 1936 was

connected with a management group, namely, the Crum

and Forster group (Wyatt, II, 162), and vice-president of

“the companies” (Wyatt, Il, 163).

Il.

INSURANCE GROUPS.

A great many insurance companies are operated in

groups, each company having the same or nearly the same

officers and having the same office and employes. The

group is usually known by the name of the oldest or

largest company in the group.

COMPANY GROUPS.

Defendant’s Exhibit 320 is a list of the various plain-

tiff companies in these 137 cases showing the number of

each individual case and the companies grouped as to

their various affiliations as the groups existed in 1935

and 1936 as was testified to by the various witnesses. It

was agreed that except as otherwise specifically shown

by the record the companies so grouped are under common

management (III, 326-7). Said Defendant’s Exhibit 320

(III, 327) is as follows:

“List OF PLAINTIFF COMPANIES SHOWING NUMBER OF EACH

CASE AND GrouP AFFILIATIONS.

( 1) American Insurance Company No. 270

Columbia Fire Insurance Company No. 296

( 2) Aetna Insurance Company No. 273

The World Fire and Marine Insur-

ance Company No. 422

( 3) Agricultural Insurance Company No. 271

( 4) Atlas Assurance Company, Ltd. No, 280

5) Automobile Insurance Com of Hart-

i: ford ited No. 281

Standard Fire Insurance Company of

Connecticut No. 400

( 6) Bankers and Shippers Insurance Com-

pany No, 282

New Jersey Insurance Company No. 364

Pacific Fire Insurance Company No. 377

Boston Insurance Company No. 283

. Old Colony Insurance Company No. 375

INSURANCE GROUPS

Caledonian Insurance Company

Camden Fire Insurance Association

Chicago Fire and Marine Insurance Com-

pany

Presidential Fire and Marine Insur-

ance Company

7 ata Union Assurance Company,

American Central Insurance Company

California Insurance Company

Commercial Union Fire Insurance Com-

pany

Palatine Insurance Company, Ltd.

Union Assurance Society, Ltd.

Continental Insurance Company

American Eagle Fire Insurance Company

Fidelity-Phenix Fire Insurance Company

First American Fire Insurance Company

Niagara Fire Insurance Company

Dubuque Fire and Marine Insurance

Company

National Reserve Insurance Company

Eagle Star and British Dominions Insur-

ance Company

Fire Association of Philadelphia

Lumbermen’s Insurance Company

Reliance Insurance Company of Philadel-

phia

Victory Insurance Company

Fireman’s Fund Insurance Company

Home Fire and Marine Insurance Com-

pany

Firemen’s Insurance Company

Concordia Fire Insurance Company

Girard Fire and Marine Insurance Com-

pany

Mechanics Insurance Company of Phila-

delphia

Milwaukee Mechanics Insurance Com-

pany

(21)

(22)

(23)

(24)

(25)

(26)

INSURANCE GROUPS

National Ben Franklin Fire Insurance

Company

Superior Fire Insurance Company

Glens Falls Insurance Company

Commerce Insurance Company

Globe and Rutgers Fire Insurance Com-

pany

Great American Insurance Company

American Alliance Insurance Company

County Fire Insurance Company

Detroit Fire and Marine Insurance Com-

pany

Massachusetts: Fire and Marine Insur-

ance Company

Hanover Fire Insurance Company

Hartford Fire Insurance Company

Citizens Insurance Company

New York Underwriters Insurance Com-

pany

Northwestern Fire and Marine Insurance

Company

Twin City Fire Insurance Company

The Home Insurance Company

City of New York Insurance Company

Franklin Fire Insurance Company

National Liberty Insurance Company of

America

Importers and Exporters Insurance Com-

pany | |

Insurance Company of North America

The Alliance Insurance Company

National Security Fire Insurance Com-

pany

Philadelphia Fire and Marine Insurance

Company

Insurance Company of the State of Penn-

. sylvania

No. 354

No. 406

No. 321

No. 297

No. 322

No. 324

No. 275

No. 304

No. 305

No. 345

No. 326

No. 327

No. 293

No. 366

No. 372

No. 411

No. 328

No. 294

No. 318

No. 356

No. 332

No. 334

No. 274

No. 358

No. 381

No. 335

(27)

(28)

(29)

(30)

(31)

(32)

(33)

(34)

(35)

(36)

(37)

(38)

(39)

CO)

INSURANCE GROUPS

The London Assurance Corporation

Manhattan Fire and Marine Insurance

Company

Union Fire Insurance Company

London and Lancashire Insurance Com-

pany, Ltd.

The Law Union and Rock Insurance Com-

pany, Ltd.

Orient Insurance Company

Safeguard Insurance Company

Merchants Fire Assurance Corporation of

New York

Merchants Fire Insurance Company

a Fire Insurance Company of Hart-

or

Franklin National Insurance Company

Mechanics and Traders Insurance Com-

pany

Transcontinental Insurance Company

National Union Fire Insurance Company

New Hampshire Fire Insurance Company

Granite State Fire Insurance Company

The Northern Assurance Company, Ltd.

London and Scottish Assurance Corpora-

tion, Ltd.

Northern Insurance Company

— Union Fire Insurance Society,

The Eagle Fire Company of New York

Phoenix Assurance Company, Ltd.

Columbia Insurance Company

Imperial Assurance Company

United Firemen’s Insurance Company

Potomac Insurance Company

Providence Washington Insurance Com-

pany

The Phoenix Insurance Company

Connecticut Fire Insurance Company

oe

21

No. 339

No. 344

No. 413

No. 340

No. 336

No. 376

No. 394

No. 348

No. 349

No. 355

No. 319

No. 425

No. 409

No. 359

No. 363

No. 323

No. 369

No. 342

No. 370

No. 374

No. 307

No. 382

No. 295

No. 331

No. 414

No. 426

No. 386

No. 383

No. 302

INSURANCE GROUPS

Equitable Fire and Marine Insurance

Company

Minneapolis Fire and Marine Insurance

Company

Central States Fire Insurance Company

Rhode Island Insurance Company

Guaranty Fire Insurance Company

Merchants Insurance Company

Royal Exchange Assurance

Provident Fire Insurance Company

The State Assurance Company, Ltd.

Royal Insurance Company, Ltd.

Federal Union Insurance Company

Liverpool and London and Globe Insurance

Company, Ltd.

The Newark Fire Insurance Company

Queen Insurance Company of America

Star Insurance Company of America

St. Paul Fire and Marine Insurance Com-

pany

Mercury Insurance Company

Scottish Union and National Insurance

Company

American Union Insurance Company

Security Insurance Company of New

Haven

East and West Insurance Company

Springfield Fire and Marine Insurance

Company

Michigan Fire and Marine Insurance Com-

pany

New England Fire Insurance Company

Sentinel Fire Insurance Company

Stuyvesant Insurance Company

Standard Fire Insurance Company of New

_ Jersey

Sun Insurance Office, Ltd.

Patriotic Insurance Company of America

No. 310

No. 383

No. 383

No. 391

No. 325

No. 347

No. 392

No. 387

No. 403

No. 393

No. 312

No. 338

No. 361

No. 389

No. 402

No. 395

No. 350

No. 396

No. 279

No. 397

No. 309

No. 399

No. 351

No. 362

No. 398

No. 404

No. 401

No. 405

No. 379

INSURANCE GROUPS

Svea Fire and Life Insurance Company

Hudson Insurance Company

Tokio Marine and Fire Insurance Com-

pany, Ltd.

The Travelers Fire Insurance Company

Western Fire Insurance Company

Yorkshire Insurance Company, Ltd.

London and Provincial Marine and Gen-

eral Insurance Company, Ltd.

Crum and Forster

British America Assurance Company

North River Insurance Company

United States Fire Insurance Company

Westchester Fire Insurance Company

Western Assurance Company

United States Merchants and Shippers In-

surance Company

(57) Underwriters Grain Association

(This is an impounding account solely.)”

The evidence supports the grouping of Companies

shown by Exhibit 320: -

Group 1. Sommers, ll, 132. Group 2. McCain,

Ill, 331. Group 3. Waterman, II, 54. Group 4.

Martin (R. R.), I, 1. Group 5. Hooker, Ill, 130.

Group 6. Bowden, Il, 75. Group 7. Dominick, II,

490; Hedge, II, 517. Group 8. Clark (R. R.), Hl,

415. Group 9. Gilliams, II, 110. Group 10.

Tamblyn, II, 299. Group 11. Koeckert, I, 495. Group

12. Henne, I, 57, 65; Moeckel, II, 305; Culver, Ill,

397. Group 13. Weiser, I, 213. Group 14, Casper,

II, 106. Group 15. Powrie, I, 109; Lane, I, 363.

Group 16. Buck, I, 231. Group 17. Clark (H. A.),

I, 249; Cooney, III, 14. Group 18. Smalley, Il, 37.

Group 19. Van Horne, I, 453; Hubbard, II, 7. Group

20. Koop, I, 393; Waldron, I, 206. Group 21. Hubbard,

II, 9. Group 22. Smith (C. H.), I, 334; Bissell, II,

442. Group 23. Kurth, I, 423. Group 24. Wilkins,

24

INSURANCE GROUPS

II, 100; Barry, II, 117. Group 25. Catlin, II, 271.

Group 26. Remak, II, 220; Rodgers, II, 225. Group 27,

Nourse, II, 122; Maasen, II, 343. Group 28. Claussen,

I, 317; Kingan, III, 18. Group 29. Brady, I, 371.

Group 30. Gardner, III, 297. Group 31. Bell, I, 137;

Layton, III, 75. Group 32. Thomas, II, 243. Group

33. Smart, III, 115; Swallow, III, 126. Group 34,

Barbour, I, 339. Group 35. Plessner, II, 145. Group

36. Darlington, II, 288. Group 37. Irvine, II, 200,

Group 38. Dent, II, 264; Moore, I, 529. Group 39.

Cashel, I, 315; Luce, II, 519. Group 40. Long, III,

84; Whitman, III, 128. Group 41. Weigel, III, 1.

Group 42. Koenig, II, 68; Elwell, III, 415. Group 43.

Cartlidge, I, 462; Warner, III, 351. Group 44. Mc-

Kown, I, 166; Dosdall, I, 168. Group 45. Vreeland,

II, 462; Talcott, III, 152. Group 46. Williams, I, 71.

Group 47. Harding, I, 279; Schlesinger, II, 529. Group

48. Siedel, I, 28. Group 49. Breen, I, 383. Group

50. Tregaskis, II, 16. Group 51. Allen, II, 153.

Group 52. Kline, II, 184; Baker, II, 218. Group 53.

Ewing, III, 26; Safford, III, 43. Group 54. Duboc,

III, 255. Group 55. Martin (F. B.), II, 190. Group

56. Wyatt, Il, 162; Parsons, III, 318. Group 57.

Lerch, I, 306.

CoopERATIVE ACTIVITIES 25

III.

CO-OPERATIVE ACTIVITIES.

THE NATION2!: BOARD AND LOCAL BOARDS.

The National Board is the National Board of Fire

Underwriters. The Local Boards are those to which the

ies have to contribute for organization purposes

to keep their organization going (Koeckert, I, 505). The

National Board has, as part of its service, a very extensive

legal department (Koeckert, I, 503).

INSURANCE EXECUTIVES ASSOCIATION.

This association was organized on May 1, 1932 (Er-

skine, Il, 359; Haid, II, 373), and still continues. Its of-

fices are in New York where the New York heertag this

‘proceeding was held. Its only executives are Mr. Haid

and Mr. Erskine. Its other employes are secretarial and

stenographic. That was the situation in 1935 (Erskine, II,

359). No prior organization performed substantially the

same functions (Haid, II, 374) after it was formed it

opened offices and started to work with Mr. Haid and Mr.

krskine as its salaried executives (Haid, II, 374).

Mr. Haid, the president (see witnesses), is the em-

ploye of insurance executives. Under his agreement of

employment in 1932, he was requested to sell the stock

that he had in any insurance company and to not there-

after be a stockholder in any insurance company

so long as he held his position, which he did. He is not,

and since 1932 has not been, a director or an officer in

any fire insurance company, and has not been an agent for

any fire insurance company, except as might be inferred

— his being president of this association (Haid, I,

This association is a convenient vehicle for looking

after those things where the insurance companies have a

common interest. A good many of the activities of the

association are and have been carried out through the or-

ganizations which are set up especially for some partic-

ular jurisdiction, but these are sometimes confined to

a particular territory and sometimes to a particular branch

of activity; whereas, the executives have to be interested

in all of the activities in all of the territory. That resulted

26 COOPERATIVE ACTIVITIES

in, or at least it had something to do with, the formation

of this association (Erskine, II, 357-358).

This association is used as a sort of working forum in

which matters of general interest to the stock fire insur-

ance business may be considered by its members. It is a

sort of clearing house of information in matters of that

kind, and of trouble. It aids in developing policies on

things that affect the various insurance companies in com-

mon. It has a board of trustees (who rotate) of fifteen

members (Haid, II, 374).

Defendant’s Exhibit 207 (Haid, II, 407) is a list of

the trustees of the Insurance Executives’ Association for

the year 1935. It shows that such trustees were as follows:

C. W. Bailey Edward Milligan

R. P. Barbour Victor Roth

R. M. Bissell Benjamin Rush

W. H. Koop C. F. Shallcross

Wilfred Kurth Earnest Sturm

O. E. Lane Harold Warner

F. D. Layton E. W. West

W. Ross McCain

Defendant’s Exhibit 208 (Haid, II, 407-408) shows the

trustees of the association for the year 1936. It shows

that the executives were the same as in 1935, except that

John M. Thomas had succeeded E. W. West.

