Mason v. World War II Service Compensation Bd., 47989

• Decision Date: 05 February 1952
• Docket Number: No. 47989,47989
• Citation: 51 N.W.2d 432,243 Iowa 341
• Parties: MASON v. WORLD WAR II SERVICE COMPENSATION BOARD et al.
• Court: Iowa Supreme Court

Page 432

51 N.W.2d 432

243 Iowa 341

MASON v. WORLD WAR II SERVICE COMPENSATION BOARD et al.

No. 47989.

Supreme Court of Iowa.

Feb. 5, 1952.

Robert L. Larson, Atty. Gen. and Herbert H. Hauge, Sp. Asst. Atty. Gen., for appellants.

Kuhlemeier, Poor, Fischer & Cray, of Burlington, for appellee.

GARFIELD, Justice.

The important question presented here is whether on appeal to the district court from the disapproval by the World War II Service Compensation Board of an application for compensation the court must permit evidence to be introduced or must, as the board contends, consider only the transcript filed by the board. The trial court held evidence aside from the transcript could be offered and considered. We affirm this decision.

Defendant board disapproved plaintiff's application for compensation on the ground he was not a legal resident of Iowa at the time he entered active service in the armed forces of the United States and had not maintained such residence for at least six months immediately prior thereto as required by section 35A.4, Code 1950, I.C.A. After plaintiff appealed to the district court the board filed therein a 'transcript of all documents in the proceeding, * * *' as provided by Code section 35A.7, I.C.A. When the appeal was heard it was agreed the transcript was accepted in evidence. Plaintiff's counsel then indicated he had testimony to offer and plaintiff testified.

At the end of plaintiff's direct examination defendant (board) moved to strike it and objected to the introduction of any testimony, apparently on the ground that under section 35A.7 the court is confined to a consideration of the board's transcript. We assume, without so holding, this was a timely objection to the introduction of evidence although such objections must usually be made before the testimony is given and not in a belated motion to strike it. See Kuiken v. Garrett, Iowa, 51 N.W.2d 149, and citations; Glatstein v. Grund, Iowa, 51 N.W.2d 162, and citations.

After requiring the board to file a transcript upon appeal section 35A.7 states, 'The appeal shall be heard in such district court as in equity de novo. Appeal may be taken to the Supreme court from any final order * * * of the district court.' There is no restriction upon the scope of the hearing in the district court.

The requirement of 35A.7 for filing a transcript appears to be patterned after the provision of section 86.27 that upon appeal from a decision of the industrial commissioner in a workmen's compensation matter the commissioner file a 'transcript of all documents in the case, * * *.' The language of 35A.7 and 86.27 regarding a transcript is almost identical. (We have quoted only a small part thereof.)

It is significant, as the trial court pointed out, that chapter 86, much older than chapter 35A here involved, goes on to state, section 86.29, 'The transcript * * * by the industrial commissioner shall be the record on which the appeal shall be heard, and no additional evidence shall be heard. In the absence of fraud the findings of fact made by the industrial commissioner within his powers shall be conclusive.' No such language is found in 35A.

As the trial court also observed, the provision of section 35A.7 (here in question) for the filing of a transcript is like the requirement of section 96.6, par. 9, that upon appeal from a decision of the employment security commission a transcript be filed with the district court. Section 96.6, par. 9, goes on to say, 'The transcript * * * by the commission shall be the record on which the appeal shall be heard, and no additional evidence shall be heard.' This is practically identical with the above quoted language of 86.29 relating to workmen's compensation. No reason is suggested why the legislature should omit from chapter 35A such a provision as found in 86.29 and 96.6, par. 9, if it intended no evidence other than the transcript may be heard. It is not our function to supply the omission.

Section 35A.7 is mandatory that the appeal to the district court 'be heard * * * as in equity de novo.' The term 'de novo' has a well defined meaning. It means anew, afresh, a second time. In re Heart River Irrigation Dist., N.D., 49 N.W.2d 217, 225; 25 C.J.S., p. 1011; Webster's New International Dictionary 2d ed.

A hearing de novo means that a case shall be heard the same as if it had not been heard before. Stronge & Lightner Co. v. Commissioner of Taxation, 228 Minn. 182, 36 N.W.2d 800, 807, and citations; Lone Star Gas Co. v. State, 137 Tex, 279, 153 S.W.2d 681, 692; Archer v. High, 193 Miss. 361, 9 So.2d 647, 648; 73 C.J.S., Public Administrative Bodies and Procedure, § 203, p. 554. This is especially true where the hearing is in a court of general, original jurisdiction like the district court, as in equity.

