Higgins-Wall-Dyer Co. v. City of St. Louis

• Decision Date: 22 October 1932
• Citation: 53 S.W.2d 864,331 Mo. 454
• Parties: Higgins-Wall-Dyer Company, a Corporation, and American Surety Company of New York, a Corporation, v. City of St. Louis, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

53 S.W.2d 864

331 Mo. 454

Higgins-Wall-Dyer Company, a Corporation, and American Surety Company of New York, a Corporation, v. City of St. Louis, a Municipal Corporation, Appellant

Supreme Court of Missouri

October 22, 1932

Appeal from Circuit Court of City of St. Louis; Hon. M. N Sale, Judge.

Affirmed.

Julius T. Muench and Oliver Senti for appellant.

(1) At common law it is the duty of all the arbitrators to hear the evidence and allegations, and to participate in the deliberations and in the making of the award, or at least be given an opportunity to do so. 2 R. C. L. 384; 5 C. J. 99; Haven v. Winnesimmet Co., 11 Allen, 377, 87 Am. Dec 723; Morse on Arbitration and Award, 151. (2) Under the statute all arbitrators must hear the evidence and allegations, but an award made, or any other act done, by a majority is valid unless the parties otherwise agree. Sec 14021, R. S. 1929 (formerly Sec. 600, R. S. 1919). (3) The statute being in part declaratory of the common law, it is to be construed according to the common law, except so far as its clear intent is to change the common law. 36 Cyc. 1145. (4) It must also be construed together with Section 14025, which authorizes the vacation of the award where the arbitrators exceed or imperfectly execute their powers. (5) To construe Section 14021 literally would defeat the purpose of the parties in submitting their controversy to arbitration. (6) Where the literal construction of a statute leads to harsh or unreasonable results, or its meaning is doubtful, it will be construed according to the legislative intent. St. Louis v. Murta, 283 Mo. 81.

Bryan, Williams, Cave & McPheeters for respondents.

(1) The only evidence in this record of this case which at all tends to prove that Judge Haid did not act as an arbitrator or tends to prove that he did not fully discuss the entire controversy and did not agree to the award which was made is the one page printed affidavit of the judge himself. So, if it had been necessary for him to have continued to act as an arbitrator after hearing the evidence, which we deny, and if it could be inferred from his affidavit that he did not discuss the award and agree to it, which is very doubtful, still the judgment of confirmation was the correct one for an arbitrator may not impeach his award. Ellison v. Weathers, 78 Mo. 115; Pratte v. Coffman, 33 Mo. 72; State v. Underwood, 57 Mo. 40; McFarland v. Bellows, 49 Mo. 311; State v. Coupenhaver, 39 Mo. 430; Sawyer v. Railroad Co., 37 Mo. 241; Miller v. Railroad Co., 5 Mo.App. 471; Taylor v. Scott, 26 Mo.App. 252; Reeves v. McGlochlin, 65 Mo.App. 542; Campbell v. Western, 3 Paige, 137; Lehigh Coal etc. Co. v. Zehner, 25 Pa. Co. 126; Corrigan v. Rockefeller, 67 Oh. St. 354; Tucker v. Page, 69 Ill. 179; Miss. Cotton Oil Co. v. Buster, 84 Miss. 91; Van Winkle v. Fire Ins. Co., 55 W.Va. 286; Mauson v. Wilcox, 140 Cal. 206; Withington v. Warren, 51 Mass. 431; Levine v. Ins. Co., 66 Minn. 138; Clark Millinery Co. v. Ins. Co., 160 N.C. 139; Evans v. Edenfield, 7 Ga.App. 175; City of Eau Claire v. Eau Claire, 137 Wis. 517; Steve v. Baldwin, 226 Ill. 338; Bisnovich v. Assur. Co., 100 Conn. 240; Collings Car Co. v. Ins. Co., 86 N.J.Eq. 53. (2) The act of the majority of the arbitrators, separate and apart from the minority, in deliberating and conferring and reaching a tentative agreement as to what the award should be, which tentative agreement was subsequently modified at conferences of all the arbitrators, did not deprive the defendant of any of its rights, and such action was and is expressly authorized and sanctioned by statute. Paramore v. Lindsey, 63 Mo. 67; Chap. 122, R. S. 1929; Secs. 14017, 14018, 14019, 14020, 14021 and 14022, R. S. 1929; Thatcher Implement & Merc. Co. v. Brubaker, 193 Mo.App. 634; Bunnell v. Reynolds, 205 Mo.App. 654; Williams v. Perkins, 83 Mo. 384; Bridgman v. Bridgman, 23 Mo. 273; Hamlin v. Duke, 28 Mo. 167. (3) The court did not err in not reviewing and passing upon the arbitrators' conclusions of law for the following reasons: (a) The courts are not authorized to set aside an award for errors of law made by the arbitrators; (b) the record does not show upon its face that the arbitrators erred in any way; and (c) no evidence was introduced showing that the arbitrators erred in any way. Compton v. Construction Co., 315 Mo. 1089; Sec. 14025, R. S. 1929; Newman v. La Baume, 9 Mo. 35; Vaughn v. Graham, 11 Mo. 576; Bigelow v. Newall, 10 Pick. 348; Mickels v. Thayer, 14 Allen, 114; Baker v. Crockett, Hard., 388; Matter of King, 2 K. B. 32; Shepard v. Watrous, 3 Cai. 166; Sanborn v. Murphy, 50 N.H. 65; Perriman v. Steggal, 9 Bing. 679; Campbell v. Turnbow, 1 Price, 81; Wilson v. King, 2 Cromp. & M. 689; Ward v. American Bank, 7 Metc. 489; White Star Mining Co. v. Hultberg, 220 Ill. 578; Phillips v. Rouss, 7 N.Y. 378; Dodson v. Railroad, 78 N.Y. 582; Elliott v. Coffin, 106 Mo. 365; Raymond v. Ins. Co., 114 Mich. 386; Wilkins v. Allen, 62 N.Y.S. 1068; Rounds v. Aiken Mfg. Co., 58 S.C. 299; Phansuf v. Corey, 190 Mass. 237; Beckett v. Wiglesworth, 178 S.W. 900; Fernandez Grain Co. v. Hunter, 217 Mo.App. 196; Bridgman v. Bridgman, 23 Mo. 274; Reily v. Russelll, 34 Mo. 527; Squires v. Anderson, 54 Mo. 197; Taylor v. Scott, 26 Mo.App. 251; Reeves v. McGlochlin, 65 Mo.App. 642; Bennett's Admr. v. Russell's Admr., 34 Mo. 524; Hyeronimus v. Allison, 52 Mo. 102; Mitchell v. Curran, 1 Mo.App. 453; State ex rel. v. Merchants Exchange, 2 Mo.App. 96; Thatcher Imp. & Merc. Co. v. Brubaker, 193 Mo.App. 627.

