Sullivan v. Frink & Co.

3 Iowa 66

Opinion

Woodward, J.

(1)

This award cannot be sustained. One thing in the case seems difficult to understand. One of the affidavits says, the testimony .of Briggs “ was introduced for the purpose of showing the manner in which the injury was inflicted, in order that those arbitrators who were physicians, might judge of the permanency of the injury, and not for the purpose of showing the conduct of the driver.” Now, the article of submission itself states the manner. It says, “Whereas Michael Otis Sullivan was upset in a stage of John Erink & Co., under circumstances rendering John Erink & Co. liable to pay said Sullivan his legal damages, and whereas there is no dispute about the liability,” &c. There was, therefore, no testimony needed to show the manner, if this merely was wanted. And if anything else — if any circumstances were wanted — both parties should have been allowed to be heard in testimony. The plaintiff has cited law, and supported it by sufficient authority, which we have no disposition to controvert.

The principal proposition is, that an award can be set aside only for mistake, tfiisconduct, partiality, or fraud, in the arbitrators. But it must be remembered, that in the legal idea' of misconduct, an evil intention is not a necessary ingredient. The question is, whether that has not been done which prejudiced, or had a strong tendency to prejudice, the rights of one of the parties, even though no wrong intent entered into it. We think something of this character has been done. One of the parties was informed that no testimony, or none on a certain question, pertaining to the matter, would be heard. But such testimony was heard. It is immaterial that the representation was made innocently or ignorantly. The fact was otherwise; and in our opinion, it is immaterial that the mind of the arbitrator, Wilson, was not influenced by it. It is evident that Thomas was, and we are left in uncertainty as to Einley, the other arbitrator. If this testimony had not been heard,. Thomas would not have assented to this award; and we cannot say but that he might have influenced the others to a different conclusion. It is not said that arbitrators must in all cases hear testimony, nor what they must hear, but only that if they receive it on one side, they must on the other. If it is- provided that the arbitrators may take such steps to arrive at the amount of damages as they may deem proper, this does not mean that they may violate the principles of justice. There was misconduct or partiality in the matter of fact, or the result, although, none in the motive. The case of Walter v. Frobisher, 6 Vesey, 70, is very analogous. The chancellor’s opinion indicates the facts sufficiently. He says: “The arbitrator bad examined different witnesses at different-times, in the presence of the parties. He recommended to them not to produce any more witnesses. After that, he heard others on one side. He swears it had no effect on his award. I believe him. He is a most respectable man. But I cannot, from respect for any man, do that which cannot reconcile to general principles.”

The language of the statute, that the award “shall have the force .and effect of the verdict of a jury,” must not be stretched too far. Its principal intent is that judgment may be rendered upon it, as upon a verdict. This is manifested by the words which immediately follow in the same section: “Judgment may be entered, and execution issued aceordingly.”

Judgment reversed.

This cause having been argued before Stockton, J., came upon the bench, he took no part in the decision. Isbell, J., left the bench before its decision.