Walsh v. Wyman Lunch Co.

• Decision Date: 06 March 1923
• Citation: 244 Mass. 407,138 N.E. 389
• Parties: WALSH v. WYMAN LUNCH CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

244 Mass. 407

138 N.E. 389

WALSH

v.WYMAN LUNCH CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 6, 1923.

Exceptions from Superior Court, Suffolk County; Stanley E. Qua, Judge.

Action of tort by Joseph M. Walsh, by next friend, against the Wyman Lunch Company and the Floyd Lunch Company for personal injuries. Verdict for plaintiff against the defendant Floyd Lunch Company for $2,500, and such defendant brings exceptions. Exceptions overruled.

It was agreed that there was evidence on which the jury was warranted in finding defendant liable. Defendant's exceptions related to the admission of testimony given by plaintiff on redirect examination, and to the admission, in part, of a paper prepared by him in his own handwriting, from which his counsel prepared the answers to defendant's interrogatories, which were filed.

John M. Maloney and Frank J. Maloney, both of Boston, for plaintiffs.

Brown & Came, of Boston, for defendants.

BRALEY, J.

The plaintiffs seek to recover in thirteen separate actions, for loss of property covered by policies of fire insurance issued by the respective defendants. By order of the trial court the cases were tried together; and verdicts having been returned for the plaintiffs in each case, the defendants presented and the judge allowed one bill of exceptions, stating in his certificate that the plaintiffs contended that each defendant should have presented a separate bill of exceptions, and as this had not been done the exceptions were not seasonably filed and should be disallowed.

It was his duty either to allow or disallow the exceptions, giving if he deemed necessary his reasons in the certificate, and if allowed the plaintiffs could move in this court that the exceptions be dismissed for want of jurisdiction. Conway v. Callahan, 121 Mass. 165;Cooney v. Burt, 123 Mass. 579;Hale v. Rice, 124 Mass. 292;Browne v. Hale, 127 Mass. 158; R. L. c. 173, § 106.

The motion to dismiss on this ground filed in the trial court, although fully set forth in the certificate, has never been passed upon and cannot be considered. But inasmuch as the question whether the exceptions were properly allowed is presented by the certificate, and has been argued by counsel, it should be decided.

The actions although brought for different causes are for the recovery of one loss common to all the policies, and with the exception that the verdicts, judgments and rescripts must be separate, a joint trial undoubtedly tended to benefit the parties saving costs and expenses and preventing delay, as well as tending to lessen the possibility of mistrials. Lumiansky v. Tessier, 213 Mass. 182, 188, 99 N. E. 1051, Ann. Cas. 1913E. 1049.

If these considerations were sufficient to justify the order of a joint trial before a jury, we perceive no sufficient reason why questions of law cannot be presented to this court by a single bill of exceptions wherein all parties aggrieved are joined. Indeed this practice has often been recognized and sanctioned without comment. Locke v. Royal Ins. Co., 220 Mass. 202, 107 N. E. 911;Whitcomb v. Boston Dairy Co., 218 Mass. 24, 105 N. E. 554;Christiansen v. Lannin, 215 Mass. 322, 102 N. E. 419;Rockwell v. Hamburg-Bremen Fire Ins. Co., 212 Mass. 318, 98 N. E. 1086;Greenough v. Phoenix Ins. Co. of Hartford, 206 Mass. 247, 92 N. E. 447,138 Am. St. Rep. 383;Parker v. Middlesex Assurance Co., 179 Mass. 528, 61 N. E. 215.

The exceptions being properly here, we come to the questions raised by the record.

While conceding that the policies were in force at the date of the fire, and that proper proofs of loss had been furnished, and that referees to ascertain the amount of loss had been chosen as provided in each policy and awards had been made, the defendants having

[138 N.E. 942]

declined to accept the awards rested their defense on the grounds stated in the following issues:

‘Whether or not the plaintiff set the fire in question or caused it to be set;’ ‘whether or not the award of the referees * * * was valid,’ and ‘whether or not a certain policy which had been issued by the London Assurance Corporation and which purported to cover plans, patterns, drawings and blue prints for $1,500 and the machines and parts of machinery for $1,000 had been legally canceled before the fire.’

And these issues properly phrased having been submitted to the jury they answered the first in the negative; and the second and third in the affirmative.

It will be convenient to dispose of the first and third issues before considering the second issue around which the principal controversy centers.

The brief of counsel for the defendants states:

‘That the evidence which tended to show that the plaintiff William C. Doherty set the fire in question is not set forth in the bill because it seemed to us to have no bearing on the only exception which we took relative to the matter, and because from the fact that the question was left to the jury, it is to be presumed there was evidence to justify it.’

