Beattie v. Hilliard

• Decision Date: 12 March 1875
• Parties: Beattie v. Hilliard.
• Court: New Hampshire Supreme Court

55 N.H. 428

Beattie v. Hilliard.

Supreme Court of New Hampshire

March 12, 1875

It is a gross misconduct for a person who has formed and expressed an opinion on the case, to accept the office of arbitrator without informing the parties of the fact.

It is sufficient reason for admitting secondary evidence that the original paper is beyond the jurisdiction of the court

BILL IN EQUITY, to set aside the award of John W. Barney, Benjamin F Hunking, and Edward R. Kent, arbitrators agreed upon by these parties to determine concerning the claims of each against the other for damages sustained by each in an affray and assault, May 18, 1868.

The bill alleges that "the arbitrators were biased and committed in favor of the defendant and his case, and prejudiced and hostile to the plaintiff and his case, and were partial and interested in behalf of said defendant, and unfit men to serve as arbitrators between the parties touching the matters aforesaid, * * all which the defendant well knew, but concealed his knowledge; * * that said arbitrators did knowingly and fraudulently enter upon said trust, with the knowledge and connivance of the defendant intending to injure and defraud the plaintiff; * * that the award is exorbitant, excessive, fraudulent, and unwarrantable."

The answer is a specific denial of these charges, to which there is a general replication.

The cause was tried before FOSTER, J., at the April term, 1874 of the supreme judicial court.

Under the direction of the court, the following issues were framed and submitted to the jury:

I. Were the said arbitrators [or either of them] biased or committed in favor of the said George Hilliard and his cause?

II. Were the said arbitrators [or either of them] prejudiced or hostile to the said Alexander M. Beattie and his cause.

III. Were the said arbitrators [or either of them] partial to the defendant and his cause, by reason of any interest of the said arbitrators, or either of them, in the result of said arbitration?

IV. Was the said award exorbitant or excessive?

V. Was the said award fraudulent?

In the summing up by the court, the presiding judge said,---"It is no cause for setting aside an award, that a person finally agreed upon as an arbitrator, has at some time formed and expressed an opinion concerning the case, if he was impartial at the time of the hearing. In a case naturally or inevitably creating great excitement, everybody talks about it, hears about it, reads about it, and gets an impression about it. First reports are generally exaggerated. Usually one side is heard first. At last it turns out that the facts are not so bad as reported. The other side is heard, opinions become modified, changed,

reversed. The question is, whether an arbitrator, at the time of his official and judicial action, is impartial, and free from prejudice or bias. Strict impartiality is required. A person who accepts the office of an arbitrator should approach his duty with clean hands and a pure heart. If he has heard the case talked about, and if he has formed an opinion, he ought not to sit as an arbitrator unless he feels that he can divest and has divested himself of all prejudice or bias. If he does not fulfil these conditions it is misconduct on his part, and if it is serious, it will avail to set aside the award. During the progress of an arbitration, it would be very improper, and strong evidence of corruption and misconduct, for an arbitrator to talk with a party, or his friends, or anybody else, about the merits of the cause. It is better, indeed, that an arbitrator, during the progress of an arbitration, should not even talk with either of the parties about anything (though an arbitrator might doubtless very innocently do this); and the fact that an arbitrator is seen talking with a party to the cause is evidence of fraud, but, taken alone, would not probably have great weight. If an arbitrator at the time of the hearing has any pecuniary interest in the result, this fact is conclusive evidence of such misconduct as amounts to fraud. The pecuniary relations of a party to an arbitrator may be examined, and the fact that a party, in whose favor the award is, is indebted to the arbitrator, is evidence on the question of fraud. It by no means follows that an arbitrator is fraudulent simply because he is a creditor of the party prevailing. The weight of the evidence on this point may depend upon many circumstances,---the amount of indebtedness, the solvency or otherwise of the debtor, the extent and value of the creditor's security, &c. If the debt is small, or abundantly secured, evidence of fraud or of interest in the result would be slight. If the arbitrator in fact has an interest in the award, that is, a pledge of it, before or after the award is made, that fact is evidence of gross partiality, fraud, and corruption." To these instructions the plaintiff excepted.

