Odle v. McCormack

• Decision Date: 29 November 1947
• Citation: 206 S.W.2d 416,185 Tenn. 439
• Parties: ODLE v. McCORMACK.
• Court: Tennessee Supreme Court

206 S.W.2d 416

185 Tenn. 439

ODLE v. McCORMACK.

Supreme Court of Tennessee.

November 29, 1947

Error to Circuit Court, Davidson County; E. F. Langford, Judge.

Petition by R. Fred Odle to require James M. McCormack, Commissioner of Insurance and Banking, to issue to petitioner a license to write insurance as an agent for the Motor Insurance Corporation, wherein J. H. Donoho and others intervened. To review a judgment of the Court of Appeals reversing a judgment of the circuit court in favor of the petitioner all parties in interest bring certiorari.

Judgment of Court of Appeals reversed and judgment of circuit court affirmed. Allison B. Humphreys, Jr. and Robert T. Kennerly, Asst. Attys. Gen for defendant Com'r.

Cecil Sims, of Nashville, for intervening petitioners.

NEIL Chief Justice.

This case had its origin before the State Commissioner of Insurance and Banking, in which R. Fred Odle's application for a license to write insurance as an agent for the Motor Insurance Corporation was refused. There was a formal hearing by the Commissioner, at which time a number of witnesses testified, including the applicant, and numerous exhibits were filed and made a part of the record. At the conclusion of this hearing, the Commissioner filed an exhaustive opinion, in which he discussed the facts, rules of his department, and his understanding of the law applicable to the case, and denied the application. Thereupon the said Odle filed his petition in the Circuit Court of Davidson County pursuant to Subsection (f), Section 1 Chapter 157 of the Public Acts of 1935, Williams' Code section 6236.27, which reads as follows: 'Within thirty days after the revocation or suspension of a license, or after the refusal of a license, the person aggrieved shall have the right to petition the circuit court of Davidson County to require the reinstatement or issuance of said license. Within thirty days after the granting of a license, or the refusal by the Insurance Commissioner to revoke or suspend a license, any person aggrieved thereby shall have the right to petition the circuit court of Davidson County to revoke, suspend or refuse to grant such license; and for the purpose of taking such action persons aggrieved shall include insurance company injured, or competitior injured or threatened with injury by any of the illegal or improper conditions or practices donounced herein. Any issue tried before the Davidson Circuit Court under this section of the Act shall be tried de novo in said court. The action in the circuit court of Davidson County shall proceed as a cause in equity.'

It is important to note that the petitioner did not pray for the writ of certiorari to issue to require the Commissioner to file the record for review. No fiat was granted and no writ of certiorari, either common law or statutory, issued, but the case was tried as an independent suit under the foregoing statute.

The averments in the petition were in substance that there was no evidence before the said Commissioner to support his action and that he was entitled to have the license issued to him as a matter of right. The Commissioner filed his answer and with it the record of the proceeding before him and upon which the application was denied. By an intervening petition J. H. Donoho and others were allowed to become parties in the Circuit Court. The intervening petitioners were and are representing themselves and other insurance agents in Tennessee and their position is that their business interests would be greatly prejudiced by the issuance of a license to Odle and others, representing the M. I. C., because the plan of insurance is unlawful in that it is in effect monopolistic. Other reasons are advanced in support of the Commissioner's action, which, for the present, need not be stated; nor is it important at this time to state all the grounds upon which Commissioner McCormack refused to issue Odle a license. The facts upon which the issues were joined will be discussed later in this opinion.

The Circuit Judge heard the case upon the record filed by the Commissioner and the testimony of W. B. Townsend. It is reasonable to presume that there was a hearing de novo and also that it was disposed of as 'a cause in equity' as provided in the statute. After reviewing the record in a more or less limited way, and citation of authorities, the opinion concludes as follows: 'It is not necessary in this case to pass upon the question of whether this case should be tried and determined in this Court de novo since the Court finds that the action of the Commissioner in refusing the license was based upon erroneous, although sincere and conscientious, conclusions of law. It has been necessary, however, to examine the record to the extent required to determine whether the action of the Commissioner finds support in law.'

