Motors Ins. Corp. v. Dressel

• Decision Date: 21 May 1947
• Parties: MOTORS INS. CORPORATION v. DRESSEL. McGRAW v. SAME.
• Court: Ohio Court of Appeals

73 N.E.2d 817

80 Ohio App. 505

MOTORS INS. CORPORATION v. DRESSEL.

McGRAW v. SAME.

Court of Appeals of Ohio, Second District, Franklin.

May 21, 1947

J. Rothe Crabbe, of Columbus, for Motors Ins Corporation.

Harry A. Hanna, of Cleveland, for William J. McGraw.

Frank S. Shaut and Harold H. Gorman, both of Cleveland, for Ohio Automobile Dealers Ass'n, amici curiae.

Hugh S Jenkins, Atty. Gen., and Ralph Klapp, Asst. Atty. Gen., John W. Bricker, and Paul R. Gingher, both of Columbus, Ohio special counsel for Walter Dressel, Superintendent of Insurance.

BY THE COURT.

The appeal on questions of law is from an order of the Common Pleas Court entered in an appeal thereto holding invalid a rule which had been approved and adopted by the Superintendent of Insurance of Ohio, to be effective on June 11, 1945.

Four errors are assigned:

(1) That the decision of December 30, 1946 is contrary to law.

(2) That the Court erred in overruling appellee-appellant's motion to dismiss the appeal.

(3) The Court erred in holding that it had jurisdiction in this appeal to declare invalid the amended rule adopted by the Superintendent of Insurance on May 29, 1945.

(4) The Court erred in holding said amended rule invalid.

The rule, as amended, provides:

'This office, as a matter of policy, will not issue Insurance Agents' or solicitors' licenses for new applicants falling within any of the following classifications:

'(1) Officers or employes of Financial or Lending Institutions.

'(2) Applicants connected with the Automobile Sales business except for Life Insurance.

'(3) Applicants who are public employes whose time is supposed to be devoted to the service of the public.

'(4) Applicants who have not passed their twenty-first birthdays, except applicants who have been honorably discharged from the armed forces of the United States and who have passed their eighteenth birthdays.'

The quoted rule supersedes a former rule of date August 7, 1943 and the changes therein are indicated by italics. The first, third and fourth paragraphs of the rule are not involved on this appeal, which is to be determined upon the language of the first paragraph and the paragraph thereof numbered 2.

Judge Leach in a carefully written opinion, with which we have been favored, held the rule as it would affect the appellants, Motors Insurance Corporation and McGraw, to be unlawful because in conflict with G.C. § 644, and relied, in the main, upon Automobile Insurance Agency, Inc., v. Lloyd, Supt. of Insurance, Ohio App., 44 N.E.2d 792, wherein this Court affirmed the judgment of the Common Pleas Court, which opinion is reported in 9 Ohio Supp. 221, motion to certify judgment in Court of Appeals overruled by the Supreme Court, June 10, 1942. With this conclusion we agree.

It is further urged in the brief on behalf of the Superintendent of Insurance that the motions to dismiss the appeals should have been sustained because appellants are not persons adversely affected under G. C. § 154-72.

It appears in case No. 4019 that Motors Insurance Corporation is a fire insurance corporation, organized in the state of New York and presently licensed in the state of Ohio, to write physical damage coveraged upon automobiles, and in case No. 4020 that Mr. McGraw is an automobile dealer engaged in the business of selling automobiles at Bellaire, Ohio, and filed his appeal from the order of the Superintendent of Insurance on behalf of himself and numerous other persons connected with the automobile sales business in the state of Ohio.

Judge King, who ruled on the motions to dismiss the appeals, held that upon the averments of their petitions, the appellants were adversely affected by the rule under G. C. § 154-72, and further that if it were asserted that they were not so affected it could be developed factually upon the hearing of the cause. The subject matter of the motion was not again urged and the question now presented is whether or not upon the undisputed facts the appellee in this Court, Motors Insurance Corporation, and appellee, McGraw, are adversely affected by the rule. Manifestly, they are. The Superintendent could not observe the letter of...