Moshier v. Shear

• Decision Date: 31 March 1882
• Citation: 102 Ill. 169,40 Am.Rep. 573,1881 WL 14540
• Parties: TIMOTHY MOSHIERv.H. D. SHEAR.
• Court: Illinois Supreme Court

102 Ill. 169

1881 WL 14540 (Ill.)

40 Am.Rep. 573

TIMOTHY MOSHIER

v.H. D. SHEAR.

Supreme Court of Illinois.

Filed at Ottawa Nov. 10, 1881.Rehearing denied March Term, 1882.

WRIT OF ERROR to the Appellate Court for the Second District;-- heard in that court on appeal from the Circuit Court of Knox county; the Hon. JOHN J. GLENN, Judge, presiding.

Messrs. LAWRENCE, CAMPBELL & LAWRENCE, and Messrs. SANFORD & CARNEY, for the plaintiff in error:

Arbitrators should so conduct themselves as to prevent the possibility of improper bias or even suspicion. See Morse on Arbitration, 537. Like a judge or juror, though his judgment of the pending controversy be altogether a just one, yet he is false to his duty if he exposes his mind to the chance or danger of perversion. Strong v. Strong, 9 Cush. 570.

There is nothing singular in the conclusion here suggested, of influences in themselves undue, but altogether short of corruption, being so applied to the mind of another as to impair the validity of an act otherwise lawful. Fox v. Hazelton, 10 Pick. 277; Morse on Arbitration, 106 and 107; Johnson v. Holyoke Water Power Co. 107 Mass. 473; Jones v. Miller, 1 Dall. 205.

After a man is chosen arbitrator, he ought not to hear a word of private ex parte conversation on the subject with either of the parties. A court can not say it had no influence upon his mind. Graham v. Pence, 6 Randolph, 537; Morse on Arbitration, 106; Russell on Awards, 205.

The relations of jurors to litigants are like those of arbitrators, and the same duties are enjoined upon each of them, especially as to keeping their minds free from bias, prejudice, partiality and undue influence. Spurck v. Crook, 19 Ill. 425; Stampofski v. Steffins, 79 Id. 306; Wheeling Gas Co. v. City of Wheeling, 5 W. Va. 494.

All the arbitrators must act together. The parties are entitled to the arguments, experience and judgment of each at every stage of the proceedings, and their bearing and influence on the minds of the others; and an award will be set aside for the intoxication of any one of them, rendering him incompetent. Smith v. Smith, 28 Ill. 60; Morse on Arbitration, 209; Russell on Awards, 537.

It is held that to the validity of an award, under a common law submission to three persons, upon a stipulation to abide the determination of any two of them, it is essential that all three be present at the hearing of the parties. Thompson v. Mitchell, 35 Me. 281; Rixford et al. v. Nye, 20 Vt. 132; Bliss v. Hay, 2 Tyler, (Vt.) 304. And the same ground that will induce a court to set aside a verdict of a jury and grant a new trial, will induce them to vacate an award. Williams v. Craig, 1 Dallas,--; Bassett's case, 2 Cow. 458; Van Cortland v. Underhill, 17 Johns. 405.

Messrs. MCKENZIE & CALKINS, for the defendant in error:

Arbitrators can not be heard to say to what matters they gave weight in their deliberations, what processes of reasoning they followed, or what particular evidence influenced them. Denman v. Bayless, 22 Ill. 333; Stone v. Atwood, 28 Id. 43; Pulliam v. Pensoneau, 33 Id. 378; Claycomb v. Butler, 36 Id. 103; Tucker v. Page, 69 Id. 183; Hubbell v. Bissell, 2 Allen, 197; Bigelow v. Maynard, 4 Cush. 321; Ward v. Gould, 5 Pick. 291; Morse on Arbitration and Award, 562, 568.

In the absence of affirmative evidence of fraud, partiality or unfairness, which are never presumed, every intendment is in favor of the award. Root v. Renwich, 15 Ill. 463; Haywood v. Harmon, 17 Id. 481.