In order to be a member of this association a man

has to be a chief executive with a rank of president, or

vice president of an American company or with the title

of United States manager or United States assistant man-

ager of a foreign company, due to the fact that so far as

a foreign company is concerned, the United States man-

ager is the chief officer in America. The companies with

which these men are connected must be affiliated with

the major regional organizations of the country, namely:

The Western Underwriters’ Association, the Eastern Un-

derwriters’ Association, the Southeastern Underwriters’

Association, the Board of Fire Underwriters of the Pa-

cific and the National Automobile Underwriters’ Associa-

tion. They have to be what they deem “organization com-

panies” (Erskine II, 355-356.

The purposes of the organization are set forth in the

first paragraph of its articles of association (Defendant’s

Exhibit 204, II, 360). They are as follows:

CoopEeRATIVE ACTIVITIES 27

“(a) To maintain among its members a spirit of

loyalty to obligations, to establish the practice of fair deal-

ing and the observance of ethical principles in compe-

tition with one another, and to support all territorial and

special organizations which shall be listed by the board

of trustees and of which companies represented in the

organization are or shall become members,

“(b) to bring about improvements, reforms, and

economies in the methods and practice of conducting the

business of fire insurance and its allied lines, so that

the methods for making rates may be simpler and more

economical; that rates may be better adapted to the

needs of various localities, classes of business and individ-

ual owners; that forms of coverage better suited to the

changing conditions of business and manufacture

devised; and in general that the operations of compa-

nies may be more efficiently conducted and better service

rendered to the insuring public, and

“(c) to promote the interests of stock insurance com-

panies” (Defendant’s Exhibit 204, II, 360; Erskine, Il, 356-

357). Mr. Erskine believes that this association has never

done anything contrary or in opposition to those limita-

tions upon its powers (Erskine, II, 371).

The membership of the association at — consists

of 38 executives (Haid, II, 374; Erskine, II, 71) who repre-

sent more than one hundred companies (Haid, Il, 374).

Witness does not know how many companies they repre-

sent, but he would judge around 125. Companies in

addition to these 125 were in the Missouri litigation.

great majority of the 137 companies involved in the fed-

eral court litigation were represented by executives in

this association (Erskine, II, 371-372).

Defendant’s Exhibit 209 (II, 408-409) is a list of

companies that were plaintiffs in the Missouri rate cases

in the federal court which were not affiliated with the

Insurance Executives Association. They are the fol-

lowing.

MISSOURI RATE CASE IN THE FEDERAL

WITH THE INSURANCE

British America Assurance Company

Bankers & Shippers Insurance Company

Camden Fire Insurance Association

Chicago Fire & Marine Insurance Co.

28 COOPERATIVE ACTIVITIES

Concordia Fire Insurance Co. of Milwaukee

Dubuque Fire & Marine Insurance Co.

Firemen’s Insurance Company

Girard Fire & Marine Insurance Co.

Globe & Rutgers Fire Insurance Company

Hudson Insurance Company

Importers & Exporters Insurance Company

The Law, Union & Rock Insurance Co., Ltd.

London & Lancashire Insurance Co., Ltd.

Mechanics Insurance Co. of Philadelphia

Merchants Fire Assurance Corporation of New York

Merchants Fire Insurance Company, Denver

Milwaukee Mechanics Insurance Company

National Ben Franklin Fire Insurance Co.

National Reserve Insurance Company

New Jersey Insurance Company

Northern Insurance Company

North River Insurance Company

Orient Insurance Company

Pacific Fire Insurance Company

Patriotic Insurance Company of America

Presidential Fire and Marine Insurance Company

Safeguard Insurance Company

Standard Fire Insurance Company of New Jersey

Stuyvesant Insurance Company

Sun Insurance Office, Ltd.

Superior Fire Insurance Company

Tokio Marine and Fire Insurance Co., Ltd.

Transcontinental Insurance Company

United States Fire Insurance Co.

United States Merchants and Shippers Insurance Co.

Westchester Fire Insurance Company

Western Assurance Company

Potomac Insurance Co. of the District of Columbia

Svea Fire and Life Insurance Company”

The Insurance Executives Association and its paid

officers represented those executives who could have

taken charge of the litigation if they had desired to do

so, or had thought there. was any reason to do so, but

witness would say that .the officers and employees of

CoopeRATIVE ACTIVITIES 29

the Insurance Executives Association did not attempt to

keep track of what was going on in Missouri with the

rate litigation. He does not think that any particular

consideration was given to the Missouri situation. The

Executives Association did not receive the direct reports

as to what was going on. If any report came, it was the

same kind of a report that might have been sent or sub-

mitted to each of the companies. The Insurance Execu-

tives Association did not request any such report. Wit-

ness, the secretary of the association, paid no attention

to the litigation, and he does not believe that the presi-

dent of that association did (Erskine, II, 358).

The association does not have any control over any in-

surance business in any way at all. It does not actually

transact any insurance business whatever. The only con-

trol that it has over any operation of the insurance busi-

ness is suggestions to the so-called regional organization.

They do a lot of talking and hope they can help each other

(Culver, III, 413).

This association did not have anything to do with

the direction of the Missouri rate litigation down to the

spring of 1935 (Haid, II, 375; Erskine, II, 347). It had

no management or control whatever over that litigation

(Culver, III, 413).

It has nothing to do with rates or.litigation anywhere

in the United States. It has never done anything in

connection with rates or rate making or raising or lower

ing rates or looking after lawsuits for any companies. Its

activities do not embrace those things. It uses the long

distance telephone extensively (Erskine, II, 354-355).

Until 1936 witness had had no communication from

Mr. Haid, or ever heard of him having anything to do

with the Missouri litigation (Luce, II, 523). Mr. Haid

was not a member of the Actuarial Committee, and wit-

ness thinks he was not connected in any way with his

company’s litigation or suits (Smart, III, 120). Mr.

Charles R. Street was not a member of this association,

but Mr. Koop, the president of his companies, was a

member (Haid, Il, 374). The association’s connection

with the Subscribers Actuarial Committee is that, in a

general way, this association has contacts with all the

various regional and rating organizations, including the

Western Actuarial Bureau (Haid, II, 375).

30 CoopERATIVE ACTIVITIES

WESTERN INSURANCE BUREAU.

This is an organization, composed of about thirty com-

panies, for the purpose of cooperating in good underwit-

ing practices, dealing with agents (Clark, I, 278; Weiser,

I, 214). Mr. Clark’s companies and the Dubuque were

the only companies in this litigation that were members

of this bureau (Clark, I, 278; Weiser, I, 214).

WESTERN UNDERWRITERS ASSOCIATION.

This is a large organization which represents most

of the companies. These two last named associations con-

form in their agency contracts, with some difference with

respect to commissions (Clark, I, 278). The Western

Underwriters Association is not a rating bureau. It has

nothing whatever to do with rating matters (Henne,

I, 60).

The Governing Committee is the executive commit-

tee of the Western Underwriters Association. It is the

executive committee or the board of directors of the

Western Underwriters Association, which is a trade as-

pool their common efforts on matters that affect stock

fire insurance companies in general (Henne, I, 60).

MISSOURI INSPECTION BUREAU.

The Missouri Inspection Bureau is Paul W. Terry, do-

ing business as the Missouri Inspection Bureau. It is

unincorporated. The purpose of the bureau is maintain-

ing fire insurance rates, filing of schedules for various

companies as an actuarial bureau under the Missouri Rat-

ing Act. It prepares and files general basis schedules,

including basic charges, charges, credits, terms, conditions

and riders, and permits for the doing of fire and tornado

insurance business in the State of Missouri. For its com-

pensation it makes assessments on the members of the

bureau. It has a more or less set overhead expense for

the ordinary routine. Every company is assessed on the

basis of its premiums written in Missouri and that was

the situation in 1935 and 1936. The bureau has been

under Mr. Terry’s direction since October, 1919 (Terry,

Ill, 372-373). A few witnesses mentioned that their com-

panies were members of or subscribers to this bureau

(Duboe, III, 255; Gardner, III, 297; Bowden, II, 92).

CoopPERATIVE ACTIVITIES 31

_ This bureau makes a general assessment every year

which includes excess expenses over the regular bureau

expenses (Terry, III, 384).

SUBSCRIBERS ACTUARIAL COMMITTEE.

1.

Organization, Functions, Meetings, Officers and Members.

The committee was originally formed in 1915 for the

purpose of working out the details of the method of writ-

ing insurance for more than one (1) year at rates reduced

from the annual rates (Hobbs, I, 6). The duties and

obligations of the Committee are not governed by any

Constitution, by-laws or rules, but with the passage of

time it has been given more work because it represents

all interests (Hobbs, I, 7). By common consent the mat-

ter of term rates and fire insurance rates was delegated

through the bureau to this Actuarial Committee (Hobbs,

I, 7). It held meetings regarding this case during the

ncy of the rate suits and the Secretary kept a record

thereof, largely for his guidance as to what transpired

and what needed to be done, so far as he was concerned,

he being the man who handled the details of the work

(Hobbs, I, 7). This committee always meets in Chicago.

Witness has never known of a meeting elsewhere, ex-

cept, perhaps, in White Sulphur sometimes in the spring

or the fall (Koeckert, I, 516). The individual state com-

mittees of managing underwriters for each state to whom

the bureaus looked for advice were abandoned, and the

Subscribers Committee was given the task, in addition

to the term rule, of supervising the activities of the

bureaus with particular reference to their administrative

and financial problems. There was a feeling that by so

doing the entire operations in which the companies had

a common interest could be more economically handled.

As that work developed, the Committee, being the only

one representing the common interests of all companies

subscribing to these bureaus, all problems relating to

16) bureaus were referred to the Committee (Hobbs,

J. V. Parker, now dead (Hobbs, I, 3), was Secretary

(Terry, III, 380; Hobbs, I, 3; Folonie, III, 186) and was

versed in rate making (Folonie, III, 186). He was Mr.

Hobb’s predecessor (Hobbs, I, 3; Folonie, III, 186). Mr.

Parker was also manager of the Western Actuarial

32 CooPERATIVE ACTIVITIES

Bureau, and was consulting actuary to Mr. Terry of the

Missouri Inspection Bureau (Terry, III, 380). Mr. CR

Street was Chairman (Hobbs, I, 4) of the Subscribers’

Actuarial Committee (Hobbs, I, 4). The committee is

elected at the semi-annual meeting of the Subscribers to

the rating bureau. These subscribers voluntarily sub.

scribe to the bureau for their own purposes and are Fire

Insurance Companies, except that there are some casualty

companies belonging to the bureau because of the statu-

tory requirements relating to automobile business (Hobbs,

I, 5). The committee is composed of men representing

all of the different organizations that support the move.

ment (Duboc, III, 283-4).

In the first half of 1935 (Hobbs, I, 4) the Actuarial

ttee was composed of the following executives of

the following groups of companies (Hobbs, I, 5) (See De-

fendants’ Exhibit 320, “II, Insurance Groups” and

Witnesses’’).

CoMPANIES

Group 11

. Commercial Union As-

surance Company, Ltd.

- American Central Insur-

ance Company

. California Insurance

Company

- Commercial Union Fire

Insurance Company

. Palatine Insurance Com-

pany, Ltd.

. Union Assurance Society,

Ltd.

Group 12

. Continental

Company

. American Eagle Fire In-

surance Company

. Fidelity-Phenix Fire In-

surance Company

Insurance

EXECUTIVE

F. W. Koeckert, United

States manager of the

Commercial Union Assur-

ance Company, Ltd., the

Palatine Insurance Com-

pany, Ltd., and the Union

ance Company;

president of the Commer-

cial Fire Insurance Com-

pany and the American

Central Insurance Com-

pany, and manager of the

California Insurance

Company.

E. A. Henne, Vice-President

and manager of Western

department.

CooPERATIVE ACTIVITIES

CoMPANIES

4, First American Fire In-

5.

surance Company

Niagara Fire Insurance

Company

Group 17

. Firemen’s Insurance

Com

pany

. Concordia Fire Insurance

Company

. Girard Fire and Marine

Insurance Company

. Mechanics Insurance

Company of Philadelphia

._ Milwaukee Mechanic’s

Insurance Company

. National Ben Franklin

Fire Insurance Company

. Superior Fire Insurance

Company

Group 31

. National Fire Insurance

Company of Hartford

. Franklin National Insur-

ance Company

. Mechanic’s and Traders

Insurance Company

. Transcontinental Insur-

ance Company

Group 46

. Security Insurance Com-

pany of New Haven

. East and West Insurance

Company

Group 47 ©

. Springfield Fire and Ma-

rine Insurance Company

. Michigan Fire and Ma-

rine Insurance Company

John C. Harding,

EXECUTIVE

Herbert A. Clark, Vice-

president and manager

of Western department.

George H. Bell, manager of

the Western department.

Walter D. Williams, Vice-

president and manager of

the Western department.

Vice-

president and manager of

Western department.

34 COOPERATIVE ACTIVITIES

CoMPANIES EXECUTIVE

3. New England Fire and

Marine Insurance Com-

pany

. Sentinel Fire Insurance

Company

Group 20

- Great American Insur- Charles R. Street, Vice.

ance Company president and manager

- American Alliance Insur- for the Western depart-

ance Company ment except that he was

- County Fire Insurance not manager of the sep.

Company arate Western depart-

. Detroit Fire and Marine ment of the Detroit Fire

Insurance Company and Marine Insurance

. Massachusetts Fire and Company (See “Iv

Marine Insurance Com- Charles R. Street’’).

pany

Mr. H. A. Clark was a member of this committee

(Weiser, I, 216; Cooney, III, 17). He was the Western

Insurance Bureau member of the committee (Weiser, I,

216).

Mr. Williams attended the meetings of the Sub-

scribers Actuarial Committee very infrequently after he

commenced commuting between Rockford and New Haven

every other week, and finally he resigned because he could

not attend (Williams, I, 91). Mr. Koeckert met with the

committee as often as he could. He did not attend all of

the meetings (Koeckert, II, 517).

Neither Mr. Street nor any member of the Subscrib-

ers Actuarial Committee was a lawyer to witness’s knowl-

edge (Weiser, I, 227).

