Allen v. Hiller

Perkins, J. Hiller■ sued Allen for mal-practice as a surgeon in setting and treating a broken limb. Pending the suit it was referred to arbitrators, who awarded that Allen should pay Hiller 125 dollars, which award was filed in the Circuit Court. A rule was taken to show cause why judgment should not be entered upon the award. In answer to the rule, fraud and other misconduct on the part of the arbitrators was alleged. Evidence was heard, and the award was set aside. The substance of the evidence to sustain the charge of misconduct and fraud is that of James Mason, who testified that a few days after the award he met Allen in the street, and asked him how the battle went, and that the reply was, that Hiller had got a-judgment against him of 125 dollars by his order; of Augustus Newton, who testified that the arbitrators, on the last day of their session, sent severally for Hiller and Allen, but he does not-know whether they went into the room of the arbitrators, nor what transpired; of witnesses who testified tliat' after the parties, had closed their evidence, but while both were present, the arbitrators called Dr. Chamberlain, who had been subpoenaed as a witness by both parties, and asked Mm what were Dr. Allen’s attainments as a surgeon, and that the reply was that he considered them good; of Dr. Chamberlain, who testified as follows: “Did not see or-hear arbitrators have any conversation with defendant about the case during the trial before arbitrators. "Was invited by Dr. Allen to see case [311] of the tumor on the eye of a lady at Dr. Allen’s office-Dr. Allen stated that Professor Meeker and Dr. Humphreys would be there. Went to see the tumor. Dr. Meeker and Dr. Humphreys, two of the arbitrators, were there. Heard no conversation about the case. Saw the arbitrators in the bar-room at Newton’s, and also the plaintiff and defendant.” T. G. Harris, H. C. Neweomb, and J. 8. Harvl the,.appellant. J.. A. Liston and A. Heath, for the appellee. We see nothing in this evidence showing fraud or misconduct in the arbitrators. It is said that arbitrators should not examine witnesses in. the absence of notice of the proceeding to the parties, because it would deprive them of their right to a cross-examination. Oswald v. Grey, 29 Eng. L. and Eq. R. 85. Here the party not only had notice, but was present. Awards by arbitrators should he regarded with respect, and not be heedlessly set aside; for they are the decisions of persons chosen by the parties to decide their differences. Cald. on Arb. p. 92. The Court did not assume to, if it could, look to the merits of the award, as it does not appear that all the evidence given to the arbitrators was before the Circuit Court, and the presumption would be that the award was justified by all the evidence. Cald. on Arb., ed. 1853, p. 291, note. The Court erred in setting aside the award. Per Curiam. The judgment subsequently rendered in the cause, with all the proceedings back to the ing upon the rule to show cause against the awardp^isíf,-^' set aside with costs, and the cause remanded struetions to enter judgment upon the award.