State ex rel. Oklahoma State Bd. of Embalmers and Funeral Directors v. Guardian Funeral Home

Decision Date20 June 1967
Docket NumberNo. 41402,41402
Citation429 P.2d 732
PartiesSTATE of Oklahoma ex rel. OKLAHOMA STATE BOARD OF EMBALMERS AND FUNERAL DIRECTORS, and Oklahoma State Board of Embalmers and Funeral Directors, Plaintiffs in Error, v. GUARDIAN FUNERAL HOME, an Oklahoma Corporation, Defendant in Error.
CourtOklahoma Supreme Court

Syllabus by the Court

1. A motion for judgment on the pleadings is in the nature of a demurrer. It tests the sufficiency of the pleadings and presents a question of law as to whether the facts alleged are sufficient to state a cause of action or a defense.

2. Where it is necessary to procure a license in order to carry on a chosen profession or business, the power to revoke a license, once granted, is penal and therefore should be strictly construed.

3. Findings of administrative agency acting in a quasi-judicial capacity should be a recitation of basic or underlying facts drawn from the evidence, and must be free from ambiguity which raises doubt as to whether board proceeded upon correct legal theory, and must be sufficiently specific under circumstances to enable reviewing court to intelligently review order and ascertain if facts upon which order is based afford reasonable basis for order.

4. A hearing in administrative proceedings should be confined to the points at issue, so as to insure to the persons affected full opportunity to be heard on any matter before a ruling is made.

Appeal from the District Court of Oklahoma County; W. R. Wallace, Jr., Judge.

Appeal by the Oklahoma State Board of Embalmers and Funeral Directors from a judgment vacating and declaring void a prior order of the Board revoking the license of Guardian Funeral Home for a period of 30 days. Affirmed.

G. T. Blankenship, Atty. Gen., Okl., Penn Lerblance, Asst. Atty. Gen., for plaintiffs in error.

Gene H. Hemry, Hemry & Hemry, Oklahoma City, John H. Cantrell, Cantrell, Douglass, Thompson & Wilson, Oklahoma City, for defendant in error.

DAVISON, Justice.

This is an appeal by the Oklahoma State Board of Embalmers and Funeral Directors (herein referred to as Board) from a judgment of the lower court sustaining the motion of Guardian Funeral Home (herein referred to as Funeral Home) for judgment on the pleadings. The judgment vacated and declared void a prior order of the Board in which the Board revoked the license of the Funeral Home for a period of 30 days.

The Funeral Home is a corporation and had procured from the Board a license to engage in the profession or business of funeral directing and embalming. 59 O.S.1961, §§ 396.4 and 396.6.

This controversy had its inception when a complaint was filed with the Board (59 O.S.1961, § 396.13) charging the Funeral Home with entering into a contract to furnish a prearranged funeral service and plan in violation of 50 O.S.1961, §§ 401, 402, 403, whereby said license was subject to either permanent or temporary revocation pursuant to 59 O.S.1961, §§ 406 and 396.13.

The complaint stated in part that on a certain date the Funeral Home

'* * * a funeral home duly licensed pursuant to and under the laws of the State of Oklahoma, then and there willfully, intentionally and unlawfully entered into a certain contract with one Miss Opal Mae Sharp, wherein said funeral home did agree to furnish a prearranged funeral service and plan whereby said funeral home did, for valuable consideration, to-wit: $36.00 in lawful money of the United States of America, contract and agree to furnish said Miss Opal Mae Sharp standard funeral service and merchandise at a price not to exceed cost plus ten per cent upon the demise of said Miss Opal Mae Sharp or upon the demise of any member of the immediate family of said Miss Opal Mae Sharp or other person for whom she may be legally or morally responsible.'

The complaint further alleged that said contract was an instrument made and subscribed by Guardian Foundation, having the same address as the Funeral Home, and attached a copy as Exhibit A. The instrument is a 'Service Contract' with Miss Sharp whereby, inter alia, Guardian Foundation agreed to maintain relations with one or more funeral homes in Oklahoma City and vicinity that would supply Miss Sharp (Contract Holder) with standard service and merchandise at a price not to exceed cost plus ten per cent.

The complaint further alleged that the Funeral Home ratified said contract when it issued a 'Credit Certificate' (Exhibit B) to Miss Sharp, agreeing to allow a credit of $36 on the purchase of a complete adult funeral service from the Funeral Home, and containing also a statement that the credit in no way interfered with the service contract issued by Guardian Foundation. The complaint also alleged the Funeral Home issued a 'Life Registration Card' (Exhibit C) to Miss Sharp, certifying she was a member of the Guardian Program, and referring to the service contract.

The Funeral Home filed a verified answer to the complaint consisting of a general denial and a specific denial that it ever appointed or authorized the President of Guardian Foundation (who signed the Service Contract) to act as the agent or representative of the Funeral Home.

Hearing was held before the Board and the above described written instruments were introduced and other evidence and testimony was heard. The Board took the matter under advisement. Some three months later the Board entered an order finding the 'allegations set forth in said complaint' were true and revoking the license of the Funeral Home for a period of thirty days. The Funeral Home appealed to the District Court of Oklahoma County. The District Court remanded to cause to the Board with directions to comply with the provisions of the Administrative Procedures Act, 75 O.S.Supp.1963, §§ 311 and 312, requiring findings of fact and conclusions of law.

The Board, without further hearing, entered an amended order in which it found that the Funeral Home and Guardian Foundation were separate corporate entities; that Guardian Foundation acted as agent for the Funeral Home in making a contract to furnish Miss Sharp funeral services and merchandise at cost plus ten percent, less a credit of $36; that Guardian Foundation received a consideration of $35 cash from Miss Sharp and received free office space and utilities from the Funeral Home at the latter's funeral establishment; and concluded the Funeral Home had acted as a principal in a contract for a prearranged funeral service and plan in violation of 59 O.S.1961, §§ 401 through 406. Said order recited an additional conclusion that the Funeral Home's conduct violated 59 O.S.1961, § 396.12, subd. k, prohibiting such licensee 'to pay or cause to be paid, directly or indirectly, for the securing of business; or to directly or indirectly solicit business.' The order revoked the license of the Funeral Home for a period of 30 days.

Title 59 O.S.1961, § 401, provides in pertinent part that no licensed funeral home shall act as principal in any contract providing for a prearranged funeral service or plan for any person. Section 402 thereof defines a prearranged funeral service or plan as 'any funeral service or plan which is arranged, planned, or determined prior to the demise of the person' for which the funeral service is to be performed. Section 403 thereof permits a funeral establishment to take money in payment of a funeral service prior to demise of a person, provided it is requested by the...

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