This committee acts only in an advisory capacity

(Henne, I, 23). It handled many other matters for the

companies besides the Missouri litigation (Luce, II, 522).

2.

Management of Rate Litigation.

This committee had charge of this litigation (Hobbs,

I, 7) for all the companies involved; so the activities of

the committee were for all the companies (Clark, I, 250).

It was placed in charge of this litigation at the time that

CoopERATIVE ACTIVITIES 35

the litigation developed (Henne, I, 20). It was handling

the Missouri Impounded Premium case (Weiser, I, 216).

So far as known to the president of the Insurance

Executives Association, the Subscribers Actuarial Com-

mittee directed the Missouri litigation from the time of

its inception (Haid, I, 375).

As Mr. Bissell understands and recalls, the suit was

originally authorized by the chief executives of the com-

Tt was a very important matter (Bissell, II, 454).

This litigation goes back a long way. Mr. Williams

thinks that the genesis of the litigation antedates his

membership on the committee, which began along in

1923, 1924 or 1925, and continued until December, 1937

(Williams, I, 71). He would say, in a very general sort

of a way, that this Actuarial Committee had charge of

the litigation as it has charge of all matters of common

interest, such as litigation (Williams, I, 72).

When Mr. Harding came on the Actuarial Commit-

tee in 1926, the Missouri rate litigation was pending.

Thereafter, the committee directed that litigation through

the attorneys (Harding, I, 280).

Mr. Bell first said that this committee was handling

this litigation for the companies (Bell, I, 137). Later he

said that he never had any telegrams or telephone calls

or letters from the executives of any other company re-

garding the bringing of those suits or the authority to

bring them or the authority to settle them. He never

had any personal, telegraphic, telephonic or written cor-

respondence with the executives of his own company

about bringing those suits in Missouri or about the set-

tlement of them until after it was over (Bell, I, 163).

Neither Mr. Harding nor any member of the commit-

tee, so far as he knows, either by. writing, telegraph,

telephone or personal communication, ever at any time

got word from any insurance company whatever, author-

izing or telling them that they could bind them in this

litigation or the settling of it (Harding, I, 299).

When the Subscribers Actuarial Bureau undertook

to handle the litigation, that was purely a self-appointed

‘and voluntary action on the part of the committee. Nei-

ther witness’s company nor his group of companies nor

any other companies so far as he knows, ever by tele-

phone, telegraph, letter, or personal vérbal request, ever

asked the Actuarial Bureau to handle this litigation (H.

Clark, I, 279).

36 CoopERATIVE ACTIVITIES

3.

Employment of Attorneys.

The attorneys for the companies were the firm of

Hicks and Folonie (Warner, III, 351; Henne, I, 21; Wit

liams, I, 72; Terry, III, 374), and Mr. Homer Berger was

the Kansas City Counsel (Williams, I, 72) or the Kansas

City firm of Morrison, Nugent, Wilder & Berger (Henne,

I, 21). The Committee engaged counsel for all of tu

companies engaged in that litigation (Hobbs, I, 7); namely,

R. J. Folonie and Mr. Homer Berger or Mr. Morrison, or

both (Hobbs, I, 15).

Mr. Folonie employed the firm of Morrison, Nugent,

Wylder & Berger with Mr. Street’s consent (Folonie, III,

160).

When the suits were started, Mr. Folonie employed

local or assistant counsel in Missouri. He first em-

ployed Morrison, Nugent, Wylder & Berger of Kansas

City (Folonie, III, 159). Mr. Folonie went to Kansas

City and made investigations and recommended the em-

ployment of this firm. He secured the approval of the

chairman and, presumably, the committee, to employ

them (Folonie, III, 160).

Thereafter additional counsel were employed from

time to time. Subsequently Honorable W. T. Ragland

of Jefferson City and Igoe, Carroll, Higgs & Keefe were

employed. Their employment was suggested by Mr.

Street. So far as Mr. Folonie knows, they were intimate

friends of Mr. McCormack, a St. Louis agent who recom-

mended the firm and stated that they would be highly

helpful, both because of their political connections and

because they had been friends of Mr. McCormack, who

was and had been president of the State Agents As-

sociation. He believed it would be highly desirable from

the agents’ standpoint if they were employed (Folonie,

III, 160-161).

Witness did not investigate the fitness of the St.

Louis firm, except perhaps to look in a directory or

something of that kind. He thinks he personally inter-

viewed them at the time he employed them. It is mostly

an impression, but Mr. Folonie believes they had been

contacted with reference to employment before he con-

tacted them. Mr. Street said they were very intimate

friends of Mr. McCormack, and that the latter wanted

them employed (Folonie, ITI, 161). The suit had been

CooPpERATIVE ACTIVITIES 37

in progress for some time, as Mr. Folonie recalls, before

either Judge Ragland or the St. Louis firm was employed.

They were employed some years prior to the compromise

agreement and prior to any negotiations resulting in the

compromise which was signed in May, 1935 (Folonie,

Il, 161). In later years possibly some more attorneys

came into the picture (Williams, I, 72). When Mr. Henne

came into the picture in 1932 the attorneys had been em-

ployed (Henne, I, 21).

So far as Mr. Hobbs knows the employment of the

lawyers to represent the companies was verbal. Mr. Fo-

lonie had represented the companies and witness thinks

his practice was very largely with the fire insurance com-

panies for a number of years. In questions of this kind

it is customary to discuss the problems and tell Mr. Fo-

lonie, or whoever the attorney may be, to handle the situa-

tion (Hobbs, I, 19). Mr. Folonie was employed in these

137 federal cases through the same source and by the

- game people. The federal cases may be considered as

one unit through one employment (Folonie, III, 159).

Mr. Henne could not give a direct answer to the

question as to whether the Subscribers Actuarial

Committee hired Hicks and Folonie and Mr. Berger

in the 137 suits in Missouri except this way:

Hicks and Folonie are the retaining counsel of the Sub-

scribers Actuarial Committee, or of the group of com-

panies known as the Western Underwriters Association.

They are counsel for a number of their activities. The

association would quite naturally refer this case to Mr.

Folonie and tell him to go ahead with it. Witness does

not know who told Hicks and Folonie and Mr. Berger to

bring these suits in the names of the 137 companies. He

does not recall that this was ever officially before the

committee for action. He would have to refer to the

records for that. He thinks the Missouri Inspection Bu-

reau sent out a general letter that this litigation was

started. He doesn’t recall its substance, but is sure that

would be the formal procedure (Henne, I, 69-70).

COOPERATION THROUGH COMMITTEES.

The smaller companies do a great deal of following

and very little leading (Casper, I, 116). An executive

of the Phoenix Assurance Company was asked whether,

when he looked back; he wondered why he treated the

whole thing (the insurance. rate settlement) - so. noncha-

lantly. He answered, “Yes and no”; that it is perhaps a

38 COOPERATIVE ACTIVITIES

peculiarity of their business that they frequently have

cases in litigation or loss cases where a number of com-

_ panies are interested, and usually one company is active

in the conduct of the case. It is usually the one that

has the biggest policy, and they rely upon it (Irvine,

II, 214-215). An executive of the National Union Com.

pany said that, knowing Mr. Street as he knew him, it

did not occur to him as at all unusual that Street did not

state what his arrangement was (concerning collection of

funds). The litigation had been running on since 1922,

and the present suit originated about 1929 or 1930. It had

become very involved and if a man attempted to keep

track of all those things he would not have any time

to attend to his daily duties. In his business they were

accustomed to leaving joint action to a committee. This

must necessarily be so. He thinks that the average per-

son, not in this business, fails to realize what a large

proportion of the insurance business is transacted on good

faith. It is not anything unusual when a matter, requir-

ing joint action by a lot of companies, comes up, to place

it in the hands of a committee and forget it, knowing

that ultimately you will get a correct account of any con-

tribution you may be called upon to make. That is an or-

dinary business transaction. They do not think anything

of it. Of necessity the rate litigation had to be deliv-

ered to a committee. He would do whatever the com-

mittee asked him to do. They are accustomed in their

business, on a complicated matter, to have a committee

handle it. They turn it over to a committee and forget

it (Thomas, II, 251-253). They assumed then and still

assume that when a committee representing one hundred

thirty odd companies is involved in litigation where no

individual can ever hope to keep track of it, they will do

just what the committee requests (Thomas, II, 263).

The companies have in their organization a number

of companies, 135, in some organizations 200. It is just

like the Congress of the United States, which is so large

that the main body cannot carry on the necessary functions;

so they appoint committees like the Ways and Means

Committee in Congress and the Rivers and Harbors Com-

mittee. When those committees go into the details of a

proposition and come back after a complete study of it

and recommend it to the main body, in nine cases out of

10 that is adopted the same way. The insurance organiza-

tion is run in the same way. They have a committee

(as the Subscribers Actuarial Committee) which is

CoopPpERATIVE ACTIVITIES 39

charged with handling that litigation. They are in close

touch with it all the time. As president of his group of

companies witness does not pretend to keep up with

the details of that at all. They leave that to “them” (the

committee). When that committee reports to them, and

a man of the standing of Mr. Street, who for thirty-five

or forty years had represented a company successfully, and

they think fairly and honorably in the West, makes a

recommendation to them it would not have made any spe-

cial difference whether he had asked for $5,000.00 or $15,-

000.00. They would have given it to him without question

(McCain, III, 338).

An executive of the Phoenix Assurance Company said

that the real explanation why he gave very, very little

attention to the matter is, he was following the leader.

He was assuming somebody else was checking up and some-

else was watching it to see that everything was

straight and all right. If he had had a big loss and

there had been a dozen, fifteen or twenty policies, but he

had a much bigger policy than anyone else, he surely

would have taken charge of the whole thing, and then he

would have treated everybody pro rata, and they would

kind of looked to him. But if he had had a little policy

and some other had had a great big loss on fire, the

chances are he would have followed the leader and as-

sumed they would have made a settlement if possible.

Their practice in matters of this kind is “what is so

and so doing?” As an outsider looking in, he can see

that the matter calls for some kind of an explanation. It

is the practice in the business. Very seldom that wit-

ness’ company or any other company is interested alone

in litigation, they are not solely interested. There is al-

ways a number of companies interested. There always

has to be somebody to take the responsibility to see that

the thing doesn’t go haywire. It is true that everybody

cannot rely upon somebody else. If it so happened that

witness’ companies had the principal interest, the largest

amount at stake, witness’ company would probably carry

on the case. They would either be checking it very

-closely or would be satisfied that somebody else was

checking it closely, on whose judgment they would be

content to rely but the chances are they would be doing

it themselves. In this particular case they felt they were

following the leader. and somebody else was looking after

“it; because they: always felt that their interest,.as com-

‘pared with some -other companies, was quite. small. (Ir-

‘vine, II, - 216-218.. ome Be

40 COOPERATIVE ACTIVITIES

It is generally conceded that in the insurance busi-

ness it is impossible for stock fire insurance ay ony to

operate entirely independently of each other. hey can

compete for the business, but even though they do so

they have a common interest in rates and in regulations

of various incidents. They have a common interest in

the adjustment of losses on account of the fact that large

risks are usually covered by a number of different com.

panies. It is either placed with a number of different

companies to begin with, or if the whole risk is placed

with one company, it is likely to be reinsured to keep

the risk spread. Regardless of the fact that the business

is competitive, the companies have many things in com-

mon. It is witness’ understanding that the Missouri rate

a was really delegated to a committee of five out

of Chicago. Witness presumes that the chief officers of

the fire insurance companies who brought the suits, if

they desired, could withdraw that control from that com-

mittee (Erskine, IT, 357-358).

When a committee that has charge of a matter in

which a lot of companies have a common interest, and

are looking after it in any way, and they send in a re-

quest for a contribution for expenses, they pay it and just

rely on the committee as making the proper request

(Smart, III, 126).

An executive of the Merchants Fire Insurance

Company who had sent a check to Mr. Street for expenses,

without knowing the expenses were not paid by the

trustees, was asked why he paid the money. He said

that, thinking back on his own reactions at the time, he

would say it was more a matter of psychology than of

any definite information. That psychology was built up

by the fact that the insurance business, since he has been

in it, probably depends on confidence and faith more

than anything else. It has been customary, ever since

he has been in the insurance business, to delegate ques-

tions where several companies are involved to a committee

or to an individual and follow what - j do, particularly,

say, in loss adjustments, the handling of delinquent agen-

cies, and other things which come a It has been built

over a long period of years, and is done constantly.

itness’ own thought and reaction was possibly due

simply to confidence in that manner of doing business and

the fact that they are in a very, iy, Sane business

and cannot investigate everything. ey have to dele-

gate matters to other people. In the case of this commit-

tee, they had handled the thing for years, and witness

CooPpERATIVE ACTIVITIES 41

had great confidence in Mr. Street and his ability. That

is about where his reasoning on the thing stopped (Gard-

ner, Il, 311).

If the Stuyvesant Insurance Company turns any liti-

gation over to a committee, it follows that committee

without argument (Siedel, II, 32). It has never with-

drawn from any committee (Siedel, II, 4).

So many things are handled by committees. There

may be a loss and maybe twenty-five companies involved.

Not every company would have its own representatives.

they have so many. There are committees, national

board; all that kind of things. Witness is not in the

underwriting end. He is in the financial end of it and

he just sees the book end. They have requests for ex-

penses, either in full or very frequently partial expenses

on things of that kind that are going through being set-

tled in committees, and in this case it struck witness that

this was one of those things that would probably “be

further, es oe

An executive of the Royal Insurance Company stated

that he absolutely considered the Missouri rate litigation

entirely out of his hands; that whatever its technical posi-

tion might be with the individual companies, when it

came to this group effort, this kind of combined effort of

137 companies, the actual authority had to be vested

someplace else (Warner, Ill, 371).