It is to be noticed section 35A.7 says the appeal shall be heard, not that the board's decision shall be reviewed. Rule 334, Rules of Civil Procedure, provides, 'Review (by this court) in equity cases shall be de novo.' Of course we are essentially a reviewing court, not one of original jurisdiction. A review proceeding is usually confined to the record made in the lower tribunal. See Denver & R. G. W. R. Co. v. Public Service Comm., 98 Utah 431, 100 P.2d 552, 554, 555; 42 Am.Jur., Public Administrative Law, section 224.

Thus where evidence was available and could have been offered to the lower tribunal, evidence is usually not permitted in a proceeding merely for review unless the statute so provides. Here, however, chapter 35A makes no provision for a hearing before the board. Disapproval of plaintiff's application was recommended by an employee of the board largely upon his ex parte investigation. Plaintiff had no opportunity to offer evidence except in the district court. To adopt defendant's contention would mean a veteran's application may be disapproved with no opportunity for him at any stage to offer evidence, in the accepted sense. We cannot approve such a result.

The authorities generally recognize that the right to a de novo hearing unlimited in scope, not a mere review, in a court of general jurisdiction implies the right to offer any competent evidence.

73 C.J.S., Public Administrative Bodies and Procedure, § 203, p. 554, states: 'A hearing de novo by a court of an administrative determination will be tried as any other civil action when the statute does not prescribe the procedure to be followed or limit the scope of the determination to be made.'

73 C.J.S., § 204, p. 555, says: 'Usually, however, a court trying the issues de novo may receive and consider evidence other than that offered before the administrative body, * * *.'

Deshler Broom Factory v. Kinney, 140 Neb. 889, 2 N.W.2d 332, 333, 334, was an appeal from findings of the state labor commissioner in an unemployment compensation matter. The statute provided 'trial de novo shall be had'. The court held: 'The district courts of this state are courts of general jurisdiction, and in the absence of specific statutory restriction a provision of statute providing for an appeal to and a trial de novo in the district court contemplates a trial in the commonly accepted sense of that term in a court of general jurisdiction, including the right to produce evidence in the same manner as if the action had originated in the district court.' See also Feight v. State Real Estate Comm., 151 Neb. 867, 39 N.W.2d 823, 827.

Under a statute, NDRC 1943, 61-0733, providing 'An appeal * * * in the district court * * * shall be heard and determined de novo' from a board's order as to the extent of an irrigation district, In re Heart River Irrigation Dist., supra, N.D., 49 N.W.2d 217, 226, states: 'The trial court concluded, and we think correctly, * * * it might receive * * * any competent evidence, * * * regardless of whether such evidence had been presented to and considered by the board * * *.'

Upon an earlier appeal from a ruling on a motion to dismiss in the same case, In re Heart River Irrigation Dist., N.D., 47 N.W.2d 126, 128, it was held, 'The District Court under the latter section does not act as an appellate tribunal, nor as a reviewing court, but as a trial court hearing the cause anew * * *. Under such a provision (for a trial de novo) 'The court cannot, and should not, determine the questions submitted for its decision upon the record made before the statutory tribunals, but upon evidence actually produced at its own hearing.' (Citation.)'

Stronge & Lightner Co. v. Commissioner of Taxation, supra, 228 Minn. 182, 36 N.W.2d 800, 807, states: 'Upon a trial de novo, a taxpayer may introduce evidence. * * * The hearing before the board of tax appeals is a trial de novo, not simply a review.'

Regarding an appeal to the circuit court from an administrative determination of an employer's benefit wage percentage and contribution rate under an unemployment compensation law, Broadway, Director v. Alabama Dry Dock & Shipbuilding Co., 246 Ala. 201, 20 So.2d 41, 44, 45, holds: 'The provision (of the statute) that the 'trial in that court shall be de novo with respect to his benefit wage percentage,' clearly * * * contemplates that the rate will be determined anew on evidence adduced by the parties, without any presumption in favor of the director's decision * * *.'

In Collier & Wallis v. Astor, 9 Cal.2d 202, 70 P.2d 171, 172, a statute provided that an appeal to the superior court from a decision of the commissioner of labor 'shall be heard de novo.' These exact words are found in our section 35A.7. The opinion states: 'Such a hearing * * * is in no sense a review of the hearing previously held, but is a complete trial of the controversy, the same as if no previous hearing had ever been held.'

Concerning an appeal to the superior court from a decision of the state board of tax appeals, Forrester v. Pullman Co., 66 Ga.App. 745, 19 S.E.2d 330, 333, holds it 'was a de novo investigation and the whole case is submitted * * * upon...