The Commissioner and intervenors duly excepted and all parties prayed and were granted an appeal to the Court of Appeals. That Court reversed the trial court, holding in effect that the proceeding in the court below was to correct errors under the common law writ of certiorari. The Court of Appeals disposed of all assignments of error, which of course were directed to the opinion and judgment of the Circuit Court, as if there had never been a hearing other than before the State Commissioner of Insurance. One of the important questions made on appeal by the Commissioner was that he was not in error in refusing Odle a license because the plan of insurance by the Motors Insurance Corporation was illegal. This question was pretermitted by the Court of Appeals. It was further held that the Commissioner did not abuse his discretion, and that the trial court's jurisdiction extended only to a hearing under the common law writ of certiorari.

Writs of certiorari were granted to all parties in interest and the cause was transferred to Knoxville where all questions in controversy were fully discussed by counsel.

While petitioner Odle has assigned numerous errors, the determinative questions under said assignments and also assignments by counsel for the Commissioner and others, involve only three propositions, as follows: (1) whether there was a hearing de novo and a trial as 'a cause in equity' as contemplated by the Acts of 1935, or a limited hearing and disposition of the case under the common law writ of certiorari; (2) was the plan of insurance by the Motors Insurance Corporation legal or illegal, and (3) if legal, was the trial judge in error in directing that the Commissioner issue to Odle a license to do business as an insurance agent?

It is the contention of the Commissioner that the proceeding in the instant case and judgment of the Circuit Court were pursuant to Code sections 9008-9018. We think this is a mistaken view. While there is some analogy between hearings under the foregoing sections and the one now before us, we think the rights of the parties are controlled entirely by Chapter 157, Acts of 1935, Code section 6236.27, supra.

These Code sections have no application to the instant case because by Chapter 157 of the Acts of 1935, Code section 6236.27, it is specifically provided that there shall be a hearing 'de novo' in the Circuit Court of Davidson County and the case proceeded with 'as a cause in equity'. Instead, therefore, of petitioner Odle proceeding under the common law writ, or under Code sections 9008-9018, he availed himself of the remedy specifically provided under Chapter 157, Acts of 1935. His petition did not even pray for the issuance of a writ of certiorari, common law or statutory. Moreover, the issues raised in said petition were not triable in any court except the Circuit Court of Davidson County. The language of the act is clear and understandable and unmistakable that the trial was not under a common law writ of certiorari.

What is meant by a trial de novo? In Vinyard v. Republic Iron & Steel Co., 205 Ala. 269, 87 So. 552, 555, where there was an appeal from a municipal court, the Court in defining 'de novo' held that the trial is had as though the suit originated in the Circuit Court, 'and a new complaint or an amendment to the old, may be filed by the plaintiff, provided it does not exhibit an entire change of parties plaintiff or defendant, and does not show a departure from or change in, the original form of action.' See Words and Phrases, Perm.Ed., Vol. 12, p. 71; Estes v. Denver & R. G. R. Co., 49 Colo. 378, 113 P. 1005.

In Prosterman v. Board of Dental Examiners, 168 Tenn 16, 73 S.W.2d 687, 690, the dental board revoked Prosterman's license and thereafter he brought suit in the Chancery Court under Sections 9008-9018 to review the action of the board. The Chancellor disagreed with the board upon two important issues of fact and agreed as to two others. The board's revocation was modified to only a suspension of 30 days. The action of the Chancellor was affirmed by this Court, it being held that the above Code sections 'contemplate a trial de novo'. It was further pointed out by Mr. Justice Chambliss that 'since Staples v. Brown, 113 Tenn. 639, 85 S.W. 254, the right to a trial de novo under the statutory writ has been settled, unless, as in City of Nashville v. Martin, 156 Tenn. 443, 3 S.W.2d 164, the Legislature has seen fit to restrict the right of appeal.' In many cases the right is restricted to a hearing under the common law certiorari, as in Anderson v. Memphis, 167 Tenn. 648, 72 S.W.2d 1059, 1060, which involved a controversy as to assessment of property for taxes. In this latter case Mr. Justice Swiggart construed these Code sections and held they 'were intended and are effectual only to prescribe the procedure to be followed in cases of review by certiorari, and that they do not have the effect of...