There are so many things handled by committees, na-

tional board, and there are other boards and things of

that kind all over. They meet, they may take action on

rates, maybe losses, claims maybe, on various things of

that kind. There are so many companies on those things

they have to have committees. There is perhaps a

board, we will say New England Insurance Exchange As-

sociation. There is a committee to act on certain matters

that come up. One of witness’s companies—perhaps one

of another New York company or something of that kind—

business where many companies are involved instead of

one. They do not duplicate each other’s work. It has

been done for years. They try to save expenses on that.

That sort of thing is very common. For forty years that

42 CoopeRATIVE ACTIVITIES

witness has been in the insurance business. there have

been committee matters and committee matters (C. P.

Smith, III, 37-38).

Where a number of fire insurance companies have a

common interest in some transaction they will appoint a

small committee to handle it on behalf of all the companies

interested. When you have a committee handle some.

thing for a large number of companies in which you are, as

one of the companies, interested, you accept something

from that committee without investigating it because you

know that in the end they will give you a full accounting

of everything that is done (C. P. Smith, III, 39).

Cuar.es R. STREET

IV.

CHARLES R. STREET.

Mr. Street lived in Chicago (Vreeland, II, 463; Koop, I,

394). He was chairman of the Subscribers Actuarial Com-

mittee (Dosdall, I, 169; Weigel, III, 12; Bell, I, 137; Weiser,

I, 226; McCain, III, 332; McKown, I, 166; Brady, I, 372;

Lerch, I, 309; Kurth, I, 437; Vreeland, II, 463; Clark, II,

416; Folonie, III, 160; Casper, II, 873) and vice-president

of the Great American (Clark, Il, 416; Waldron, I, 211;

Hobbs, I, 5; Brady, I, 372) and vice-president of all of the

companies in the Great American group (Waldron, I, 211;

Koop, I, 394-395), and Western manager of the Great

American (Clark, II, 416) and all of the companies be-

longing to that group, except the Detroit Fire and Marine

and the American National Insurance Companies. But

he was regarded as the dominating factor in the Western

territory and the other officers would follow his direc-

tions (Koop, I, 394-395).

The Companies of which he was vice-president were:

The Great American Insurance Company,

_ The American Alliance Insurance Company,

. The County Fire Insurance Company,

4. The Detroit Fire and Marine Insurance Com-

pany,

5. The Massachusetts Fire and Marine Insurance

Company,

6. The Rochester American Insurance Company,

(Koop, I, 394-395).

He represented all of the Companies in the group

in the Missouri rate litigation (Koop, I, 395).

Mr. Street conducted the negotiations in regard to

the compromise (Clark, I, 250). He was known to be in

charge of the Missouri rate litigation on behalf of the

Subscriber’s Committee. Everyone recognized that

and was glad to have him attend to it (Kurth, I, 425).

This litigation had gone over the term of three presidents

of the Home Insurance Company before Mr. Kurth. Mr.:

Street was known to be in charge of the Missouri rate

litigation on behalf of the Subscribers Committee in

Chicago. Everyone recognized that he was in charge of

44 CHARLES R. STREET

it and was glad to have him attend to it, because it was

getting on a lot of people’s nerves, the length of time

it had been going on (Kurth, I, 424-425). He was the

member of the committee that did most of the work and

most of the supervision of the litigation (Hobbs, I, 16),

He handled the whole thing (Culver, III, 415).

The Subscribers Actuarial Committee certainly did

give Mr. Street sole authority to negotiate a compromise

settlement of the litigation, and it put no restrictions on

his authority to witness’ recollection (Bell, I, 138),

When Street suggested a course of action, he being the

key man in the Missouri litigation, his requests were

acted upon (Kurth, I, 438).

' A member. of the Subscribers Committee, in reply

to an inquiry whether Mr. Street was in closer con-

nection with the litigation than the other members, re-

plied “He was not only in close connection, he was the

sole connection” (Harding, I, 280). The Subscribers

Committee handled the whole transaction, that is, Street

did (Safford, III, 67).

Mr. Street’s character and personality made him an

outstanding man (Nourse, II, 123). He occupied a most

unusual position in the business (Bell, I, 158). Probably

there was not another character like him in the busi-

ness (Koeckert, I, 523). Witness always admired him

(Moore, I, 540). Witness has been in the business 50

years, and to his knowledge, there has never in the his-

tory of the business been a man that occupied the same

position that Mr. Street did (Bell, I, 158).

Witness only met Mr. Street once or twice, but by

reputation witness thought he was a splendid, reputable

fellow and that witness’ companies were in good hands

(Tamblyn, II, 303). In 1935 and 1936 Mr. Street was

apparently held in high regard for honesty, integrity and

character by the high executives of the companies in-

volved in the federal litigation and by the fire insurance

fraternity generally (Folonie, III, 220). There was no

reason in the world to question his word. His reputation

was very good, highly satisfactory (Weigel, III, 12). Wit-

ness regarded him as a strictly honorable and honest man

(Lerch, I, 313). He was looked upon as one of the

most honorable, capable men that was ever in the fire

insurance business in this country (Bell, I, 158). No one

stood higher in respect, integrity, ability, honorable prac-

tices and willingness to work (Layton, III, 83). Witness

had known Mr. Street for thirty. or- thirty-five years and

CHARLES R. STREET 45

had never known him to do anything dishonest or dis-

honorable, and Mr. Street’s reputation bore out this opin-

ion (Lerch, I, 314). Witness thinks that, until these

developments came out about Mr. O’Malley, Mr. Street

had, for thirty or forty years, stood in the estimation of

the fire insurance companies and their executive officials

generally, without exception, in the highest regard as a

man of character, integrity, ability and great experience

in the fire insurance business; although there is, per-

haps, a number of people who did not like him personally

because he was a hard-boiled individual. He certainly

did possess witness’ absolute confidence so far as in-

tegrity, character and honesty were concerned. Witness

believes that he had the same of the entire fire insur-

ance fraternity (Safford, III, 73). Witness had im-

plicit confidence in him (Moore, I, 540). They all had

confidence in him (Dosdall, I, 187, 195). They had every

confidence in him (Kurth, I, 425). He had witness’ un-

bounded, absolute, unconditional confidence in all things.

Witness thinks he knew Mr. Street about twenty years,

up until the time he died. He absolutely had full con-

fidence in Mr. Street (Culver, III, 402). Witness held

him in the greatest esteem (Koeckert, I, 522). He was

very prominent in the Western Underwriters (Remak, II,

221). The Actuarial Committee permitted Mr. Street to

handle matters, only making formal reports to the com-

mittee, because they had the utmost confidence in him,

and because one man can do a better job in negotiations

and they thought Mr. Street was the man best qualified

for the job. It was well handled and witness was satis-

fied to leave it (Harding, I, 280-281).

Mr. Street felt that he knew more about certain

things than anyone else; that he knew more about the

Western business than anybody in the organization (Koop,

I, 406). Whenever anything was discussed in relation to

Missouri, he was the one who always discussed it (Nourse,

II, 123). He was a man who had a pretty fair opinion

of himself (Bissell, II, 445). He thought fairly well of

himself (McCain, III, 333).

It was his habit to grasp power (Bell, 1, 158).

Mr. Williams would say that Mr. Street was negotiating

the settlement of this litigation as chairman of the com-

mittee. In answer to the question, how it got out of

the committee’s hands and into Mr. Street’s hands, he

said he could not answer that question; that if you know

Mr. Street the question would answer itself. Mr. Street

46 CHARLES R. STREET

was an individualist. The committee did not surrender

anything, but Mr. Street was a man that did not consult

people; he just went uhead and did things (Williams, |,

73).

He was the sort of man who, if you appointed him

chairman of a committee, he was the committee (Nourse,

II, 123; Bissell, II, 445; Koeckert, I, 523). He was the

Actuarial Committee (Safford, III, 67). He had a yen for

that sort of thing (Harding, I, 280). Witness absolutely

knew that if Mr. Street was chairman of the Actuarial

Committee and the litigation was turned over to that

committee, Mr. Street would take charge of it (Nourse,

II, 123). He had a disposition in the committee to kind

of take things in his own hands and run them his own

way, and anybody that opposed him came out second

best (Bell, I, 158).

He was a man of few words (Warner, III, 354) he

did not very well brook cross-examination about what he

was doing (Koeckert, I, 522). He did not like to be

asked things, nor want to tell them; he would not tell

them (Koeckert, I, 522). He was not inclined to give any

information or make any explanation of anything (Lerch,

I, 313). He was a man that because of his high standing

in the business, because of his temperament and personal-

ity, was not inclined to divulge his plans in detail (Layton,

Ill, 77). He did not report to the Actuarial Committee;

he went through the form of doing so, but it was very

“formy” (Harding, I, 280). One hesitated to ask him any

questions, because you probably would not get the an-

swer (Warner, III, 354). Often they did not suggest

things to him because they felt, if they did, they would

get no answer (Koeckert, I, 522). When asked if he in-

quired of Mr. Street what the expenses of the litigation

were, witness said, “You don’t know Mr. Street * * * I

knew him” (Lerch, I, 313). It is probably true that the

Actuarial Committee did not ask Mr. Street what he was

doing because they did not believe he would tell if they

did (Harding, I, 280-281). If you undertook to say, “Now

just why are you doing this, Mr. Street, may I ask” —“You

leave that to me” (Koeckert, I, 523). Witness knew it

would be useless to ask Mr. Street anything about his

handling of the settlement. If he had, witness thinks Mr.

Street would have said, “I am in charge of this affair and

this is'money that is needed for litigation in Missouri”

(Lerch, I, 313-314). It is about right, that Mr. Street

would not give it if you did, and: then he would feel

CHARLES R. STREET 47

so hurt. He turned on witness on one occasion, not about

Missouri, and said ‘but since when don’t you trust me.”

Witness told Mr. Street he did trust him, that every

man in the business that he thought a lot of, trusted

him. The trouble was that Mr. Street had gotten to the

place where he had not trusted them; but they did not

go into anything that he was handling (Koeckert, I, 524).

Witness does not know that Mr. Street would not have

told him what he was doing if witness had asked, but

witness did not ask him because witness knew Mr. Street

was in charge of the litigation (Lerch, I, 314).

He was a man with very strong principles (Bell, 1,

157). He was a very impulsive, very blunt individual.

He stated exactly what he thought, and he did not mince

words about anything he had to say (Haid, II, 398).

445). He was that kind of dominating character that

never made witness feel badly, although at the moment

he was riding right over witness, who, as a boy, probably

tried to resist as a boy might; but you might as well re-

sist a stone wall (Moore, I, 541). His was the dominating

mind on all subjects connected with the litigation. He

had a dominating personality (Nourse, II, 123). He was a

sort of a Hitler, you might say. He dominated everything

with which he was connected (Bell, I, 158). He was a

very positive character, quite strong in his opinions; but

as a rule, his opinions were pretty well founded (Layton,

Ill, 83). He rode over everybody (Moore, I, 540). The

older he got the more arbitrary he became (Koeckert, I,

523). Mr. Koeckert was sorry to see some of these ar-

bitrary actions. He often wished that Mr. Street had

retired earlier than he did, because in later years Mr.

ie am saw this change coming over him (Koeckert,

I, 523).

It was suggested to witness that if a man is naturally

secretive, naturally given to not taking people into his

confidence, it does not usually work out that he can hold

their confidence. Witness answered that Mr. Street had

risen to a high point in their business; a point where the

work he had done, the time and effort he had put into it,

and the sincerity of purpose, that everyone just held him

in that great respect so that you would not, or at least

witness did not, ever think of asking him why he was

doing so and so—why he was doing it this way (Koeckert,

I, 523). The best explanation Mr. Koeckert can give of

the way that all acted with Mr. Street is that that is

the way it grew to be (Koeckert, I, 524).

48 CHARLES R. STREET

“Q. Of course he had risen to a high position in the

insurance world. But some of the rest of you, you for

instance, in fact at that time, were holding a higher

position in the insurance world than he was, and so was

Mr. Kurth and so was Paul Haid, and so were other men

higher in the insurance world than he?

A. Right.

Q. The truth is he had taken a step back. He had

when he came East, he had not quite made it, and you

say that he was secretive, that he would not take people

into his confidence. It seems strange to me that a man

who would not take other people into his confidence could

hold their confidence. Can you explain it, or is it just

one of those things?

A. I think that is the answer, just one of those

things. I can’t imagine any man who labored with him

or tried to take ar interest in the business, ever wanting

to approach Mz. Street for an explanation” (Koeckert,

I, 523-524).

Mr. Street died on February 1, 1938 (Folonie, Ill,

185; Kurth, I, 451; Koop, I, 407; Powrie, I, 134; Williams,

He was quite positive in his actions (Bissell, I],

I, 96; Thomas, II, 254). He was a pretty sick man, suf-

fering from cancer, but lived nearly two years after he

made the collection to furnish the 5 per cent (Koop, I,

420).

Witness thinks he can give a very fair presentation

of the esteem in which Mr. Street was held by the life

insurance fraternity generally. He was unique. Witness

has never met another man like him. Mr. Street was

the outstanding manager and executive in the midwest.

Apparently he had only two interests, two subjects in

which he took pride; one was the business itself, and the

other was the midwest. Witness thinks he had a sneak-

ing contempt for all who had anything to do with the busi-

ness in the east. He used to refer to them as the “wise

men of the East” which witness Suspected he said with

a grain of salt, with a mental reservation. Witness thinks

he was the hardest working man he has ever known in

the business, reputed to get down to his office between

7:30 and 8:00 o’clock and left at dark. Witness thinks

that during the time he knew Mr. ‘Street, he must have

devoted 25 per cent or 30 per cent of his time to the

general activities of the business, not to the selfish in-

térests of his own company. He loved the business. He

CHARLES R. STREET 49

was proud of the part he took in it. He had a magnifi-

cent record in connection with all activities that he con-

ducted, was chairman of a great many committees, and

as chairman he did the work and did it with such a fine

average of performance that he came to be regarded by

all who had acquaintance with him as being, as the French

would say, “without fear and without reproach.”