With reference to the first and second issues presented to the jury, the court instructed them that "the burden of proof was upon the plaintiff, to make out, by a fair balance of evidence, that the arbitrators, or one of them, at the time of the hearing, were biased or committed in favor of the defendant and his cause, or were prejudiced or hostile to the plaintiff and his cause;" to which instructions the plaintiff excepted.

The plaintiff's counsel requested the court to give the following instruction: "If the arbitrators had been prejudiced and biased in favor of the defendant and against the plaintiff, and had so expressed themselves, the presumption is that they continued so to the time of the arbitration; and the burden of proof is upon the defendant in that event to show that the arbitrators had become impartial." The court refused to give the instruction, and the plaintiff's counsel excepted.

No exceptions were taken to the instructions of the court, which related to the third issue. The jury returned a negative answer to each of said issues. The plaintiff's counsel seasonably moved that the

verdict be set aside as being against the evidence, and also because of the misconduct of certain jurors during the trial, and because certain jurors were partial and prejudiced against said Beattie, and had formed and expressed an opinion on the merits of the cause, in Hilliard's favor, before the trial began.

Certain exceptions were taken by the plaintiff to the rulings of the judge upon questions raised upon the evidence of Edward Savage, Edward R. Kent, Dr. Barney, Alexander M. Beattie, and the deposition of Leander Davis.

These exceptions were reserved.

Alexander M. Beattie, the plaintiff, testified that just before the sitting of the November term of court, in 1868, "I came from Montpelier, Vt., to Lancaster, N.H. Mr. Wallace W. Lindsey came to me, at Lancaster, and made a proposition for a reference of the case between me and the defendant. I said I was willing if we could agree upon fair and impartial men, and proposed the names of Judge Poland and Harry Hibbard. Lindsey went and saw Hilliard, and returned saying that Hilliard didn't know those men, and would not agree to them, but that he proposed to leave our matters out to Dr. J. W. Barney, B. F. Hunking, and Edward R. Kent, of Lancaster. I said I rather have somebody out of Lancaster; but, upon Mr. Lindsey assuring me that they were fair and impartial men, I agreed to them, and signed the papers. I had no knowledge or belief that these men were biased or prejudiced against me; did not know that they had taken any part or interest in the matter; supposed that they were fair and impartial men, and heard nothing to the contrary before the arbitration. I had no particular or intimate acquaintance with Lancaster men; had speaking acquaintance with Barney and Kent. Had lived in Lancaster only one week before the affray, and then lived two miles from the village. The hearing was had in the town hall in Lancaster, beginning December 14th, 1868. At an intermission during the trial before the arbitrators, I noticed Edward R. Kent sitting between the defendant and his brother, Henry S. Hilliard, on one of the benches in the north end of the town hall. None but these three were together, and they were talking and laughing. I found them in this situation when I went into the hall after dinner.

In regard to the arbitrator Kent, the plaintiff called (1) Charles E. Benton, who testified as follows: "Know E. R. Kent. Had talk with him a few days after the affray in Kent's store. He gave me an account of it; said plaintiff was to blame. He appeared to be earnest and decided, and said that the plaintiff was wholly in the wrong and defendant in the right; that defendant was justified in doing as much as he did after plaintiff became senseless---in kicking him after he was down---as plaintiff was the aggressor; that defendant was justified in all he did. This talk with Kent was within a few days after the affray. My wife was present. Plaintiff had not been removed to his home in Brunswick, Vt. Kent said he had been to see defendant, and had talked with him about the matter. Think he said he had talked with him about the affray."

(2) Deposition of Mrs. C. E. Benton: "In Kent's store soon after the affray. I heard E. R. Kent tell my husband that he blamed Beattie in regard to it. He said that Hilliard would have been justified if he had killed Beattie. Kent appeared excited and interested. He did not say that Hilliard would have been justified in killing Beattie if what he had heard was true."

(3) George M. Stevens testified that "In the fall of 1868 the latter part of November, about Thanksgiving time, E. R. Kent asked me into his counting-room, and said that the case between these parties was to be arbitrated; that Dr. Barney, B. F. Hunking, and...