But this assumption of wrongful conduct cannot be made, and in the absence of such evidence as a foundation, the relevancy of the offer of proof which was excluded and is the sole exception under this issue cannot be ascertained and determined. Paquette v. Prudential Life Ins. Co., 193 Mass. 215, 222, 79 N. E. 250;Barron v. International Trust Co., 184 Mass. 440, 68 N. E. 831;Whittemore v. N. Y., N. H. & H. R. R., 191 Mass. 392, 77 N. E. 717.

The judge also rightly declined to rule, that there was no evidence from which the jury could find the policy issued on the property by the London Assurance Corporation had been canceled, and that, if the policies issued by the defendants were in force, then the policy of that company was also in full force and effect.

It was for the jury under suitable instructions which were given, to determine from the letter of the company's agent to the plaintiffs demanding at the request of the company the policy for cancellation, and from what occurred at a subsequent interview between him and one of the plaintiffs, whether there had been a mutual agreement and understanding that the policy had been terminated. Smith v. Scottish Union Nat. Ins. Co., 200 Mass. 50, 57, 85 N. E. 841;Bennett v. City Ins. Co., 115 Mass. 241, 243;Alliance Mut. Ins. Co. v. Swift, 10 Cush. 433.

The declarations having alleged, that in accordance with the requirements of the policies the amount of loss had been fixed by referees who have made their award in writing, and that upon making the award each of the defendants became bound to pay its proportionate part of the loss, the plaintiffs were required to offer evidence of a valid award as a condition precedent to recovery. St. 1907, c. 576, § 60, as amended by St. 1911, c. 406. Union Ins. for Savs. v. Phoenix Ins. Co., 196 Mass. 230-234, 235, 81 N. E. 994,14 L. R. A. (N. S.) 459,13 Ann. Cas. 433; Hanley v. AEtna Ins. Co., 215 Mass. 42k, 431, 102 N. E. 641, Ann. Cas. 1914D, 53;Second Soc. of Universalists v. Royal Ins. Co., 221 Mass. 518, 109 N. E. 384.

[6][7] It is a general rule even if the letter, properly admitted in evidence, of plaintiffs' counsel replying to a letter from defendants' counsel previously introduced tends to show a contrary practice, that referees or arbitrators clothed with authority and the power of deciding controverted questions between party and party should be disinterested and impartial unless with the mutual understanding of the parties they are purposely selected as partisans. Hills v. Home Ins. Co., 129 Mass. 345;Hanley v. AEtna Ins. Co., 215 Mass. 425, 430, 102 N. E. 641, Ann. Cas. 1914D, 53;Morville v. Am. Tract Soc., 123 Mass. 129, 140,25 Am. Rep. 40;Williams v. Chicago, Santa Fé & Cal. Ry., 112 Mo. 463, 486, 489, 20 S. W. 631,34 Am. St. Rep. 403. And the defendants under our law can impeach an award on the ground the refereeswere guilty of misconduct, instead of resorting to a bill in equity to have it set aside. Bean v. Farnam, 6 Pick. 269, 273.

[8] The jury would have been warranted in finding that the plaintiffs voluntarily paid for ‘lunches' furnished to the referees and offered them cigars, and that at the hearings testimony as to the amount of premiums paid for insurance was admitted in evidence, and plaintiffs' counsel were permitted to argue that the defendants' agent by whom the insurance was solicited knew the cost to the plaintiffs of the insured property and that a large amount in premiums having been paid the defendants were guilty of fraud if they declined payment of the loss suffered. But the error, if error there was in the admission of evidence and in the scope allowed counsel in argument, is not reviewable. The referees were unhampered by any restrictions or conditions and their decisions on all necessary questions of law, and their findings of fact involved in the question or controversy submitted, are final. Bigelow v. Newell, 10 Pick. 348;Boston Water Power Co. v. Gray, 6 Metc. 131;Smith v. B. & M. R. R., 16 Gray, 521;Rundell v. La Fleur, 6 Allen, 480;Mickles v. Thayer, 14 Allen, 114;Gardner v. Boston, 120 Mass. 266, 267; Goodman v. Sayres, 2 Jac. & W. 249, 259.

[9] It is also settled that where the defeated party is aware of the existence of conditions which may influence the judgment of an arbitrator or referee, or previous to the hearing has sufficient notice of the partiality of one or more of the referees to put him upon inquiry but remains silent, he cannot afterwards object to the award or report on the ground of partiality. Fox v. Hazelton, 10 Pick. 275, 277;

[138 N.E. 943]

New England Trust Co. v. Abbott, 162 Mass. 148, 153, 38 N. E. 432,27 L. R. A. 271; Moseley v. Simpson, L. R. 16 Eq. 226.

The furnishing of the first luncheon was with the knowledge of the defendants' counsel who made no objection to proceeding before the referees, but until the day after the award had been published counsel did not know of the second luncheon at which cigars also were supplied.

[10][11] The...