Question. He was the Chevalier Bayard in other

words?

Answer. “Well, in rough exterior, very blunt, very;

stepped on your toes if you got them in his way; but none

of us ever questioned his integrity.”

Witness attended a fiftieth anniversary party that

was given in Mr. Street’s honor about one-half dozen years

ago, and the evidence there of the esteem in which he

was held was quite overwhelming. Witness thinks that

the opinion as expressed’ was the opinion generally en-

tertained by the presidents and other high executives of

the fire insurance companies involved in the Missouri

litigation. You will find an occasional man who has per-

mitted personal prejudice to obscure his impartial judg-

ment, but witness thinks that what he has said about him

is very generally true (Long, III, 108-110).

50 INSTITUTION OF LITIGATION

V.

INSTITUTION AND PROGRESS OF THE

LITIGATION.

INSTITUTION, NATURE AND CONTROL OF THE SUITs.

The Missouri fire rate litigation began in 1922 (Terry,

III, 373). In January, 1922, there was an order of the

Superintendent of Insurance making a reduction of 15

per cent. A bill to enjoin it was filed in January or

February, 1922, dismissed in the early months of that

year, the temporary injunction order was dissolved, the

rate order was withdrawn, and a written Stipulation was

made that the Superintendent would have a new rate

order with a hearing preliminary. to it, having had none

as to that first rate order. That stipulation was entered

into by a number of lawyers, including Mr. Folonie’s

partner, Mr. Hicks. Mr. Folonie did not participate in

that first case. In October, 1922, after some kind of a

hearing, another rate order of 10 per cent reduction was

entered. Mr. Folonie counseled a little in that but took

no active part in it. He went into a hospital that win-

ter about the time the order was entered (Folonie, III,

207). He entered actively into the lawsuit and the series

of litigation in June, 1923 (Folonie, III, 157, 207). The

companies brought suit in 1922. It was a defense by the

companies against the 10 per cent rate reduction ordered

by Superintendent Hyde (Terry, III, 373, 374). The Sub-

scribers Actuarial Committee, in conjunction with P.

W. Terry, Manager of the Missouri Inspection Bureau,

was responsible in initiating and instituting these suits

(Folonie, III, 157). Mr. Terry cannot definitely tell who

recommended the suits or finally determined upon their

institution (Terry, III, 374). When Mr. Folonie actively

entered the litigation in 1923 he was instructed by Mr.

Ralph Ives, the chairman of the committee ond predeces-

sor of Mr. Street, that the objective of the litigation was

to secure a declaration of the underlying methods of set-

ting up a proper account with the State as to profit and

loss; that their predicate was earned premiums as income

and incurred loss and expense as outgo as the principal

items. The attitude of the state was that it was to be

primarily written premiums and paid losses and expenses.

Mr. Folonie was advised that the money involved was

INSTITUTION OF LITIGATION 51

entirely secondary to establishing that principle, and to

take it to the highest court he could take it, preferably

to the Supreme Court of the United States, to have that

accounting principle settled because it made trouble in

every state (Folonie, III, 207-208).

Thereafter these 16 2-3 per cent suits were brought

(Terry, III, 374). They were commenced in May, 1930

(Folonie, III, 157). Witness recommended that they be

prought after conferring with Mr. Folonie (Terry, IU,

374). He conferred with Mr. Folonie about them and

they agreed to bring the suits (Terry, III, 375). Mr.

Folonie was in consultation in the preparation of the fil-

ings precedent to any litigation. The filings were the

applications and supporting data filed by the Superin-

tendent of Insurance upon which an increase in rates was

based (Folonie, III, 157). Mr. Terry made certain filings

with the Insurance Department in December, 1929, for

the purpose of securing an increase in the insurance rates.

From time to time the effective date of the increase was

postponed until June 1, 1930. Previous to that date, after

consultation with Mr. Folonie, Mr. Terry, representing

all stock fire insurance companies, directed Mr. Folonie

to sustain that filing, if possible (Terry, III, 375-376).

Mr. Folonie brought the suits (Terry, Ill, 375). Mr.

Terry, of the Missouri Inspection Bureau, had charge of

filing the papers in connection with the 16 2-3 per cent

rate increase. He was the filing agent. Mr. Folonie

went in advance and saw what he was doing with them.

They were carried by Mr. Terry to the office of the Su-

perintendent of Insurance and placed upon his desk. They

constituted applications for an’increase in rates, supported

by figures of the companies and the’ annual statements,

and computed profit and loss, to show that. the present

rates weré inadequate. Mr. Folonie would say they were

tabulated on hundreds of very large accounting sheets.

There was a great big stack of papers; company by com-

pany. The facts relied upon in filing these papers were

their five years’ experience prior to 1929, the five years

immediately preceding that as shown by their books and

records and their filings in the Insurance Department.

Their construction of them was- that they showed that

the rates, as collected, resulted in a loss, which. did not

leave more than a reasonable profit if the. companies got

oe te for which they were filing (Folonie, II,

52 INSTITUTION oF LITIGATION

After they were started the responsibility was up to

The question as

ught depended

Terry con-

what he

erry has al-

g the legal aspect of it,

the suits. They were not

name of the Missouri Inspection Bu-

name of the individual companies. A

titution matters arising

The suits in the federal

and (3) A suit in the Circuit Court of Cole

In addition

Mr. Folonie

of the litigation

75 or 76 companies

gation and not in-

. the companies that

in dropped out, and some of them were

in the federal: court, and made parties in the

state court. The number changed, but it was 75, more

or less (Folonie, III, 212).

LIfT OF COMPANION CASES NOW PENDING IN

THIS COURT.

Defendant’s Exhibit 1 (I, 8-15) is a list of the cases

that were pending in the federal court at the time the

final decrees were entered February 1, 1936. Each com-

pany is an individual plaintiff, except that in case No.

383 the plaintiffs are The Phoenix Insurance Company,

The Minneapolis Fire and Marine Insurance Company

and Central States Insurance Company, and The Phoenix

Insurance Company only is named as plaintiff in the ex-

hibit.. Said exhibit is as follows:

INSTITUTION OF LITIGATION 53

“Court

Number

271 Agricultural Insurance

Company vs. Ray B. Lucas et al.

973 Aetna Insurance Company vs. “

274 The Alliance Insurance

Company vs. “

275 American Alliance Insur-

ance Company “= *

276 American Central Insur-

ance Company 6"

277 American Eagle Fire In-

surance Company = *

279 Americar. Union Insur-

ance Company of New

York = *

280 Atlas Assurance Com-

pany, Ltd. vs.

281 Automobile Insurance

Company of Hartford,

Connecticut vs.

282 Bankers and Shippers In-

surance Company vs.

283 Boston Insurance Com-

pany vs.

284 British America Assur-

ance Company vs.

286 Caledonian Insurance

Company vs.

288 California Insurance Com-

pany vs.

289 Camden Fire Insurance

Association vs.

292 Chicago Fire and Marine

Insurance Company vs.

293 Citizens Insurance Com-

pany =

294 City of New York Insur- .

ance Company —_ ”

295 Columbia Insurance Com-

pany (New Jersey) =

296 Columbia Fire Insurance

Company vs.

54 INSTITUTION OF LITIGATION

297 Commerce Insurance

Company vs. Ray B. Lucas, et al,

298 Commercial Union Assur-

ance Company, Ltd. = *

299 Commercial Union Fire

Ins. Co. vs, “

301 Concordia Fire Insurance

Company of Milwaukee vs. “

302 Connecticut Fire Insur-

ance Company vs. “

303 Continental Insurance

Company “— *

304 County Fire Insurance

Company of Phila-

delphia - “Se

305 Detroit Fire and Marine

Insurance Company _

306 Dubuque Fire and Ma-

rine Insurance Com-

pany ie

307 The Eagle Fire Company

of New York >

308 Eagle Star and British

Dominions Insurance

Company =

309 East and West Insurance

Company —*

310 Equitable Fire and Ma-

rine Insurance Com-

pany ve ™

312 Federal Union Insurance

Company — *

313 Fidelity Phenix Fire In-

surance Company = *

314 Fire Association of Phila-

delphia =.*

315 Fireman’s Fund Insur-

ance Company = *

316 Firemen’s Insurance

Company ie

Court

Number

317

318

319

320

321

322

323

324

325

326

327

328

329

330

331

332

334

335

336

First American Fire In-

surance Company

Franklin Fire Insurance

Company of Phila-

delphia

Franklin National Insur-

ance Company

Girard Fire and Marine

Insurance Company

Glens Falls Insurance

Company

Globe and Rutgers Fire

Insurance Company

Granite State Fire Insur-

ance Company

Great American Insur-

ance Company

Guaranty Fire Insurance

Company of Providence

The Hanover Fire Insur-

ance Company

Hartford Fire Insurance

Company

The Home Insurance

Company

Home Fire and Marine In-

surance Company

Hudson Insurance Com-

pany

Imperial Assurance Com-

pany

Importers and Exporters

Insurance Company

Insurance Company of

North America

Insurance Company of

the State of Pennsyl-

vania

The Law Union and Rock

Insurance Company,

Ltd.

INSTITUTION OF LITIGATION

vs. Ray B. Lucas, et al.

vs.

vs.

vs.

vs.

vs.

Vs.

vs.

Vs.

vs.

vs.

Vs.

vs.

vs.

vs.

Vs.

vs.

Vs.

“ec

“

‘ec

56 INSTITUTION oF LITIGATION

338 Liverpool and London and

Globe Insurance Com-

pany, Ltd. vs. Ray B. Lucas, et al.

339 The London Assurance

Corporation >

340 London and Lancashire

Insurance Company,

Ltd. vs. “

341 London and Provincial

Marine and General

Ins. Co., Ltd. = *

342 London and Scottish As-

surance Corporation,

Ltd. =“ *

343 Lumbermen’s Insurance

Company = *

344 Manhattan Fire and Ma-

rine Insurance Com-

pany =-.*

345 Massachusetts Fire and

Marine Insurance Com-

pany = =

346 Mechanics Insurance

Company of Philadel-

phia vw *

347 Merchants Insurance

Company vs. *

348 Merchants Fire Assur-

ance Corporation of

New York =

_ 349 Merchants Fire Insurance

Company “= *

350 Mercury Insurance Com-

pany 2 ™

351 Michigan Fire and Ma-

rine Insurance Com-

pany vs. “

352 Milwaukee Mechanics In-

surance Company = *

Court

Number

355

356

357

358

359

361

362

363

364

366

367

369

370

371

372

374

375

354 National Ben Franklin

Fire Insurance Com-

pany

National Fire Insurance

Company of Hartford

National Liberty Insur-

ance Company

America

National Reserve Insur-

ance Company

National Security Fire In-

surance Company

National Union Fire In-

surance Company

The Newark Fire Insur-

ance Company

New England Fire Insur-

ance Company

New Hampshire Fire In-

surance Company

New Jersey Insurance

Company

New York Underwriters

Insurance Company

Niagara Fire Insurance

Company

The Northern Assurance

Company, Ltd.

Northern Insurance Com-

pany

North River Insurance

Company

Northwestern Fire and

Marine Insurance Com-

pany

Norwich Union Fire In-

surance Society, Ltd.

Old Colony Insurance

Company

vs. Ray B. Lucas, et al.

vs.

vs.

vs.

LINSTITUTION_OF_ LITIGATION

“

“

“

INSTITUTION OF LITIGATION

376 Orient Insurance Com-

pany vs. Ray B. Lucas, et al.

377 Pacific Fire Insurance

Company =“

378 Palatine Insurance Com-

pany, Ltd. vs. “

379 Patriotic Insurance Com-

pany of America = *

381 Philadelphia Fire and

Marine Insurance Com-

pany vs. “

382 Phoenix Assurance Com-

pany, Ltd. a.

383 The Phoenix Insurance

Company et al. vs. “

385 Presidential Fire and Ma-

rine Insurance Com-

pany —

386 Providence Washington

Insurance Company —-*

387 Provident Fire Insur-

ance Company ~~“ *

389 Queen Insurance Com-

pany of America vs. “

390 Reliance Insurance Com-

pany of Philadelphia vs. “

391 Rhode Island Insurance

Company "“*

392 Royal Exchange Assur-

ance =”

393 Royal Insurance Com-

pany, Ltd. ~~

394 Safeguard Insurance

Company —*

395 St. Paul Fire and Marine

Insurance Company —

396 Scottish Union and Na-

tional Insurance Com-

pany ~~ *

Court

Number

398

399

400

401

402

403

410

411

412

413

414

397 Security Insurance Com-

pany of New Haven

Sentinel Fire Insurance

Company

Springfield Fire and Ma-

rine Insurance Com-

pany

Standard Fire Insurance

Company of Connecti-

cut

Standard Fire Insurance

Company of New Jersey

Star Insurance Company

of America

The State Assurance Com-

pany, Ltd.

Stuyvesant Insurance

Company

Sun Insurance Office,

Ltd.

Superior Fire Insurance

Company

Svea Fire and Life Insur-

ance Company

Tokio Marine and Fire

Insurance Company,

Ltd.

Transcontinental - Insur-

ance Company

The Travelers Fire In-

surance Company

Twin City Fire Insur-

ance Company

Union Assurance Society,

Ltd.

Union Fire Insurance

Company

United Firemen’s Insur-

ance Company of Phila-

delphia

INSTITUTION OF LITIGATION

vs. Ray B. Lucas, et al.

vs.

vs.

VS.

VS.

vs.

vs.

vs.

Vs.

Vs.

Vs.

vs.

vs.

6“

“ce

“cc

“cc

sé

“cc

“

60 INSTITUTION oF LITIGATION

415 United States Fire In-

surance Co. vs. Ray B. Lucas, et al.

