Farrell v. German American Insurance

Morton, J. This is an action to recover upon an award for a loss under a fire insurance policy, and was heard by the court without a jury. The first question is whether the action was seasonably commenced. The writ was dated three days before the expiration of the time limited in the policy for the bringing of an action. The date of the writ was prima facie evidence of the commencement of the action. Veginan v. Morse, 160 Mass. 143. Bunker v. Shed, 8 Met.. 150. Gardner v. Webber, 17 Pick. 407, 412. There was nothing which as matter of law required the court to find that the writ was made provisionally. Whether it was so made or not was a question of fact, and we think that it was competent for the court to find on the evidence before it, and for aught that appears it did so find, that “ the writ was made at the time it bore date, with an intention to cause it to be seasonably served on the defendant, before the term [sitting] to which it was returnable.” Bunker v. Shed, 8 Met. 150,151. It would follow from such a finding that the action was seasonably commenced. — 347 — The remaining questions relate to instances of alleged misconduct on the part of two of the arbitrators and to their effect upon the validity of the award. The policy was in the Massachusetts standard form, and the arbitrators were appointed under the clause which provides that in case the parties fail to agree upon the amount of a loss, the matter shall be referred to three disinterested persons, one to be selected by the insured, one by the company, and the two so chosen to select a third, — the award of a majority to be final. It is manifest that the arbitration thus provided for is intended to afford a simple and speedy remedy for the settlement of disputes in regard to losses, and to simplify proceedings in case of a resort to the courts, and is not necessarily to be governed in all respects by the rules which apply to a trial in court. We think that an award so arrived at is not to be lightly set aside even though there may have been informalities or irregularities in the conduct of the proceedings, if it appears, or the court may have found, that the arbitrators making the award acted in all matters pertaining to the submission in good faith and with an honest desire to come to a correct result. In such a case, the award, it seems to us, should stand, unless it plainly appears that the acts of alleged misconduct have prejudiced or may have prejudiced the party complaining, or have violated those well settled rules which justice requires should be observed in order to ensure the fair determination of the matters in dispute. See Nichols v. Nichols, 136 Mass. 256, 260; Straw v. Truesdale, 59 N. H. 109. Whether in any given case there has been such misconduct as to require the award to be set aside, will generally be a mixed question of law and fact, mostly of fact, (Morville v. American Tract Society, 123 Mass. 129, 139,) in regard to which the finding of the trial court will of course be final. The precise question therefore in the present case is whether it can be said as matter of law that the judge who heard the case erred in refusing to rule upon the evidence before him that the award was invalid. We do not think that it can be so said. Callahan’s experiment with crockery and the results were all reported by him to the other arbitrators at a meeting at which witnesses and counsel were present, and no objection was made. If there was any irregularity, it must be deemed to have been waived. — 348 — A similar experiment by Rowland with tin cans and the results were reported by him to the other arbitrators, and come, it seems to us, fairly within such examination and testing of the evidence as was permissible to the arbitrators. Small v. Trickey, 41 Maine, 507. Adams v. Bushey, 60 N. H. 290. It was competent, we think, for the court to find on the evidence before it that the visit of the arbitrators to Dracut and what took place there was with the knowledge and consent of both parties and their counsel. If so, there was no irregularity or misconduct in it. The conversations between Rowland and O’Leary and Callahan and O’Leary are not stated. They may have been entirely immaterial. Rowland testified that the conversation between him and 'O’Leary was “not half a dozen words all told.” Both testified that the conversations had ño effect upon them in making up the award. It is possible also that the court may have found in these cases, as well as in regard to the conversation between Rowland and Mr. Qua, that the conversation was after the award had been made. We do not see how it can be held as matter of law that the court erred in refusing to set aside the award because of these conversations. See Johnson v. Holyoke Water Power Co. 107 Mass. 472; Johnson v. Witt, 138 Mass. 79; Commonwealth v. Desmond, 141 Mass. 200. So also we think that it cannot be held as matter of law that the talk, which is not given, of Callahan with outsiders, requires that the award should be set aside. The remaining matters relate to talks, in the absence of the third, between the two arbitrators who finally signed the award. Both testified that they did not come to any final conclusion until the last interview, at which all were present, and at which, after unsuccessful efforts to agree with the third arbitrator, the award was signed by them. If any excuse or justification be needed for their talking with each other, it is found, we think, in the fact which there was testimony tending to prove, that the two had made efforts to have meetings of all three of the arbitrators, and had failed on account of the engagements and illness of the third arbitrator, and for other reasons, and that, as one of them told one Abbott, the .agent of the defendant company, which selected the other arbitrator, “ the time within which the — 349 — award was to be made was about expiring.” We see no objection to the examination which was made by the two arbitrators of Rowland’s books in regard to prices. Presumably one ground at least of the selection of Rowland and Callahan was their greater or less familiarity with the business in which the plaintiff was engaged. They had the right to draw upon their own experience and knowledge in considering the matters submitted to them, and it was certainly better for all concerned to do as they did, than to trust to their unaided recollection, or to accept without question the prices to which the plaintiff had testified. See Adams v. Bushey, 60 N. H. 290; Straw v. Truesdale, 59 N. H. 109. Moreover, there is some evidence, though slight, that what they had done was communicated to the other arbitrator at a meeting when all were present. On the whole case, we see no ground which requires as matter of law that the award should be set aside. The arbitrators who signed the award seem to have taken unusual pains to reach a correct result. They and the other arbitrator were before the court, which found that they acted in good faith, and we cannot say as matter of law that his ruling in favor of the award was wrong. Exceptions overruled.