Bisnovich v. British American Assur. Co.

• Decision Date: 08 January 1924
• Citation: 100 Conn. 240,123 A. 339
• Parties: BISNOVICH ET AL. v. BRITISH AMERICAN ASSUR. CO. BISNOVICH ET AL. v. GLOBE & RUTGERS FIRE INS. CO.
• Court: Connecticut Supreme Court

123 A. 339

100 Conn. 240

BISNOVICH ET AL. v. BRITISH AMERICAN ASSUR. CO.

BISNOVICH ET AL. v. GLOBE & RUTGERS FIRE INS. CO.

Supreme Court of Errors of Connecticut.

January 8, 1924

Appeal from Superior Court, New Haven County; Newell Jennings Judge.

Separate actions by Morris Bisnovich and another, copartners operating under the trade-name of the Connecticut Apple Products Company, against the British American Assurance Company and the Globe & Rutgers Fire Insurance Company. Consolidated for trial. Judgment for defendants, and plaintiffs appeal. No error.

Admissions of an arbitrator, made after the filing of an award, are inadmissible in proceedings to set it aside.

These actions, heard together by agreement of the parties, claimed as relief that the award of the appraisers should be set aside, and $10,000 damages. Plaintiffs at the time of bringing suit were copartners, operating under the trade-name of the Connecticut Apple Products Company, in the manufacture and sale of cider. Pending the disposition of the actions they incorporated their enterprise as the Connecticut Apple Products Company, and the corporation was substituted by order of court as plaintiff in each of the pending actions. In December, 1921, a fire occurred upon the property of the plaintiffs, which destroyed a building and substantially all of its contents. Proofs of the loss were duly furnished to both of the defendants in accordance with the terms of the policies of insurance. The plaintiffs and defendants failed to agree as to the amount of the loss, and thereupon by written agreement submitted the same to arbitration as provided in the policies. Each party selected an appraiser and the two appraisers thus selected chose one Maurice E Wheeler as umpire. The latter, together with the appraiser selected by the defendants, made an award in writing aggregating in both cases $3,367, which award the appraiser selected by the plaintiffs refused to sign. This award the defendants have ever since been willing to pay, but the plaintiffs have been unwilling to accept the same in full payment for their losses, and no payment of losses has ever been made.

Regarding the conduct of the appraisers, it is alleged in the complaint in these actions that the appraiser selected by defendants was in their employ, a partisan, biased and prejudiced; that the appraisers failed to make a proper appraisal in detail as regards the property destroyed; that they neglected to hear evidence of the plaintiffs or to afford to them an opportunity to present the same, and made their award without hearing any evidence; that the umpire likewise after his appointment afforded the plaintiffs no opportunity to furnish evidence or information as to the matters contained in the proof of loss, and sought from the plaintiffs no information as to the property destroyed or the extent of the loss; that the umpire and the appraiser appointed by defendants in every way disregarded the plaintiffs and the appraiser appointed by them, although frequently requested to give attention to matters brought to their notice, and in general gave little time to the study and investigation of the matters connected with the loss, performed their duties in a negligent and inadequate manner, and secretly and improperly agreed upon their award without regard to the appraiser appointed by plaintiffs, and thus were guilty of misconduct which should vitiate their award.

During the trial of the action one Witkowski, a witness for the plaintiffs, was shown a paper purporting to be a sketch of the mill building before its destruction by fire, and asked if it was a fair representation of the building, whereupon he answered that it was a fair rough sketch, that he did not make it, but that it was made by a man who was on the premises before the witness was there, and who knew everything with regard to it. This sketch was offered by counsel " for what it is worth." Defendants objected to its reception, the court excluded it, and exception was taken.