416 United States Merchants

and Shippers Insurance

Company 2 *

418 Victory Insurance Com-

pany vs. “

419 Westchester Fire Insur-

ance Company i

420 Western Assurance Com-

pany vs. “*

422 The World Fire and Ma-

rine Insurance Com-

pany vs.

423 Yorkshire Insurance

Company, Ltd. “= *

425 Mechanics and Traders

Insurance Company’ vs. “

426 Potomac Insurance Com-

pany of the District of

Columbia” “ *

STATE COURT LITIGATION DECREES IN STATE COURT

RESTITUTION CASES.

In the early part of 1935, D. F. Calfee, referee, in

the state court case, had found in substance that the

com es were entitled to two thirds of their increase

on the fire class of business and all of their increase on

the tornado class; and the case was pending on exceptions

to that report by both sides (Folonie, III, 212).

In December, 1935, there was a decree rendered in

the restitution case in which the court, not at the instance

of the insurance companies’ attorneys, incorporated $200,-

000.00 of the judgment against those companies in addi-

tion to the amounts which it was found they were en-

titled to restore or bound to restore. The court distrib-

uted that pro rata over all the companies in its decree,

and Mr. Folonie saw Mr. O’Malley repeatedly over a

short period of time after that to get Mr. O’Malley to spe-

cifically agree that he would not demand this $200,000.00

which they had ee he was to have; in addition

to what the court already collected. Mr. O’Malley

INSTITUTION OF LITIGATION 61

finally agreed that that was correct; so that the proceeds

would inure to him, and he should not exact the $200,-

000.00 all over again, as agreed in the written contract

(Folonie, III, 192).

The fact that there was not a complete identity made

Mr. Folonie feel that there might be a claim that it was

in addition to the $200,000.00. In fact, it was an identical

item. There was an exact identity of parties in the res-

titution case in which the judgment was rendered, but

the $200,000.00 that the court incorporated into the judg-

ment was not identified as being the $200,000.00 that they

had stipulated in writing they would pay to the Super-

intendent to reimburse him for expense in that litigation.

The parties in the new and old litigation differed (Folonie,

III, 192).

Plaintiff’s Exhibit 330 (IV, 474-511) is a certified

copy of a final judgment entered by the Circuit Court of

Cole County, Missouri, December, 1935, in the case of

Aetna Insurance Company et al. v. R. E. O’Malley, (III,

473-474). The judgment recites that the matter came on

to be heard on defendant’s motion for restitution, asking

restitution for amounts asserted to have been collected

by the plaintiff in excess of lawful and legal rates upon

fire, lightning, hail, and windstorm insurance transacted

by the plaintiffs in the State of Missouri between No-

vember 15, 1922, and August 8, 1929, and also upon the

report of the commissioners and custodians appointed by

the court and the exceptions to the report (III, 474).

It recites that the court finds that each of the plaintiffs

presented and filed its full and complete account with

the commissioners and custodians showing the _ total

amount of excess premiums by them respectively collected

in excess of that justified by the order of the Superin-

tendent of Insurance of October 9, 1922, and the amount

in its hands remaining unrestored to policyholders, and

that they are truly and correctly accounted for, reported,

and are in the respective amounts therein set out.

The decree then sets out opposite the name of each

of the plaintiffs in said case the total excess collections

as to each of said companies, and the amount not refunded

to policyholders by each of said companies, and the total

of collections by all the companies was $12,354,747.96,

and that the total of the amounts not refunded to policy-

holders was $1,613,402.81 (III, 474-481).

The decree then recites that, subsequent to making

such full, true, and complete accounts, certain of the

62 INSTITUTION OF LITIGATION

plaintiffs therein named made payments to the commis-

sioners of amounts in addition to those contained in their

accounts creative of an additional liability for restitution

as to them, and that such plaintiffs had made corrections

in their accounts. The names of such last mentioned

plaintiffs were then set out, with amounts of such ad-

ditional payments made by them set opposite their

names, and it is recited that the total of such additional

payments amounted to $1,436.31 (III, 481-482).

The decree then recites that the interest properly to

be calculated against the sum owing by respective plain-

tiffs, as the court had by its order of December 14, 1934

directed, is, as respects such plaintiffs respectively, in

amounts as follows:

The name of each plaintiff is then set out, such

amount of interest as to each company is set opposite

each name, and it is recited that the total amount of

such interest is $857,688.09 (III, 482-487).

The decree then recites that the court further finds

that certain plaintiffs therein next enumerated addition-

ally owe and ought to pay amounts owing as restitution

for which they assert they issued outstanding checks and

drafts and which the court finds is subject to restitution,

notwithstanding such additional amounts and such

checks and drafts are outstanding, which are found to be

as follows:

Then follows the name of each plaintiff and opposite

the name of each is the amount so found for which such

companies had issued outstanding checks and drafts, and

there is a recitation that the total thereof is $48,492.63

(III, 488-490).

The decree then recites that, in addition, the plain-

tiffs and the Patriotic Insurance Company ought justly

to further pay the sum of $200,000.00 which they had

agreed to pay to the Superintendent of Insurance, and

that in addition to the specific sums found owing as resti-

tution, the sum of $199,618.22 of said $200,000.00 should,

by the plaintiffs in the aggregate, be paid as additional

restitution, which said sum is allocated to the respec-

tive plaintiffs (III, 490), in the proportion that excess

' collections of each bears to the total excess collections

of all remaining plaintiffs, which said distribution of

$199,618.23 is in the respective sums as follows: (The

sum of $381.77 to be aSsessed against the Patriotic In-

surance Company in a separate suit for restitution pend-

INSTITUTION OF LITIGATION 63

ing in such a court.) Then follows the name of each of

the plaintiffs and opposite each name appears the amount

assignable to each out of $200,000.00 (III, 490-496).

The decree then recites that the plaintiffs have re-

spectively paid to the commissioners and custodians sums

on account of restitution above recited for which they are

entitled to credit in the amounts hereinafter respectively

recited, namely:

Then follows the name of each plaintiff and opposite

the name of each appears the amount so paid to the com-

missioners and custodians (III, 496-502).

The decree then recites that the court finds that the

Chicago Fire and Marine Insurance Company and the

Fidelity Union Fire Insurance Company, plaintiffs there-

in, are insolvent and that any judgment against them

would be uncollectible; that therefore the sums assigned

against them in the sum of $200,000.00 are assigned

against the remaining plaintiffs and that the Chicago

Fire and Marine Insurance Company and Fidelity Union

Fire Insurance Company are dismissed from the proceed-

ing (III, 502-503).

The decree then recites that respective plaintiffs are

still indebted to the defendant as representative of pol-

icyholders, and still owe, as amounts. necessary to make

full and complete restitution to policyholders, the sums

set opposite their. respective names thereafter appearing,

and therefore (II, 503), the court doth order, decree, and

adjudge that each plaintiff shall respectively pay into the

registry of the court the balance respectively owing as

therein next recited, namely:

Then follows the name of each plaintiff, and op-

posite the name of each appears the amount of the bal-

ance owing ky them and reciting that the total of the

a owing by the plaintiffs is $1,067,948.80 (III, 503-

).

The decree then recites that the court further orders,

decrees and adjudges that, whereas the accounting made

by Northern Insurance Company of New York includes

the accounting of and was made for and in behalf of As-

surance Company of America, ag restitution on its part

(III, 508); that the accounting made by Phoenix Insur-

ance Company of Connecticut ifcludes an accounting of

restitution owing by Central Stftes Fire Insurance Com-

pany, and Connecticut Fire Insurance Company, Equi-

table Fire and Marine Insurance Company and Minneap-

64 INSTITUTION OF LITIGATION

olis Fire and Marine Insurance Company, therefore, up-

on payment by (III, 508-509) Northern Insurance Com-

pany and by Phoenix Insurance Company as above pro-

vided, of amount found by them owing it shall constitute

a satisfaction and discharge of claim of restitution against

those companies, and that all provisions of the judgment

thereafter contained, wherein reference is made to plain-

tiffs, are declared to be applicable to said mentioned com-

panies as well as to those specifically listed (III, 509),

The decree then contains provisions as to how and

when payment shall be made by the respective plaintiffs

to the commissioners and custodians of the court, and

for the report thereof to the court, and that upon making

of such payments, the respective plaintiffs are entitled

to have the judgment against them satisfied and dis-

charged (III, 509) and by such action on their part will

have made full restitution to all policyholders from whom

any unlawful or excess premium collections were ex-

acted and collected in excess of the legal rate fixed by

the order of the Superintendent of Insurance of October

9, 1922; that all policyholders are enjoined and restrained

from asserting or making any claim for restitution against

the plaintiffs or any of them who so comply, because of

exaction of excess premium collections in excess of the

rate fixed by said order on October 9, 1922, and collected

between November 15, 1922, and August 8, 1929. The

decree recites that said policyholders shall have their

sole recourse against the sums so paid into court (III,

509).

The decree recites that the Commercial Union Fire In-

surance Company has paid to the commissioners and cus-

todians in excess of its liabilities for restitution, out-

standing drafts and checks, interest and pro rata part of

the $200,000.00, and directs the commissioners and cus-

todians to refund said excess to said company in the sum

of $2,990.70, and that said Commercial Union Fire In-

surance Company (III, 509-510) is discharged from all

obligations for restitution.

It is further provided that upon payment of the re-

spective amounts therein adjudged, the plaintiffs and the

510.511) on their bond are discharged and released (III,

510-511).

Plaintiff's Exhibit 331 (III, 511-512) is the certificate

of the clerk of the Circuit Court of Cole County, Mis-

souri, that the above judgment is satisfied of record by

INSTITUTION OF LITIGATION 65

the following entry which appears on the margin of the

record:

“This judgment is satisfied in full, debt, inter-

est, and costs, this 16th day of January, 1936, and I

do further certify that in accordance with the provi-

sions of the within judgment and decree the sums

therein adjudged to be paid have been paid to the

Commissioners and Custodians as therein required

and said Commissioners and said Custodians have, in

accordance with said judgment and decree, reported

to the Court that all the parties therein named have

paid to them the amounts therein adjudged to be so

paid.”

Plaintiff’s Exhibit 332 (III, 513) is a copy of the final

judgment of the Circuit Court of Cole County, Missouri,

in the case of R. E. O’Malley, Superintendent of the In-

surance Department of the State of Missouri, plaintiff,

y. Patriotic Assurance Co., Ltd., and Patriotic Insurance

Company, defendants, No. 7825. It is similar to the judg-

ment, Exhibit 330, except that only two insurance com-

nies are defendants. It shows that these two defend-

ants’ total excess collection was $23,641.13; that the amount

not refunded to policyholders was $16,793.14, which last

sum has been ordered paid to the- commissioners and

custodians as provided for in an order of October 5, 1935;

that the interest properly calculated against such said un-

refunded sum is $4,787.45; that the pro rata of the $200,-

000.00 (III, 513-514), which the companies agreed to

pay to the Superintendent of Insurance, as to these de-

fendants, is $381.77; that the defendants are still in-

debted to plaintiff, as representatives of policyholders,

and still owe the sum of $5,169.22, as the amount neces-

sary to make full and complete restitution to policyholders.

It is ordered, adjudged, and decreed that defendant,

Patriotic Insurance Company, shall pay into the registry

of the court the sum of $5,169.22. The decree is dated

December 2, 1935 (III, 514-515).

Attorney for plaintiffs stated to the master during

the hearing that the judgment (Exhibit 332) was satis-

fied of record on June 16, 1937. Attorney for defendant,

in making his admission, did not expressly admit that

the judgment was so satisfied and did not deny the state-

ment of plaintiffs’ attorney (III, 512).

66 INSTITUTION OF LITIGATION

THE SETTLEMENT.

On May 18, 1935, a written agreement of settlement

of these cases was signed by R. Emmet O'Malley, Su-

perintendent of the Insurance Department of the State

of Missouri, and Charles R. Street, as agent for the stock

fire insurance companies, parties to rate litigation in the

United States District Court for the Western District of

Missouri and in the Circuit Court of Cole County, Mis-

souri (see “XIV Negotiation of Settlement”).

The objects of the settlement were: (1) To satisfy

the local agent, (2) To satisfy some companies that felt

that they were sick and tired of this litigation and ex-

pense, and (3) It was interfering with the progress of

“our business in Missouri” (Bell, I, 139).

The companies were unable to make filings of rates

and to procure the policy forms and coverages which

were filed in adjoining states; in other words, their prog-

ress in Missouri was being blocked by this continuous,

longstanding litigation. They had better sacrifice some-

thing than continue it. The agents would have profited

to a greater extent if the settlement had been made, with

the agent getting only the commission on that part of

the impounded premiums which the companies retained

(Bell, I, 139). Under the settlement Mr. O’Malley put a

new rate schedule into effect which theoretically raised

the rate level over the one which Mr. Hyde had fixed.

The minimum or maximum figure that Mr. Street set

up in the compromise was about 97 1-2. While he raised

the level at the same time by re-rating individual classes

of risks, it did not come out just exactly that way. It

came out very much lower. While he got the raise in

the rate level, yet when you reclassify your risks the ef-

fect on the gross income of the Missouri compromise did

not amount to what it would if you had just put in that

raise of level and let it go at that. The bare outline of

the rate charge was that they had previously drawn up

figures which were approximately between the 105 level

and the 90 level. That was done in the summer of 1934;

but at this time they contemplated that it was very es-

sential to get increases on certain particular classes. Those

increases were the ones which were foregone after Mr.

Terry’s conference with Mr. Street in 1935 (Terry, II,

385-386). . After the stipulation for settlement Mr. Folonie

worked almost. continuously on presenting the. matter to

respective courts in which cases were pending and in dis-

cussion of the matter with Mr: Street and others in in-

INSTITUTION OF LITIGATION 67

terest, to facilitate appropriate court orders securing the

completion and approval of the settlement by the courts.

Mr. Folonie was often in conference with Mr. Street in

regard to those matters (Folonie, III, 191).

