Elmore v. Lanier

Annotate this Case

155 S.E.2d 114 (1967)

270 N.C. 674

John I. ELMORE v. Edwin S. LANIER, Commissioner of Insurance.

No. 544.

Supreme Court of North Carolina.

June 20, 1967.

*115 Thos. J. White, Kinston, for plaintiff.

Howard E. Manning, Raleigh, Special Counsel to the Department of Insurance, T. Wade Bruton, Atty. Gen., by Bernard A. Harrell, Asst. Atty. Gen., for defendant.

*116 PLESS, Justice.

The pertinent sections of Chapter 58 of the General StatutesInsuranceare summarized as follows:

G.S. § 58-42 provides that when the Commissioner of Insurance is satisfied that any insurance agent has willfully violated any of the insurance laws of the State or willfully misrepresented any policy of insurance, or willfully deceived any person in regard to any insurance policy, or has failed to pay over any money or property in his hands belonging to an insurance company, the Commissioner may immediately suspend his licenses, giving the licensee ten days' notice of the charges and of a hearing thereon; and if, upon the hearing, the Commissioner finds any of the above violations, he shall specifically set out such finding and revoke the license of the agent. The agent may have the revocation reviewed as provided in G.S. § 58-9.3 by filing a petition in the Superior Court of Wake County within thirty (30) days from the date a copy of the order is delivered to the petitioner. The cause will be heard by the trial judge as a civil case, upon transcript of the record, for review of findings of fact and errors of law only, and the order may be affirmed or set aside as the record may justify. The order of the superior court is subject to appeal to the Supreme Court, by any party to the action, as in other civil cases.

Legislation of this type has become necessary in many fields, and so a system of administrative procedure has been instituted in which matters of regulation and control may, and must be, tried by properly established commissions and agencies that are peculiarly qualified for the purpose. Thus, we have the Workmen's Compensation Commission, the Utilities Commission, and the Insurance Commission which are similarly empowered to hear and determine controversies in their respective fields. Since practically every case originating in the courts must, as a matter of absolute right, be tried by a juryunless all parties waive itit has been found more efficient and practical to use the administrative process in these instances. This procedure is particularly efficient when the subject of inquiry is of a very technical nature, or involves the analysis of many records. After the hearings before the agencies have been conducted, the statute gives any aggrieved party his "day in court" by appeal or other recognized procedure.

To permit the interruption and cessation of proceedings before a commission by untimely and premature intervention by the courts would completely destroy the efficiency, effectiveness, and purpose of the administrative agencies. To allow it would mean that in some instances a case might pend in the courts until a jury trial could be held, which would frequently cause unjustified delay, and result in thwarting the purpose for which the administrative investigation was established, and the constitutionality of the proceedings may not be tested except in rare instancesnot applicable hereuntil the matter has reached the courts for review.

In State ex rel. Summrell v. Carolina-Virginia Racing Association, 239 N.C. 591, 80 S.E.2d 638, Bobbitt, J., speaking for the Court, said:

"Where a resident and citizen seeks to enjoin public officials from putting into effect the provisions of a statute enacted by the General Assembly on the ground that the statute is unconstitutional and is therefore void, it is held that he is not entitled to injunctive relief in the absence of allegations and proof that he will suffer direct injury, such as a deprivation of a constitutionally guaranteed personal right or an invasion of his property rights. In the absence of such allegation and proof the Court will not pass on the constitutionality of the statute. Wood v. Braswell, 192 N.C. 588, 135 S.E. 529; Newman v. Watkins, 208 N.C. 675, 182 S.E. 453."

In Fox v. Board of Commissioners of Durham, 244 N.C. 497, 94 S.E.2d 482, Justice *117 Bobbitt, again speaking for the Court, said:

"In 28 Am.Jur., Injunctions sec. 182, the general rule is stated as follows: `The usual ground for asking injunctive relief against the enforcement of statutes is their invalidity, but that, of itself, is not sufficient to warrant the exercise by equity of its extraordinary injunctive power. In other words, the mere fact that a statute is alleged to be unconstitutional or invalid will not entitle a party to have its enforcement enjoined.'"

In this case, after some six months of investigation, the Commissioner of Insurance has charged that the petitioner has fraudulently and flagrantly filed false claims for insurance losses by virtue of his license as an insurance agent. Whether the charges will be proven is yet to be established, but we can assume that the elected Commissioner of Insurance would not temporarily suspend the plaintiff's licenses and prefer these serious charges without substantial evidence to support them. The action of the plaintiff in closing out his business and moving to another county in the midst of the Commissioner's investigation indicates that he, too, had some fears of the outcome.

The petitioner offered impressive reasons for a continuance of the hearing, but the motion was denied. While the statute provides for ten days' notice, he was given seventeen. Moreover, the investigation by the Commissioner could not have been conducted without the knowledge of the petitioner, and his concern for the outcome is demonstrated by the closing of his business three months before the hearing and indicates that he was forewarned of the likelihood of this proceeding well in advance, and had substantially more notice than the statute requires. In the absence of abuse of discretion, which is not shown, the refusal of the Commissioner to allow a continuance cannot be overruled. The motions to sever and for a bill of particulars were also determined in the discretion of the Commissioner, and, no abuse being shown, the rulings thereon will not be disturbed.

At the hearing, the petitioner surrendered his insurance licenses, all of which expired on March 31. The petitioner claims that under these circumstances the cause is now moot. He further calls attention to G.S. § 58-48 which he says provides for punishment in criminal proceedings if his guilt should be established. An inspection of that statute leaves some question of its applicability to the allegations made by the Commissioner. Even if the petitioner is correct, this would constitute no defense to these proceedings. The Insurance Commissioner has no authority to require the Solicitor to institute or prosecute a criminal action nor to require a judge to punish the defendant upon conviction. Then too, repayment of the alleged misappropriation of $33,000 would not necessarily be required in criminal proceedings.

With no adjudication of his wrongdoing, and upon the dismissal of these charges (solely because the petitioner, with whatever motive, reason or hope, has found it expedient to surrender his licenses), he could have substantial hope of regaining them within a comparatively short time. To move across a nearby state line, he would, in all probability, have little difficulty in obtaining licenses in the other state. While the agent in this kind of investigation may be presumed to be guiltless until his improper conduct has been formally proven, we must recognize that he would not be likely to close up his business, surrender his means of livelihood, and move his home unless he had substantial fear of the results of the investigation he is trying so desperately to prevent.

The plaintiff must accede to the laws of the State which require that his alleged derelictions be first adjudicated by the Insurance Commissioner. This has been prevented because of the ex parte preliminary injunction obtained by the plaintiff. Ample *118 safeguards are provided by appeals to the courts, at the proper time, to protect him from any improper or illegal results.

Judge Braswell was correct in dissolving the temporary injunction, and the cause is hereby remanded for further proceedings before the Commissioner of Insurance under Chapter 58 of the General Statutes.