The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1897-06-29
AGAINST M'NALL.
Judge Foster Decides That
Webb McNalI's Order
Restraining the Metropolitan
Insurance Company
From Doing Business in Kansas
Is Null.
HILLMON COMPANIES
Will in Consequence Be Able to
Resume Business.
McNalI's Attorneys Will APP
peal the Case.
.LLMON COMPANIES

United States Judge Foster today
| granted an injunction to prevent In
| surance Commissioner Webb McNall
| from interfering with the business of
! the Metropolitan Life Insurance COM
pany. This means that the companies
! excluded from the state by Commits
sioner McNan will continue to do busi-
ness just as if such an order had not
been made
The reading of the opinion was listen
| ed to by Private Secretary Little of the
| governors office and David OVerny er.
! Mr.. McNan was not present. Immedi-
ately after the opinion had been read
| Mr.. OVermyer gave notice that the case
would at once be appealed There is a
| question whether the case VIII be taken
| to the court of appeals the United
| States supreme court but it will prOba-
| bly, go to the court of appeals which
| holds it's sessions in st. Louis.
| The opinion is lengthy and consists
| largely of quotations from cases bearing
| upon the question involved. Judge F'Os-
| ter holds that the Wilder case which
| was one of those relied upon to susta in
| the position taken by Commissioner
| McNall does not apply. In that case
| the company brought suit to compel the
| commissioner to grant a company a Ii
| cense while in this case the question in
| vOlved is the right to revoke a license.
| In his opinion Judge Foster says: 1T
| must be admitted that the state has the
| right to exclude foreign corporations
! entirely from doing business in the
| state and it may impose any terms not
| Objectionable to the constitution and
| laws of the United States or on any
| corpora ton as a condition to their do
| ing business in the state
| The point upon which Judge Foster
| grants the injunction is the one con
| corning the exclusion for non-pa yment
of losses. 1t is held that the companies
have right to contest doubtful losses
in the courts Judge Foster says in the
| opinion: The complainant has a legal
| right to resort to the courts for settle
! nlent of controversies between it and
its policy holders and to say that it
| must either forego its legal rights in
| that respect and submit to fraudulent
| claims or quit business in the state is
| arbitrary, unreasonable and dictator
| ial."
He then quotes from the act of the
| legjsla ture to prove that the legisla-
ture did not intend to give such power
to the commissioner. Continuing the
! judge says:
| 1t clearly appears that his action is
| beyond any express or implied sanction
| of the law. The legislature intended
! that the insurance commissioner should
| have the right to contest claims against
| them IN the courts He then quotes
| from the law which provides that an in
! surance company may be excluded for
| days.
There are three other injunction cases
| pending involving the same question.
;t Lhey are the three companies contest
| ing the Hillmon claims, the New York
| Life, New York Mutual and Connecti-
| cut Mutual The decision will cOnse-
| quently allow these companfes to con
| tinue to do business in Kansas
| In the case of the Metropolitan Life
| two policies were involved, one for S72
and the other for $400, both in Kansas
| City.The company refused to pay them
| on the ground that they were fraudu-
| lent and Commissioner NTcNalI revoked
| its license to do business in Kansas.
| The Hillmon cases are well known
| They have been in the courts for over
| 20 years: Commissioner McNaH revok-
| ed the licenses of the companies CON
! testing the Hillmon claims on the
| ground that they were neglecting and
| refusing to pay their losses and causing
| endless litigation.
CASE TO GO TO ST LOUIS.
| Webb McNaI declined to discuss the
/ order of the court this afternoon He
| said: The appeal which we have ta-
| ken will bring the case before Judges
| Caldwell SanbOrn and Thayer in the
| United States circuit court of appeals
| at St Louis. The case, I presume will
| not pc long delayed as the record can be
| made up in comparatively short time
and will be filed in the higher court
| very soon"
! Mr.. McNalI refrained from exnressine
| his opinion of the decision simply saw
ing:
Z have said in the past all that
| care 10 say and the situa ton would not
| week. "
David Overmyer, one of Commission
| eT McNan's attorneys said today in
| speaking OF the decision Of Judge FDs-
| ter:
'As I understand it Judge Fosters
| order is simply a continuance of the re-
| Straln1ng order. The words of the or
| der are in substance, that McNau is
| restrained in any way from interfering
| with the company in the transaction of
| business in the state. He is not direct
| ed to revoke his order revolxinec the Ii
| cense of the company nor to issue a
| license for the unexpired term Both
| were prayed for by the company in jts
/ petition. The effect of the order, so far
| as McNan is concerned is to restrain
| him from taking any further steDs in
| the matter. l am not aware. however
/ that he had intended to take any furth
| er steps
| When he issued the order revo1xine,
| the license suppose that was all he
| considered himself authorized to do in
| the matter. He could therefore CON
! tinue TO do nothing with perfect con
! sistency as that is what he would have
| done anyway.
| I suppose, of course there is an
| other view of the matter and that is
| that this decision of the United states
| circuit court decides and adfudges Mo
| NalIs order of revocation of the license
of the company was and is absolutaIv
| void. So long as this order of the
| court IS unreversed I suppose it would
| affect all parties who might seek to
| take any action officially as against the
! company. While the superintendent Of
| insurance would have nothing further
| to do, the public prosecutors whose
| duty it would be to proceed against
the company for doing business without