After the compromise was agreed upon, Mr. Terry

started, in'a general way, to prepare the details of the

filings. He had no conference with Mr. Street in regard

to the matter (Terry, III, 384). Mr. Folonie and Mr.

Berger prepared the motions for a decree in Mr. Berger’s

office, and Mr. Berger verified the motion. At that time

Mr. Berger absolutely believed that the compromise had

been made in good faith, or he would not have verified

the motion (Berger, III, 395). The decree was entered

on February 1, 1936 (Folonie, III, 191).

THE DECREE OF THIS COURT.

Defendants’ Exhibit “3” was introduced in evidence

(I, 32-40), which is a copy of the decree that was ren-

dered by this court on February 1, 1936, and entered in

each of the 137 companion cases. It recites that the cause

came on to be heard upon the verified motion of plaintiff

for a decree and a stipulation executed by counsel for

plaintiff and defendants; that evidence was heard in

open court; that no policyholders contributing to the funds

deposited under order of the court ‘had intervened as

permitted by an order of the court on November 13, 1935,

and It Was Ordered, Adjudged and Decreed as follows:

“1. The controversy herein having been settled and

disposed of by the parties and no controversy between

the parties remaining, this cause is hereby dismissed.

“9 The court does direct W. T. Kemper, heretofore

appointed Custodian of the said funds, to distribute the

said impounded funds in his custody as follows:

“A. As respects funds reported and impounded by

plaintiff upon policies effective prior to May 1, 1935, he

is directed to refund to (pay to) the assured (policy-

holders), in the manner hereinafter provided, one fifth

(1/5th) of all net amounts so impounded. As —_

funds reported and impounded by plaintiff upon policies

effective after April 30, 1935, he is directed to refund to

(pay to) the assured, in the manner hereinafter provided,

one-third (1/3rd) of all net amounts so impounded. Such

payments shall be made to the respective assured on the

prorata basis of the net amounts impounded on their re-

spective policies.

68 INSTITUTION OF LITIGATION

“Aa. The Custodian shall additionally pay to the as.

sured, assured’s proportion of the net interest and ac-

cretions from impounded funds as same exists at the date

of this Decfee, such proportion to be ascertained and de.

termined aS hereinafter in this sub-clause Aa provided,

The amount assignable to case of plaintiff shall be an

amount bearing the same ratio to the total amount of net

interest and accretions as the total net amount of funds

impounded by this plaintiff bears to the whole net sum

impounded by this plaintiff and all of the other contribut-

ing companies to the funds impounded with the Custodian

(such other contributing companies being plaintiffs in

companion cases in which decrees identical with this

Decree are being entered concurrently with the entry of

this Decree, including those companies mentioned in

paragraph 9 hereof). This amount so found properly as-

signable to Plaintiff’s case shall be allocated to all as-

sured of this plaintiff to the extent and in the same

proportion aS the impounded fund is allocated to them in

sub-paragraph A above. For the purpose of distribution to

assured this Sum so allocated to all assured of plaintiff

shall be divided into 276 moieties, whereof 23 moieties

shall be allocated to policies appearing on the report for

the first impounding period, and 22 moieties to policies

reported on the report for the second impounding period,

and so progressively one moiety less for policies reported

for each suc€€SSive impounding period. The fund so al-

located to anY impounding period shall be prorated among

the several policies appearing on the report of this plain-

tiff for such impounding period by finding the ratio exist-

ing between the amount of the fund so allocated to such

impounding Period, and such portion of the total funds

impounded by this plaintiff for such impounding period as

shall be allocated to the assured according to the pro-

visions of subparagraph A above, and by applying such

ratio to the amount to be refunded to the assured (as pro-

vided in subparagraph A above) out of the total premiums

impounded for such period in respect of each such

policy. The foregoing provisions as to distribution of in-

terest and accretions to assured is upon the assumption

that the plaintiff has made 23 impounding reports; and

if the plaintiff has made less than 23 impounding reports,

the CustodiaM shall make the distribution in a similar

manner and #pon a similar basis.

“In determining net earnings and accretions for

purposes of this paragraph the Custodian shall take into

INSTITUTION OF LITIGATION 69

consideration as of the date of this Decree: Bank deposits

and accrued interest, market value of securities at closing

ice on New York Stock Exchange at close of business at

date of this Decree, accrued interest thereon, accounts re-

ceivable, expenses paid in advance, and from aggregate of

above deduct total remaining impounded principal, all

unpaid allowances and expenses of the Custodian. The

difference so computed shall be the net interest and ac-

cretions within the meaning of this paragraph.

“Determination of net interest and accretions for other

shall be made in accordance with usual ac-

counting practice.

“Ab. To render certain, and not subject to fluctu-

ation, the amount so to be paid to the assured, the Cus-

todian is directed to sell and convert into cash sufficient

of the securities now in his custody to create a fund

from which the Custodian shall make restitution to as-

sured as respects both impounded fund and net interest

and accretions as herein provided, and if the amount can-

not by him be calculated with certainty, he may create

such fund upon estimation subject to later correction by

him, which said sums so derived he shall deposit, sub-

ject to his withdrawal as Custodian, as a trust fund with

The Commerce Trust Company of Kansas City, Missouri,

out of which the Custodian shall make distribution to as-

sured, but such trust company shall not be responsible

for the disposition of such fund by the Custodian; Pro-

vided, that if such sum or sums be deposited upon estima-

tion, and be later found to be excessive or inadequate,

the Custodian shall make the necessary adjustments in

said trust fund.

“Ac. The Custodian shall pay and distribute to the

assured the amounts as provided in paragraph A and para-

graph Aa hereinabove, as soon as is practical for him after

closing his books and accounts, and shall pay the said

sums on each policy by the issuing and mailing of a check

to the assured named in the original impounding report

in his ession, and to the addressses therein given, Pro-

vided, however, that if there are or shall be any claims or

assignments filed with him that create any dispute as

to who is entitled to the fund due on any particular policy,

he may apply to this Court for further orders in regard

thereto; the Court retaining full jurisdiction to make any

and all further orders in regard to the preservation, pay-

ment and distribution of these funds, as to the method and

70 INSTITUTION OF LITIGATION

manner of so doing, the determination of the rights of

particular parties to receive the funds, and any and all

other matters in connection therewith except that such

or assignments must be filed with the Custodian

on or before June 30, 1936, or be forever barred in distribu-

tion under this Decree. The Custodian shall not be re-

quired to personally sign such checks, but may delegate

others to sign same, or may use any of the customary

signature-making or check signing devices in executing

same. The Custodian may place on such checks a re.

cital providing that same shall not be valid unless pre-

sented for payment on or before a date to be fixed by him.

“B. At the time, in the manner, and subject to the

withholding, and the right to withhold, and upon the con-

ditions, hereinafter set forth, the Custodian shall distrib-

ute and pay:

“1. To the plaintiff, 50% of the net fund reported

and impounded with him by the plaintiff upon all policies

upon which impounding is made; and

“2. To Robert J. Folonie, one of the counsel for

plaintiff, and Charles R. Street, Chairman of the Com-

mittee for the Insurance Companies, who, for them, are

supervising this litigation, as Trustees for and on behalf of

plaintiff, or the survivor of them or their successor or suc-

cessors, 30% of the net funds reported and impounded

as respects all policies effective prior to May 1, 1935, and

16-74% of the net funds reported and impounded by the

plaintiff upon policies effective after April 30, 1935, which

said sums so paid to said Trustees are paid to them as

Trustees for the plaintiff for which (as well as any other

amounts to be paid to them under this Decree) they shall

account only to the plaintiff; but if this Court shall so

order, they are to file a report of disbursements with the

Judges of this Court. The Custodian shall not be obligated

to see to the application by the Trustees of the amounts

by him paid to them under the provisions of this Decree.

“The Custodian is directed forthwith to disburse to

the plaintiff as a partial payment on account of the above

mentioned distribution provided for plaintiff, an amount

equivalent to 50% of the net fund impounded. with the

Custodian by plaintiff up to July 15, 1935; and the Cus-

todian is directed forthwith to disburse to said Robert

J. Folonie and Charles R. Street, Trustees, as a ‘partial

payment’on account of the above mentioned distribution

provided for said Trustees, an amount equivalent to 30%

INSTITUTION OF LITIGATION 71

of the net fund impounded with the Custodian by said

plaintiff up to July 15, 1935; Provided, however, that if

these distributions (together with the distributions to be

to the assured under the provisions of subpara-

A hereof) would result in distributing all or

within five per cent (5%) of the total net fund impounded

by the plaintiff, the Custodian is authorized to reduce

the percentage or amount of the distribution to the plain-

tiff to an amount that will leave in the possession of the

Custodian after making provision for refunds for the as-

sured under paragraph A, a sum equivalent to five per

cent (5%) of the total net fund impounded by the plain-

tiff. The balance of the fund remaining subject to distribu-

tion to the plaintiff and the Trustees respectively as pro-

vided in this subparagraph B shall be withheld and re-

tained by the Custodian subject to the further order of

the Court.

“All payments in this Decree provided, whether of

principal distributable to plaintiff, or principal or interest

and accretions distributable to the Trustees, shall be

made by the Custodian as far as practicable by the de-

livery to the party entitled to receive payment, of se-

curities held by the Custodian, to be selected by the Cus-

todian, which shall be accepted and credited on the

amount payable at the market value thereof (including

accrued interest) as reflected by the closing quotation

on the New York Stock Exchange at the close of busi-

ness on the last business day preceding the date of the

—- making delivery, or ordering the shipment

ereof.

“C, The Custodian shall, out of the balance of ac-

cretions and interest left after charging against the

same the amount to be refunded to assured under the

provisions of paragraph Aa hereof, pay the court costs;

all unpaid or future expenses of the Custodian as have

been or may be by the Court authorized and the lawful

charges of and allowances to the present or past officers

or appointees of this Court, and their agents, employees

and attorneys; and other charges which may be by the

Court from time to time directed. Any interest or gain

from the handling of the funds subsequent to the date

of this Decree shall be added to the interest and accre-

tions above referred to, and if any securities shall be sold

at a loss or other losses occur, the deficiency shall be

charged against such balance.

72 INSTITUTION OF LITIGATION

“After the Custodian has made all of the payments

and distributions required under the provisions of this

Decree, the remainder of said fund not so expended or

required, shall be paid to Robert J. Folonie and Charles

R. Street, Trustees for the plaintiff, or the survivor of

them, or their successors, provided that if at any time

it shall be made to appear to the Court that it is unneces-

sary to longer retain all of said fund, then upon proper

application therefor the Court may order payment to the

Trustees of such part as the Court finds to be in excess

of the amount necessary to be retained for such purpose.

“The Custodian need not allocate or assign any part

of the net balance of interest and accretions fund as same

exists at any time, to the plaintiff, as said fund has been

derived from the investment of funds of this plaintiff and

the other said companies having companion suits in this

Court as part of this same controversy.

“D. The amounts which under the provisions of

paragraph B hereof are to be withheld and retained by

the Custodian subject to the further orders of the Court,

may be resorted to in case the above interest and accre-

tions fund shall be exhausted, in which event said amount

so retained shall be subject to having imposed against

it all charges above provided to be made against said in-

terest and increment fund. If the Court shall at any

time deem the amount so withheld and retained to be

excessive, or to be no longer necessary, upon proper ap-

plication therefor it may order the distribution thereof

in whole or in part.

“3. Whenever reference is made herein to im-

pounded funds, or fund reported and impounded by plain-

tiff, or plaintiffs, it includes the principal amount of im-

pounded funds in the hands of the Custodian at the date

of this Decree, or the principal amount of funds that

may come into his hands at some later date as herein pro-

vided. By the term ‘net amounts impounded,’ or the term

‘net funds’ impounded, is meant the amount of the prin-

cipal of all impounded funds remaining after all credits

by cancellation, or otherwise, have been allowed by the

Custodian. No interest or accretions shall be considered

in determining either the amount of the impounded

funds, or the amount of the net impounded funds. In

making distribution as herein provided, the Custodian

may rely upon any facts contained in the records of im-

pounding as filed by the plaintiff, and shall not be re-

INSTITUTION OF LITIGATION 73

uired to consider any facts outside of said records ex-

cept as contemplated in Ac above.

“4. The Federal Reserve Bank of Kansas City is

hereby authorized and directed to deliver any or all bonds

now or hereafter held by it for said W. T. Kemper, as

Custodian, to, or as directed by said W. T. Kemper.

“5 Except to the extent that same may be incon-

sistent with specific provisions hereof, all power and au-

thority given to the Custodian by this Court under any

of its orders heretofore entered, shall continue until fur-

ther order of the Court.

“g. The Custodian is authorized to permit or re-

quire the plaintiff to report other additional impound-

ings of any premium collections respecting policies effec-

tive prior to November 11, 1935, and not previously re-

ported, and cancellations or endorsements effective prior

to November 11, 1935, upon policies effective prior to that

date, and shall advise the plaintiff by mail at least ten

(10) days before the final closing of his books after which

no further reports will be accepted. Such additional

and supplemental reports shall be considered as supple-

mental and additional to and a part of the impounding

reports for the twenty-third impounding period.

“7 Notwithstanding dismissal of this cause, the

Court expressly reserves power and authority, and re-

tains jurisdiction as respects taxation and assessment of

costs and allowances for fees to its officers and appointees

(and their attorneys and agents) for services already ren-

dered, or hereafter rendered, and to make orders respect-

ing the obligation of the parties, or the fund for payment

thereof, and to make further orders in aid of distribution

of impounded moneys, and to make appropriate orders

respecting sale, investment, safe-guarding and distribu-

tion of impounded moneys, interest and accretions, and

disposition of office furniture and fixtures, and dis-

charge of incidental costs and expenses, and to make fur-

ther orders respecting disposition of records and files in

the possession of the Custodian, and to require reports

and: accounts respecting performance of duties by the

Custodian and restitution of moneys to assured, and to

take any action deemed necessary to effectuate the pur-

poses of this Decree. Jurisdiction over all persons or

parties affected by this Decree is reserved for all pur-

poses of effectuating this Decree.

