Haven v. Winnisimmet Company.

Company, a corporation,

and Charles Dupee, . . . . guardian of Nathaniel Haven, . . . ... have agreed to submit the claim of said Haven against said company for personal injuries. suffered on board the ferry-boat of said company on the eighteenth day of September last, and all other demands between said ward and said company, to the determination of Henry Farwell . . . . and Joseph Breck, . . . . they in case of disagreement to choose a third person, the award of whom or a majority of whom, in case a third person shall be chosen, shall be final; and if either of the parties neglects to appear before the arbitrators after due notice given them of the time and place appointed for hearing the parties, the arbitrators may proceed in his absence."

The written statement of the above arbitrators of their inability to agree was as follows:

"The undersigned referees, appointed in the case of Charles Dupee, guardian of Nathaniel Haven, against the Winnisimmet Company, pursuant to the agreement hereto annexed, being ourselves unable to agree upon the facts and amount of damages to be awarded, do hereby appoint Newell A. Thompson, of Boston, as umpire in said case, to act with us in the hearing and final decision thereof, in the manner contemplated in the said agreement."

The written decision of Thompson, referred to in the declaration, was very voluminous, but the following statement of it will show all that is now material:

It commenced by reciting the proceedings in the case to the time of his appointment, and then proceeded as follows: "The undersigned, being the third person or umpire chosen as above, was unwilling to act in a case of so much importance with out personally hearing the several parties and their witnesses. Accordingly a new hearing was ordered, and on Monday, September 22, 1862, the parties met for that purpose at the office of the Boston Water Power Company in Boston, both referees and the umpire being present." The grounds relied upon by the plaintiff and the defendants, respectively, together with their wit. nesses, were then mentioned, after which the statement continued

Haven v. Winnisimmet Company.

"Now the undersigned, the umpire appointed as aforesaid, hav ing fully and carefully considered the grounds upon which the plaintiff's claim for damages is founded, the defendants' points of defence, and all the testimony offered by both parties, begs leave to submit the following as his decision and award in the case, and the reasons upon which his decision is based." The points which seemed to be involved were then given; and in reference to all of them, as well as to the testimony in the case, which was recited at great length, his opinion was expressed, it being frequently spoken of as "the opinion of the undersigned;" and throughout the statement his own opinion was referred to, without any mention of any consultation with the other arbitrators, or of any opinion which either of them had arrived at, upon the second hearing of the case. The statement then proceeded to say: "Under these circumstances, therefore, the undersigned feels compelled to declare that, in his opinion, the defect or imperfect working of the bell-apparatus; the failure of those whose duty it was to look after and guard against such defects or imperfections, and to make the proper examinations for that purpose; the placing of an incompetent steersman at the wheel and leaving him alone there to do the duty which none but pilots of experience should be permitted to undertake; and the unnecessary absence of Capt. Reed from the wheel-house at the time of the accident, he having assumed the position he did as the acting and responsible pilot in the absence of the regular pilot; clearly show such a degree of inexcusable carelessness and negligence on the part of the defendant company, its agents or servants, as to render the said company liable for all damages arising from accident caused by such carelessness or negligence." Then, after speaking of the rule of damages, and the plaintiff's condition, the statement continued thus: "The undersigned, however, does not consider that, by the terms of the agreement by which the parties submitted this case to him as umpire, he has himself any authority to fix the amount of damages to be awarded, but that his duty is only, after a full hearing and due consideration of the case, to determine which of the two referees have fixed upon the sum nearest, in his judgment, to justice

Haven Winnisimmet Company.

and equity. The referee selected by the defendants fixes the amount of damages at the sum of six hundred dollars, thereby recognizing and admitting two principal features in the case, that the plaintiff's ward did sustain injuries by reason of the accident, and that the defendants are liable for such injuries to a certain extent. If they are liable for any part of the injury they caused the plaintiff's ward to suffer, by reason of their own carelessness or negligence, or that of their servants or agents, they must be liable for the whole. Is, then, six hundred dollars, under all the circumstances shown in this case, a sufficient compensation for injuries, past and prospective, sustained by Mr. Haven? Is it a sufficient sum to compensate him for actual expenses, loss of time, loss of capacity to earn money, or as a reasonable solace or satisfaction for loss of bodily and mental powers, and pain of body and mind, which were the immediate and necessary consequences of the injuries sustained? Is it reasonably commensurate with the injuries, so far as can be discovered or known? Clearly not. The undersigned is therefore compelled to unite with the referee selected by the plaintiff, who has fixed the amount of damages to be awarded at the sum of three thousand dollars; and in doing this he feels bound to say that if the sum had been fixed still higher by the plaintiff's referee, even to the full amount claimed by the plaintiff, the umpire could not have hesitated in that case to decide in favor of the plaintiff, fully believing as he does that such increased amount could not and would not be considered, by any disinterested persons who should carefully examine into the case, as either vindictive or speculative damages, or a greater compensation, all things considered, than is reasonably commensurate with the injuries sustained by Mr. Haven, by reason of the inex. cusable carelessness or negligence of the agents and servants of the defendants. For these reasons, and with these expressions of his opinion in the case, the undersigned, as umpire, agrees to the subjoined award."

