Liverpool & London & Globe Insurance v. Goehring

Mr. Justice Gordon

delivered the opinion of the court, November 7th 1881.

As a copy of the policy of insurance upon which this suit was brought has not been furnished for our inspection, we are not prepared to say that the answers of the court below to the defendant’s 5 th aiíd 9th points are incorrect. Wo have, however, no hesitation in pronouncing the answer to the 3d point erroneous. We have examined the evidence with care, and have failed to discover that the arbitrators were guilty of the slightest misconduct. These arbitrators or appraisers were chosen by the parties under an agreement in writing duly and deliberately executed, and by the terms of that agreement they were to appraise and estimate the true cash value of the loss. They were chosen because they were practical builders, and were expected to make their own estimates, and from those estimates form their judgment.

Therefore, that tl'iey went to a planing mill to ascertain the price of lumber, and to a tinsmith to learn the price of roofing tin, so far from, being evidence of misconduct, was proof of care and consideration — of a disposition to inform themselves of the ruling prices of the materials that had composed the building. They examined the ruins, took what measurements wore necessary, listened to what information Goehring had to give them, received from him a plan of the building, and, if he is tr be believed, he put into their possession an estimate made for im by Greenawalt, an act that looks more like an attempt to improperly influence the arbitrators than any other in the case. Then, after they got all the information they thought necessary, and they were the sole and exclusive judges of what was necessary, they retired to a room in the hotel, and there by themselves, both' parties being excluded, they made their estimate and award. That this estimate was a fairly correct one is evidenced by the fact that Miller offered to rebuild the property for the amount of the award, a proposition which the plaintiff refused to accept. This, then, is the testimony of the arbitrators themselves, nor does the evidence of Goehring, when trimmed of its obvious exaggerations, seriously contradict it. Leaving out the testimony as to the manner in which these men did the work to which they were appointed, the legal presumption is that they did their duty, and that presumption is not rebutted by such evidence as that of the plaintiff. That the “ Liverpool gentleman ” and the “ Lycoming gentleman ” hurried the arbitrators up so that he had no time to make his explanations and to show them “ some little things ” which he had left out of his memorandum; the running of the arbitrators down to the hotel in order that they might get to work as soon as possible; the call of the “ Lycoming gentleman ” for lemonade instead of water, of which he imagined he was not to partake, and, finally, how that in the forenoon he saw the arbitrators “ promenading the street with the insurance men, hunting up evidence, down to Fulton’s mill and around the ruins of the building; but they took good care to stay away from me,” which means that, for his own purposes, he took good care to stay away from them. Such evidence as this, so evidently partial, and with such a tone of flippant exaggeration running through it, goes but a very little way to the overthrowing of the award of a'- board of appraisers of the plaintiffs own choosing. One-sided and warped as this testimony evidently is, it reveals nothing that in the slightest degree impeaches the integrity of the board of arbitrators. What if they were hurried up ? Perhaps that was necessary to expedite the business in hand, and, at all events, it was no fault of the arbitrators that the insurance men hurried them up.

That they were promenading the street in search of evidence, so far from being a misfeasance, was, as we have already shown, in the line of their duty.

Then, again, the mistake complained of, if mistake there was, which is doubtful, was of a character so insignificant as to be unworthy of attention. Even wrere it much more important than it is alleged to be, it could not be used to set aside tL award: Speer v. Bidwell, 8 Wr. 23.

The judgment is reversed.

A venire facias de novo was subsequently awarded.