74 INSTITUTION OF LITIGATION

“8. The plaintiff and its sureties are hereby dis-

charged from liability upon temporary injunction bond

and interlocutory injunction bond heretofore exacted by

this Court and entered into by the plaintiff and its

sureties.

_ “9. It appearing to the Court that separate deposits

have been made with the Custodian by Underwriters

Grain Association and special deposit made by Pittsburgh

Underwriters Department, and separate accounts and re-

ports filed by them embodying an impounding for more

than one insurance company, the provisions as to distri-

bution to assured above provided, shall be made in iden-

tical manner as respects the said funds; and the pay-

ments herein provided to be made to the plaintiff shall,

as respects such special funds, be made to the said Un-

derwriters Grain Association and the said Pittsburgh Un-

derwriters Department as if they were a plaintiff herein

and subject to like payment to them and to the Trustees

as is herein provided respecting payments to insurance

companies, except only that payments provided to be

made to the plaintiff shall, as respects said funds, be

made to said depositors of said funds.

“10. The plaintiff, the defendants, the aforesaid

Robert J. Folonie and Charles R. Street as Trustees, and

the parties mentioned in paragraph 9 thereof, in open

court, consent to the making and entering of this Decree.

The above Trustees and the parties mentioned in para-

graph 9 hereof enter their several appearances as parties

hereto and nominate the present counsel for plaintiff as

their counsel herein and they andthe parties to this suit

consent for themselves and their successors that service

of notice of any subsequent proceeding in this suit may

be upon the present attorneys of record, or their suc-

cessors, for the parties.

“Entered this lst day of February, 1936.

“KIMBROUGH STONE,

Judge of the Circuit Court.

ALBERT L. REEVES,

Judge of the District Court.

MERRILL E. OTI!s,

Judge of the District Court.”

INSTITUTION OF LITIGATION

DECLARATION OF TRUST.

Defendant’s Exhibit “4” (I, 40

of trust dated February 7, 1936, executed by

Street and

J. Folonie, do hereby declare

funds which now ar

heir hands, and certain securi

of certain

come to t

now are or may come i

and pursuant to the terms

Court of the United.

of Missouri, Central Di

entered in case i

led “American

E. O’Malley, et al.,”

urt being all pending cases

o 426, both inclusive,

sty

R.

said co

from No. 270 t

certain causes were

but were theretofo

we have reduced to po

in the custody of City

Robert J. Folonie. It is as follows:

75

-44) is a declaration

Charles R.

“The undersigned, Charles R. Street and Robert

themselves trustees

pany, as follows:

“Receipt

Number

A94024

87

549

A63940

A716442

A65650

A90151

and securities may, 1n

tody and

suant to

cuit Court of Co

can Constitution

“And it is anticipa

Kind of Bonds

Treasury Notes B1938,

2 7/8%, due 6-15-38

Treasury Notes B-1939,

1 3/8%, due 12-15-39

Home Owners’ Loan A

3%, due 5-1-52

Treasury Bonds 1955-60

2 7/8%, due 3-15-60

Treasury Notes A 1938

2 5/8%, due 2-1-38

Treasury Bonds

3%, due 6-15-48

Treasury Bonds 1941

3 1/4%, due 8-1-41

Home Owners’ A

3%, due 5-1-52

n equity,

control, pursuan

decrees which may

le County, Misso

Denomination

$100,000.00

100,000.00

100,000.00

100,000.00

100,000.00

100,000.00

100,000.00

100,000.00

e or may hereafter

ties which

nto their possession, under

of decree of the District

States for the Western District

vision, being a certain decree

No. 270 in said court,

Insurance Company, plaintiff, v.

and other cases pending in

in said court,

in which series

not pending at February 1, 1936,

re dismissed. As such trustees

ssession certain securities now

National Bank & Trust Com-

Par Value

$100,000.00

400,000.00

100,000.00

200,000.00

200,000.00

700,000.00

600,000.00

200,000.00

ted that further sums of money

‘n like manner, come to our cus-

t to such decree and pur-

‘be entered by the Cir-

uri, in case of Ameri-

Fire Assurance Company V. O’Mal-

INSTITUTION OF LITIGATION

ley, or by order of the Supreme Court of Missouri in

said cause on appeal.

“Both of the undersigned do declare that they

have no personal interest in said fund directly, al-

tho said Robert J. Folonie has a contingent interest

therein, arising out of unpaid fees and expenses which

may, in the future, be discharged therefrom, for

services rendered and to be rendered, and expendi-

tures made and to be made in connection with such

litigation.

“Said moneys and securities above mentioned are

held in trust for the benefit of interested insurance

companies, namely, insurance companies involved in

litigation in the courts of Missouri in connection with

insurance rates, the general nature whereof is well

known to such interested insurance companies so rep-

resented by said trustees.

“The conduct of such litigation has been en-

trusted by various companies involved therein to the

conduct and management of Subscribers Actuarial

Committee, which is a committee existing and cre-

ated by interested insurance companies for manage-

ment of such litigation and who have had the conduct

thereof under their supervision. The said committee

has a membership which changes from time to time,

the present membership thereof consisting of Charles

R. Street, chairman; Herbert A. Clark, vice-chair-

man; George Bell, John C. Harding, Walter D. Wil-

liams, Ernest A. Henne and Fred W. Koeckert.

“Said trustees will, out of the moneys in their

hands, pay various sums provided in certain Memo-

randum of Agreement, made May 18, 1935, between

Charles R. Street, as agent for stock fire insurance

companies, and R. Emmet O’Malley, superintendent

of insurance, and witnessed by Robert J. Folonie and

John T. Barker, a copy of which is hereto attached.

Said trustees will undertake discharging the obliga-

tions of such agreement according to their interpre-

tation and understanding thereof, and, in particular,

payment of certain sums to the Superintendent of In-

surance and his attorneys, as therein prescribed, and

will additionally pay therefrom any sums arising by

way of costs, fees, and expenses assessed or adj dged

by any court in which such matters are pending, se-

curing vouchers for such payments; and for other

INSTITUTION OF LITIGATION ~

ents not so arising out of court orders, judgments,

or assessment of costs and fees, will disburse moneys

and securities in their hands under direction of Sub-

scribers Actuarial Committee, which directions they

will secure from them in writing, to be evidenced by

orders or directions for payment upon certification of

J. V. Parker, secretary for such committee, or his suc-

cessor, of action of such committee, or upon the signed

order of any two members of such committee, which

shall be evidence of the action of such committee in

authorizing and directing any payments from such

moneys and funds.

“The trustees may convert any of such securities

and sell or cause to be sold any of them, and may

invest or reinvest the proceeds thereof in their dis-

cretion.

“Such trustees shall continue to act until the

ses of the trust are completed, namely, disposi-

tion of all financial attributes of such litigation, in-

cluding not only sums assessed against the companies

for costs, fees and expenses which may properly be

discharged therefrom, but also such fees, expenses,

repayments of loans or other disbursements which

may be so certified to them by Subscribers Actuarial

Committee in the manner in which certification there-

of is above provided. ’

“The trustees will keep such amount as they

deem proper from time to time in bank account, sub-

ject to their withdrawal, and, when the purposes of

the trust are completed, will distribute the amount

remaining under direction of Subscribers Actuarial

Committee.

“In the event of the death or written resigna-

tion of C. R. Street, or upon some new person being

created as chairman of Subscribers Actuarial Com-

mittee, the Subscribers Actuarial Committee may

designate a successor, and such successor, as a con-

dition of succession, shall cause notice thereof to be

given to W. T. Kemper, custodian, or his successor

in that position; and upon the death or resignation

in writing of Robert J. Folonie, the Subscribers Ac-

tuarial Committee shall select a successor, who shall

be an attorney at law and who shall, if the said case

in the District Court of the United States above men-

tioned be still pending in any particular, file an entry

of appearance in said court and show his succession

INSTITUTION OF LITIGATION

to the court and file his appearance therein and sub-

mit to the jurisdiction of said court.

“Said trustees declare it to be their intent, after

the purposes of this trust are fulfilled, to distribute

to insurance companies, or representatives of insur-

ance companies entitled thereto, the remaining

of such fund and secure the approval of Subscribers

Actuarial Committee to such proposed distribution as

making an appropriate distribution thereof.

“It is here set forth as information for the bene-

fit of all parties concerned that the Subscribers Ac-

tuarial Committee is a Committee created by the

companies, of all classes, who are subscribers to cer-

tain activities in which the companies are individ-

ually and jointly interested, one of the functions of

the Subscribers Actuarial Committee being represen-

tation of all companies associated in litigation con-

cerning matters of general interest, which included

and includes the rate litigation in the State of Mis-

souri.

“Said trustees propose to open a bank account

with City National Bank & Trust Company and to

give directions to said City National Bank & Trust

Company from time to time as to the sale, purchase

or conversion of securities, and to make withdrawals

from deposits by them made in such bank; but said

City National Bank & Trust Company shall not be

required to inquire into the authority o. said trustees

in any acts by them so taken, nor justification nor

warrant of said trustees in making any payments,

nor verify that appropriate authority from Subscrib-

ers Actuarial Committee has been secured by such

trustees for performance of any act by them.

“In Witness Whereof, we have hereunto affixed

our signatures and seals this 7th day of February,

A. D. 1936.

(Signed) Charles R. Street (Seal)

(Signed) Robert J. Folonie (Seal)”

Mr. Folonie and Mr. Street executed this declaration

of trust after the federal court decree was entered, where-

by they took charge of the 30 per cent of the impounded

premiums (Folonie, III, 191). Then they proceeded to

administer that trust (Folonie, III, 191, 193) in accord-

ance with its terms (Folonie, III, 191), and paid out sums

INSTITUTION OF LITIGATION 79

in ce with Mr. Folonie’s report filed in this court

at a later date (Folonie, III, 193).

It was anticipated that the 30 per cent would be

uate for the payment of all expense in connection

with the litigation. They did not know what all the ex-

might be. It was discussed at the time the set-

tlement was drafted. Mr. Folonie, revealing no figures,

discussed that the companies were away behind in pay-

ing his compensation. The settlement contemplated set-

tling both the state and the federal cases. The impound-

ment in Jefferson City had been depleted to pretty nearly

$100,000.00 by allowances out of the principal. There

were matters of allowances to special masters, referees,

injunction bonds, and everything else; so they had no

way of knowing at that time just what all the expenses

were going to be. But it was contemplated that the 30

cent would be more than adequate to do it; other-

wise they would have set up more. They felt sure it

was more than adequate (Berger, III, 395-396).

The 30 per cent aggregated over $2,500,000.00 (Folo-

nie, III, 191). The trustees never paid anything out of

this trust fund without a written direction from the Sub-

scribers Actuarial Committee (Folonie, III, 215).

In the early party of March, 1936, the trustees started

to make a distribution of 6 per cent out of the 30 per

cent. It was the subject of discussion between Mr. Street

and Mr. Folonie. They were mutually agreed that they

had more money in trust than would be required for prob-

able expenditures in the future. Witness wanted to dis-

tribute $1,000,000.00 to the companies to divest themselves

of responsibility for the money, and to freeze a profit

they had in the bonds which would show quite a material

profit if they sold them at that time, and which might

disappear if they kept them long enough. Mr. Street

opposed this, and said $500,000.00 was enough. They

could not tell what they would need the money for. After

discussions on that proceeding for some little time, Mr.

Folonie gave in to Mr. Street and they agreed on a dis-

tribution to the companies of 6 per cent. Checks were

drawn for that distribution. Mr. Folonie drew a form,

or letter of communication to go with that. He thinks

that Mr. Street had the checks made out and sent them

to him to sign. Mr. Folonie made a list of the companies

and the amounts each one was entitled to, and had it

verified. He checked each check to see that the amounts

80 INSTITUTION OF LITIGATION

were correct, and delivered all the checks to Mr. Street

for distribution to the companies about March 9. Within

ten days after that Mr. Street told Mr. Folonie that he

had changed his mind, that he thought it would be ad-

visable to follow witness’ suggestion to distribute $1,-

000,000.00 instead of one-half million dollars, and that the

probabilities were that they would lose some of the profit

on the bonds if they held them too long; that he would

send the checks back to Mr. Folonie and they would cance]

them and make new checks (Folonie, III, 193-194).

Mr. Folonie brought over his book in which he keeps

all of the trustees’ business and everything he thinks

has any bearing on it. Mr. Street finally sent back pieces

of checks to witness, consisting of the righthand end of

each check, showing the number, the amount in dol-

lars (not the amount written out) and in most cases,

the tail-end of the names “Street and Folonie” and the

word “trustees.” Mr. Street said he had destroyed the

remainder of those checks. Mr. Folonie had his office go

through before he would take any further action, to check

up and see that these were all the checks that he had

signed, and he found that there were a number of checks

missing. He instructed the bookkeeper to paste in some

kind of a little slip showing the missing checks, which

she did. When witness called Mr. Street’s attention to

the fact that some of the checks were missing, Mr. Street

said that he had delivered a few of the checks to people

he happened to see, and the thing to do was to make

checks for 11 per cent to those who had not had their

checks, and to make checks to each one of those missing

for the difference between the amount they had already

received and the 11 per cent. That was done, and the

checks were made, and on the succeeding pages of wit-

ness’ book appears each of the checks for the 6 per cent

that were outstanding and all of the checks made in the

second batch. Those in the second batch for 11 per cent

were also dated March 9, 1936, by Mr. Street. He an-

tedated the checks to the date of the former checks. Mr.

Folonie did not raise any question about his doing this,

and did not think it was important (Folonie, III, 194).

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Appendix — American Insurance v. Lucas · 314 U.S. 575 | Frix