Bourisk v. Mohican Co.

• Decision Date: 17 November 1934
• Citation: 175 A. 345
• Parties: BOURISK v. MOHICAN CO. (two cases).
• Court: Maine Supreme Court

175 A. 345

BOURISK

v. MOHICAN CO. (two cases).

Supreme Judicial Court of Maine.

Nov. 17, 1934.

Exceptions from Superior Court, Androscoggin County.

Two actions by Nellie M. Bourisk and by John M. Bourisk against the Mohican Company, tried before referees by agreement of the parties. Plaintiffs' motions to recommit for further hearing the referees' report in favor of the defendant were granted, and the defendant brings exceptions.

Exceptions sustained.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

Harris M. Isaacson, Benjamin L. Berman, and David V. Berman, all of Lewiston, for plaintiffs.

Locke, Perkins & Williamson, of Augusta, for defendant.

STURGIS, Justice.

These actions for negligence, by agreement of the parties, were referred under rule of court with the right of exceptions to rulings of law reserved. The referees found for the defendant. At the next term, the plaintiffs moved that the referees' report be recommit ted for further hearing upon the grounds of newly-discovered evidence. The motions were granted and exceptions reserved.

The plaintiffs' motions to recommit allege that since the former hearing an unnamed witness, now resident in another jurisdiction, has been discovered who saw the accident out of which these actions arise and can testify as to material facts supporting the plaintiffs' claims. The motions give a resume of "the facts to be developed by such newly discovered evidence," but do not otherwise state the particular facts the witness is expected to prove or the grounds of such expectation.

The bill of exceptions shows that no transcript of the evidence offered at the former hearing was presented or available. The referees made no findings of fact in their reports. The motions were supported only by the testimony of one of the attorneys of record for the plaintiffs who, taking the stand as a witness, against objection, was allowed to summarize a part of the evidence taken out before the referees and state his opinion of its scope and effect. He testified that he was unable to locate the newly discovered witness before or during the hearing, but later did so, obtained a personal interview, and took a written statement from him. Although opposing counsel requested that the statement be produced, the court made no order and it was withheld. The attorney was asked to repeat the statement made by the new witness, and his answer was, "We sincerely and in good faith believe that this witness will substantiate the following statement of facts," which were then recited at length. The attorney further stated that in his opinion the testimony of the new witness "may well support the plaintiffs' burden of proof" of the disputed allegations, and "may cause a different conclusion to be arrived at by the triors of fact." He asserted that this testimony would lay a foundation for the introduction of pertinent evidence not otherwise admissible.

Upon a consideration of the pleadings and report and the sworn statements of counsel as already outlined, the presiding Justice ordered the cases recommitted to the same referees "for further hearing of the newly discovered evidence and such other evidence as the newly discovered evidence makes material and admissible."

It was early decided, and has been since uniformly held, that reports of referees made under a rule of court, pursuant to the statute, may be recommitted by the court from which the rule issued. The practice of recommitting reports has not been "confined to the amendment of mere matters of form, but has extended to the substantial merits of the matter in controversy, whenever a re-examination of the whole subject has been deemed expedient." Cumberland v. Inhabitants of North Yarmouth, 4 Greenl. (4 Me.) 459; Harris v. Seal, 23 Me. 435, 437; Mayberry v. Morse, 39 Me. 105; Waldo County Farmers' Union v. Hunt, 117 Me. 217, 103 A. 164. "Newlydiscovered evidence may be a good reason for a recommitment." North Yarmouth v. Inhabitants of Cumberland, 6 Greenl. (6 Me.) 21, 25.

The question of recommitting a report of referees is addressed to the discretion of the court, and it has been held in some cases that an order to recommit is not open to exceptions. Walker v. Sanborn, 8 Greenl. (8 Me.) 288; Waldo County Farmers' Union v. Hunt, supra. That statement of the rule is too broad. The discretionary power of the court to recommit reports of referees for further consideration "must be exercised judicially, and upon consideration of the facts and circumstances of the case." Long v. Rhodes, 36 Me. 108. And it is well settled that judicial discretion must be exercised soundly according to the well-established rules of practice and procedure, a discretion guided by the law so as to work out substantial equity and justice. It is magisterial, not personal discretion. When some palpable error has been committed or an apparent injustice has been done, the ruling is reviewable on exceptions. Charlesworth v. American Express Company, 117 Me. 219, 103 A. 358; Fournier (Hutchins) v. Tea Company, 128 Me. 393, 148 A. 147. It is when judicial discretion is exercised in accordance with this rule that it is final and conclusive. Chasse v. Soucier, 118 Me. 62, 63, 105 A. 853.

The submission of cases to referees is and has long been a common practice. It permits the parties to have their controversies heard in a tribunal of their own selection and more or less at their own convenience. If the submission is general and unrestricted, it insures a speedy and generally satisfactory termination of the litigation. This is usually true even when exceptions on questions of law are reserved. A hearing and report of referees is equivalent to a finding by a single Justice with jury waived, or the verdict of a jury. Hanson v. Loan & Building Association, 132 Me. 397, 171 A. 627. The report, as...