A previous knowledge of the facts by an arbitrator will not vitiate his award. Graves v. Fisher, 15 Me. 54.

While arbitrators must act fairly, their intercourse with the parties upon the subject of the arbitration, untainted with fraud, can not affect their award. Flatter v. McDermitt, 25 Ind. 326.

Although one arbitrator may have acted fraudulently and corruptly, if the other two acted honestly the award must stand, ( Plummer v. Saunders, 55 N. H. 28,) so that one is related to the other party. Davis v. Forchie, 34 Ala. 107.

Courts will not set aside an award because the compounder misconstrued a deposition, nor because he had in his possession vouchers relative to the case that he had received prior to the time he was chosen. Bird v. Laycock, 7 La. Ann. 171.

The court should not set aside the award, and as to acts held not such misconduct as to justify setting the same aside, counsel cited many other cases, among which are Fisher v. Towner, 14 Conn. 26; Wheeling Gas Co. v. City of Wheeling, 5 W. Va. 492; Herrick v. Blair, 1 Johns. Ch. 101; Devereaux v. Burgman, 11 Ind. 490; Walls v. Wilson,28 Pa. St. 514; May v. Yancy, 4 Leigh, 462; Rheem v. Allison, 2 S. & R. 113; Ellmaker v. Buckley, 16 Id. 72; Dougherty v. McWhorter, 7 Yerg. 254; Brown v. Leavitt, 26 Me. 251; Morville v. American Tract Society, 12 Mass. 140.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The parties to this record had business transactions running through a number of years, and being unable to adjust their differences, they agreed to submit them to the award of three arbitrators. They were duly selected, and heard the evidence and the parties, and found and published an award that plaintiff in error pay to defendant in error $1100. By agreement this award was set aside, and the matters again submitted to the award of Henry Sisson, John Becker, and Jonathan Hubbell. After a hearing of the witnesses they published an award that plaintiff in error pay to defendant in error $704.62. Thereupon Moshier filed this bill to set aside the award and enjoin its collection.

The bill alleges several grounds, among which is the charge of misconduct of Hubbell, one of the arbitrators. It charges that he, after being selected to act, saw Stephens, who had been one of the arbitrators when the case was previously tried, and was fully informed as to all of the particulars of the controversy, and talked freely with him in reference to the case; that Hubbell was thereby prejudiced, and rendered incompetent to act as an arbitrator; that plaintiff in error was not informed of the fact, nor did he learn it, until after the award was executed and published. He charges that by reason of the misconduct of this arbitrator he was greatly injured and wronged. On a hearing in the circuit court it was found that the arbitrator was incompetent to act, the award was not, for that reason, binding, and the court decreed that it be vacated and set aside. Thereupon Shear appealed to the Appellate Court for the Second District, where the decree was reversed, but the case was not remanded to the circuit court, whereby its decree is final. Thereupon Moshier prosecutes error, and urges a reversal of the decree of the Appellate Court.

In the view we take of this case, it becomes necessary to consider but one question, and that is, whether the misconduct of Hubbell was such as to require the award to be set aside and vacated. That his having a full, free and unrerestricted conversation with Stephens, who was fully informed as to all of its details, was misconduct, is not denied. After being selected, it is the duty of an arbitrator, like a juror, to act fairly and impartially between the parties and on the evidence adduced before them on the trial, and entirely independent of all outside influences, and what will be misconduct on the part of a juror will, as a general rule, be such on the part of an arbitrator. Neither has a right to learn facts except as brought to his attention on the trial. It is gross misconduct for either to seek evidence or the opinions of others in regard to the case, or anything material to its decision in another mode. It is virtually conceded that had defendant in error conversed with the arbitrator, the award being in his favor, it would have been set aside, on the presumption that it was obtained by improper influence, and the same would be equally true had an agent or the...