After the award was made, in December, 1921, the plaintiffs protested against the amount of the award, and soon after it was signed on December 28, at night, Bisnovich went to the house of Wheeler, the umpire, with the appraiser appointed by plaintiffs and another person, and Bisnovich, as a witness at the hearing of the action, testified to the conversation between himself and Wheeler. Bisnovich requested from Wheeler, who was a builder, an estimate upon the cost of erecting a building to take the place of the one burned, and Wheeler said he would have to have a little while to figure it out. Bisnovich then said, " Well, it didn't take you so very long to figure out the destroying of the building," whereupon Wheeler began to reply, commencing with the words, " Well, I'll tell you" --when objection was made by defendants to the reception of any conversation between Wheeler and the witness. The conversation was claimed on the ground that it would tend to show by the admissions of Wheeler that he had improperly performed his duties as umpire in the manner charged in the complaint. The court excluded the evidence on the ground that Wheeler was not a party to the action, nor in privity with the parties, nor the agent of any of them, and that the claimed testimony would be pure hearsay, that the conduct of Wheeler must and could be shown by independent evidence, and that if he went upon the stand his statements could be shown as contradictory to any evidence he might give bearing upon the point involved. The plaintiffs excepted, and their counsel stated that the exclusion of the testimony just offered, and of other like testimony which they were about to introduce, would render it impracticable for them to proceed with the trial, and plaintiffs rested their case.

The defendants offered no evidence.

Some time prior to the trial of these cases, the plaintiffs, on May 13, 1922, had claimed the same for the jury docket and jury trial list, and the cases had been placed upon the jury assignment list and claimed for trial. When the plaintiffs claimed the cases for assignment, the court (Kellogg, J.) ruled that they should be stricken from the jury trial list, inasmuch as equitable issues were involved, and ruled that they should be first tried to the court. The docket entry in each action read " Cause ordered off the jury trial list." Thereafter counsel for plaintiffs, on March 21, 1923, had claimed the actions for the court trial list. Before commencing the trial of the causes, plaintiff's counsel recounted the history of the cases, and stated that by placing the same upon the court trial list they did so because that was the only way of getting in position for trial, since some issues at least were to be tried to the court by reason of the ruling by Judge Kellogg, and that their claim was that their rights to a jury trial had not been waived by placing the cases on the court trial list, and that this action was taken with a view of trying such issues as the court might determine to be proper, and after these had been determined to try to the jury such issues as might remain. The trial judge held that, as the record stood, he would proceed with the trial of the actions, saying in his statement of ruling that he intended to reserve for the defendants such rights as they might have.

The court rendered judgment for defendants in both cases, and plaintiffs assign error as follows: (1) In the ruling of the court as to the admissibility of evidence; (2) in holding that the actions should be stricken from the jury docket and jury trial list, and should first be tried to the court; (3) in ruling that the cases should be tried as court cases on all the issues. Further facts appear in the opinion.

Lawrence L. Lewis and Richardson Bronson, both of Waterbury, for appellants.

J. Gilbert Calhoun, of Hartford, for appellees.

KEELER, J. (after stating the facts as above).

The question of the admissibility of the sketch of the burned building was a preliminary one for the trial court, to determine its accuracy and verification as established by the testimony accompanying the offer of the evidence. We have several times passed upon this question in connection with the admissibility of photographs, and the principle is the same. Dyson v. N.Y. & N.E. R. Co., 57 Conn. 9, 24, 17 A. 137, 14 Am.St.Rep. 82; McGar, Adm'r, v. Bristol, 71 Conn. 652, 655, 42 A. 1000; Cunningham, Adm'r, v. Fair Haven & Westville R. Co., 72 Conn. 244, 249, 43 A. 1047; Smith v. Hausdorf, 92 Conn. 579, 582, 103 A. 939.

The prevalent rule is in accord with that above stated. 1 Wigmore, Evidence (1st Ed.) § 5794 (2); 22 C.J. Evidence, § 1125, p. 921.

It is suggested in the brief of plaintiff that the sketch has testimonial as distinguished from evidential value, in that it might have assisted the witness in explaining and illustrating his testimony. It was offered...