South Carolina Rail Road v. Moore , 28 Ga. 398 ( 1859 )

By the Court.

Lumpkin, J.,

delivering the opinion.

1. The first question made in the record and discussed by counsel is, was this an arbitration under the rule of court, or under the act of 1856; or both ?

There was a case pending in court between these parties, and there was a rule of reference made of it by order of the court, with the consent of parties. Subsequently there was an agreement entered into out of court, to submit, not only the matters embraced in the writ, but other matters in dispute not included therein, but germain to them. The agreement to submit provides distinctly, that the arbitration shall be subject to the rule of reference taken in the case, as well as' to the terms and provisions of the act of 1856.

Now, the rule of reference expressly declares, that the award may be excepted to for “fraud, accident, or mistake.” And yet counsel for the defendants in error insist, and so the court decided, that in as much as the act of 1856, authorizes an award to be excepted to only for fraud or corruption in the arbitrators, that the alleged mistake in this award, is not examinable into, llis Honor, the presiding judge, remarks — “But when the submission of the 7th July, 1858,” (it should have been the 11th of June, 1858,) “the case of the parties as therein stated, was brought strictly within the provisions of the act under which the submission was mademeaning the act of 1856. Is this so ? and is this conclusion drawn from the fact that the submission was subsequnt to the rule of reference? This inference would have been .legitimate had the submission failed to adopt the rule of reference andtheterms of the law had been repugnant. Butinstead of this, it recites the pending of the action between these parties, and the order of the court rofering the matters in issue to arbitrators; and tben stipulates, as we have already stated, that the arbitration shall be “subject to the rule of reference taken in the case.” "We confess we are unable to see how, under these circumstances, the rule of reference is superseded or abrogated by the submission, although the former he prior in point of time.

The most that can be said is, that the submission, from inadvertence, or some other cause, has presented two contradictory rules to control the arbitration and award. Upon what principle are the defendants in error entitled to the full benefit of the 15th and 16th sections of the act of 1856; and to insist that the award can be attacked only for fraud and corruption according to the 15th; or fraud or corruption according to the 16th section of said act? May not the plaintiffs in error contend with equal plausibility and propriety that the award may be revised for “ fraud, -accident, or mistake,” according to the rule of reference?

It is the duty of the court to harmonize, if possible, these apparently inconsistent stipulations in the submission so as'to give effect to every part of it. The terms of the rule of reference itself, if carefully scrutinized, settle this difficulty conclusively. After providing that the award of the arbitrators shall be final between the parties, no appeal to any court lying therefrom, “ except for fraud, accident, or mistake,”it was further ordered, “that the parties have leave to be represented by their counsel before the arbitrators; and that the latter be guided by the rules laid down for the regulation of arbitrators in the act of March 5ih, 1856.”

Here we have a key to unlock the true intent of the parties, When they agreed in the submission that the arbitration shall be subject both to the terms of the act of 1856 and of the rule of reference; they intended that the •arbitrators should be guided in their proceedings by the act of 1856, examining the parties as witnesses, &c., but imposing no restriction upon the right of either to except to the award for “fraud, accident, or mistake.” This we hold to be the obvious and undoubted construction of the submission.

2. Was the alleged mistake inquirable into upon the disclosures made by Joseph Milligan, one of the arbitrators ? We do not find it necessary to decide this point, under the further view which we have taken of this case. We will say, however, that we see serious objections against permitting an arbitrator to impeach his award, as well as a juror his verdict, long subsequent to the time when the finding has been rendered. The award in this case, was signed the 7th day of July, 1858 ; the parties were furnished each with a copy on the 8th, and no complaint is made by the arbitrator until the 15th of that month. Jurors no doubt often become dissatisfied with their verdicts, and courts with their judgments, still they must stand as the law of the case. If the fact be as alleged in Milligan’s letter, that, the arbitrators awarded to the plaintiffs, a gross amount of possible profits and deducted nothing for the profits shown to have been actually made, the law certainly would provide some way to enable the defendants to ascertain and correct an error so gross.

3. This brings us to the last and main ground of objection to the award, and that is the want of sufficient cause of action against the defendants, apparent on the face ox the record. The plaintiffs in error maintain that the defendants in error claim in their declaration and by the submission damages for what, by their own showing, is only a public nuisance, for which no private action liés.

There is no dispute that the general rule of law is, that, a private action will not lie for a public nuisance. It is the subject of indictment, not of action. The reason of the rule is, that it would create a multiplicity of actions; one being as well entitled to bring an action as another; and therefore, in cases of public nuisance, the remedy must be by indictment. — Co. Lit. 56 a.; Roll Abr. 88-110; Moor, 180; 2 Brownl, 147; Vaugh, 341; Cro. Eliz. 644; 3 Mod. 294; Carth. 171; Salk, 15 Pl.; 3 Black. Com. 219; 15 Geo. Rep. 61-62. The declaration and submission set out a public nuisance — the obstruction of a navigable river.

To this general rule there is an exception; namely, that if by such a nuisance, the party suffered a particular damage, as if by stopping up the highway by logs, any horse throws him, by which he is hurt or wounded, an action lies. — Cro. Jac. 446; Keb. 849. Now the point at issue is, do the plaintiffs come within the exception?