The material portions of the award referred to, which was signed only by Breck as referee, and Thompson as umpire, were as follows:

Haven . Winnisimmet Company.

"We, Joseph Breck, one of the referees chosen by the parties above named, under and by virtue of their written agreement hereunto annexed, and Newell A. Thompson, the umpire se iected by the two referees in the case, pursuant to the provisions of said agreement, we two constituting a majority of those to whom the said case has been submitted for final adjustment, having heard all the evidence in the case, and fully considered the facts and circumstances connected therewith, as well as the rights of the respective parties, do hereby agree upon the follow. ing as our award in the premises, viz.: We do award that the said Winnisimmet Company shall pay to the said Charles Dupee, guardian, for the use of the said Nathaniel Haven, the sum of three thousand dollars, with interest thereon from and after the date of the commencement of this suit."

The award also provided that the defendants should pay all the costs.

The answer, amongst other things, alleged that the award was void, because Thompson did not exercise his own judgment in determining the amount of it, but only determined which of the sums fixed upon by each of the other arbitrators was nearer in his judgment to justice and equity.

The case was reserved by the chief justice upon these plead ings and papers for the determination of the whole court.

G. A. Somerby, for the plaintiff. The objection of the defendants assumes the agreement to submit the matter to arbitration, the selection of two arbitrators, a hearing by them and a disagreement as to the amount of the award, and the selection by them of Thompson as the umpire or third person named in the agreement to refer, to act with them. The record does not support the objection that is made. The award signed by Breck and Thompson in terms set forth that they agreed upon the amount therein named as their award. The particular reasons of Thompson, as set forth in the other paper signed by him, dc not vary the award. Perhaps, after a disagreement of Erect and Farwell as arbitrators, it was well enough for him to tate the reasons of his judgment; but the award is no reg varied. While v. Sharp, 12 M. & W. 712.

Haven v. Winnisimmet Company.

Thompson was not a legal umpire. An umpire is one who takes upon himself alone the decision, after arbitrators have disagreed. Calling him an umpire does not make him one. The paper appointing him shows that he was to act in the manner contemplated in the agreement of submission; that is, clearly, as an arbitrator. Thompson's paper shows that he called himself "the third person or umpire chosen as above," and that "both referees and the umpire" were present at the second hearing. Taking this paper all together, does it not show that they acted together? Now this paper of Thompson's must be treated either as a part of the award, or as not a part of it. It is conceded, as the defendants contend, that it is to be considered as a part of the award; but if so, it shows that all the arbitrators acted. They were all present, and there was a rehearing before them.

The only question was as to the amount of damages. A.. of the arbitrators agreed that some damages should be given. Each arbitrator, if left to his own judgment, had a different opinion as to the proper amount. This is always so. No two minds agree. Somebody must always give up. In this case, Thompson would have given more; but he says he will agree with Breck upon a smaller sum than he should have fixed himself. How are the defendants hurt by this? It does not appear that the arbitrators did not all consult together. It cannot be inferred that they did not from the statement that Thompson agreed with Breck.

P. W. Chandler & J. B. Thayer, for the defendants. The arbitrators acted throughout on the opinion that Thompson was an umpire. But the two arbitrators had no authority to appoint an umpire. Lyon v. Blossom, 4 Duer R. 318. Little v. Newton, 2 Man. & Gr. 351. Arbitrators must attend all the hearings and determine the matter after joint consultation. Maynard v. Frederick, 7 Cush. 247. Short v. Pratt, 6 Mass. 496. In re Pering, 3 Ad. & El. 245. own judgment alone. Hodgson, 3 Burr. 1474. v. Cooke, 9 B. & C. 407.

But an umpire must decide on his Lyon v. Blossom, ubi supra. Soulsby v. Tunno v. Bird, 5 B. & Ad. 488. Bates Thompson's separate paper must be