OPINION

Gantt, J.

Statutory arbitration of a controversy which was the subject of two suits pending in the Circuit Court of the City of St. Louis. The city (designated defendant) contracted with the Higgins-Wall-Dyer Company, as principal (designated plaintiff), and the American Surety Company, as surety, for certain drainage construction and the alteration of a certain bridge. Defendant claimed that plaintiff was not proceeding at the speed prescribed by the contract. It stopped the work of plaintiff under the contract and completed said drainage construction and alteration of said bridge. The claims of plaintiff against defendant and counterclaims of defendant against plaintiff, which followed, were the matters involved in said suits and submitted to arbitration.

Joseph Lennon was chosen arbitrator by plaintiff and the American Surety Company. Matthew J. Holland was chosen arbitrator by defendant. George F. Haid was chosen arbitrator by Lennon and Holland. On consideration of the evidence and briefs of counsel the arbitrators found against defendant and awarded plaintiff $ 59,620.84. In due course and in due form the award was filed in the circuit court. Plaintiff and the American Surety Company filed a motion to confirm the award. Defendant then filed a motion to vacate the award. In the motion it alleged:

"1. That the arbitrators herein were guilty of misbehavior, by which the rights of the City of St. Louis have been prejudiced, in this, to-wit: That two of said arbitrators, Mat. J. Holland and Joseph A. Lennon, after the hearing of testimony, met independently and to the exclusion of the other arbitrator, George F. Haid, and deliberated and reached an agreement upon those matters contained and decided in the award herein without consulting with the said George F. Haid and without notifying him thereof, all as shown by the affidavits filed herein; that although it was intended by the city of St. Louis and by said arbitrator, George F. Haid, that he take part in the deliberations, the other two arbitrators gave him no opportunity to do so, but proceeded therewith and decided and reached an agreement upon those matters contained in said award; that their actions in so doing constituted a legal fraud upon the city of St. Louis and illegally deprived said city of its right to the presence and effect of the arguments, experience and judgment of each arbitrator during the whole proceeding and to the unanimous participation therein of all the arbitrators; and that thereby said award was rendered illegal, void, fraudulent and of no binding effect.

"2. That the arbitrators intended to follow the law in making said award, and that it was their assumption and view that their findings and conclusions of law would be subject to review by the court, all as shown by the affidavits of said arbitrators attached hereto, but that said award, as appears from the face thereof, is against the law, is erroneous and is based on erroneous and mistaken conclusions of law."

In support of this motion defendant filed affidavits of the arbitrators. Plaintiff and the American Surety Company filed a motion to strike from the files these affidavits on the ground that the affidavits were inconsistent with and contradictory to the "solemn and deliberate award filed in this cause and incompetent to impeach the award." The motion was overruled. Plaintiff and the American Surety Company excepted to said ruling. The motion to vacate and the motion to confirm were heard together by the court. The affidavits of the arbitrators, with the testimony of arbitrators Lennon and Holland, considered as additional affidavits, was the only testimony at the hearing on the motions.

The court overruled the motion to vacate, and after reducing the award to $ 49,811, sustained the motion to confirm and rendered judgment for plaintiff and against defendant for said sum with interest and costs amounting in all to $ 53,463.44. The judgment discharged the American Surety Company of liability on the contract and bond and discharged the defendant of liability on the contract, other than the payment of said $ 53,463.44. Defendant appealed from the judgment.

The evidence on the motion to vacate follows:

George F. Haid testified by affidavit as...