In this, as in many other cases, where the general principle has been departed from by engrafting exceptions upon it, the line of demarcation frequently becomes too dim and attenuated to bo distinctly visible or clearly stated. We have examined with some care the numerous precedents, English and American, upon this subject; and it is not quite satisfactory to myself to determine on which side the weight of authority preponderates. There is, therefore, a want of entire confidence in the result at which the court has arrived. The question has received various determinations, according to the circumstances of each case.

In Pame vs. Patrick, Carth, 194, it was said by Lord Holt', that if a highway bé so stopped, that a man is delayed a little while on his journey by reason whereof, he is damnified or some important affair neglected, that it is not such a special damage for which an action on the case will lie; but that the damage ought to be direct and not consequential as the loss of his horse or some corporal hurt in falling into a trench in the highway.

I will not refer to the case of Herbert vs. Groves, 1 Esp. Rep. 148, decided by Lord Kenyon, and a strong case'in favor of the defendants. 1st, because the authority of that case has been greatly shaken; and 2dly, because it wasjadjudged since the Revolution, and consequently, not to be regarded here further than its intrinsic merit demands.

The case of Chichester vs. Lethbridge, (Milbs. 71,) appears to be the last adjudged case in England on the subject prior to the Revolution ; and is the leading case relied on to uphold the contrary doctrine. It is briefly this: The defendant obstructed the highway by a ditch or gate across the road, by means of which the plaintiff was obliged to go a longer and more difficult way, to and from his close; and the defendant opposed the plaintiff in attempting to remove the nuisance. It was held that an action well lay for special damages.

I would remark respecting this case, these two particulars — 1st, the plaintiff had a special right to go to and from his close; and 2dly, the defendant in person withstood and opposed him, and prevented him from removing the obstruction, which by law, he might do. The conclusion to which the court has come is this : That so far as the case stated in the original declaration is concerned, if supported by proof, it is justified by some of the cases to be found ill the Books, to-wit, that the steamboat Fashion, owned, by the plaintiffs as common carriers, was proceeding in and upon and along the Savannah river, with divers, goods, wares and merchandize, to be conveyed thereon from Augusta to Savannah; yet the S. C. R. R. Company, intending to injure the plaintiffs, and to deprive them of the use and benefit of said navigable stream, &c., whilst said boat was prooeeding upon said river, &c., by reason of a bridge unlawfully constructed across said stream, obstructed said boat, &c., and stopped it for a long space of time, viz : for the space of ten days, &c., -whereby the plaintiffs were damaged ten thousand dollars.

The truth of this averment is hardly conceivable ; still, as we are deciding the case upon the declaration, we must assume it to be true. The balance of the plaintiffs demand as set forth in the writ, and the submission, is not so stated as to entitle them to any recovery. I confess I cannot exclude from my mind the conviction, that from the very nature of the pleadings, it is apparent the gravamen'of the plaintiffs’ claim, is for possible, prospective and speculative profits. "What then shall we do with the award ? It is for the sum of $29,992 77. May we infer that the whole of this amount -was allowed under that part of the declaration which we admit to be good ? This we cannot do; for it is near $20,000. more than they claimed for that injury. They" laid their damages under the original writ for only $10,000. Is it a case where rve could pronounce a judgment setting aside the award, unless the plaintiffs would write off the $20,000 excess ? This is a discretionary power which the courts may and frequently do exercise. But we are satisfied it would not meet out the full measure of justice in this case. The jury only found $2,000 under the original declaration, and the defendants appealed from that verdict.

Upon the whole, wre think it best to set aside the award altogether, and remit the case back to be re-instated in the court below, to be tried under the first count, as restricted in this opinion, as to the damages resulting from, the actual detention of the plaintiffs’ boat Fashion, when in a course of navigation from Augusta to Savannah, by reason of the erection of this structure.

4. Has the court the power to review and set aside this award on account of the mistake in law, made by the arbitrators ?

Here again there is a conflict of authority, because the courts have not said and stood to it that awards might or might not be examined into on account of the misconception of the law by the arbitrators. Upon one point there is a good degree of unanimity, namely, that if the award be clearly against law, and that fact appears upon its face, the court will interfere. — See 18 C. L. R. 200, note a, and the cases there cited.

That is the case. We decide the law of the ease upon the face of the writ and the submission. Take the old example by way of illustration : A sues B for slander in charging him with stealing water from the town spring. The case is submitted to arbitrators; and they award damages to A. Would the courts suffer such an award to stand? Would they enforcé it by a judgment? We apprehend not. This is that case, if we are right in our opinion of the law.

5. As to the preliminary motion to dismiss this writ of error, because the counsel for the defendants in error were not made parties to it, we hold that they were not necessary parties to this proceeding. They were not parties, either to the writ or the submission. It is true, that by agreement between the parties from the amount found for the plaintiffs was to be deducted the fees due their counsel, which were to be paid by the defendants directly to the attorneys. The rights of counsel do not arise until some sum is finally awarded to their clients. And in that event there is no contest between them and the plaintiffs in error: They have-been served with notice and are actually representing this case in the only legitimate way in which they are entitled to be heard; and that is, as counsel to- sustain the- award made in favor of their clients:

Judgment reversed.