14 Haw. 481 | Haw. | 1902
Lead Opinion
OPINION OP THE COURT BY
These applications for writs of mandamus to compel the Commissioners of Fire Claims to amend their awards in certain cases, were heard together both in the lower court and in this court on appeal.
Much property having been destroyed in the city of Honolulu during December, 1899, and January, 1900, under or in consequence of orders of the Board of Health in suppressing bubonic plague, provision was made by Act 15 of the Laws of
Tbe petitioners in tbe second case-, Sing Chan Company, presented a claim for $11,816.92 for property so destroyed, and tbe petitioner in tbe first case, tbe insurance company, presented a claim for $1,500 as assignee of the Sing Chan Company claim up to tbat amount, tbe insurance company having obtained tbe assignment upon paying Sing Chan Company tbat amount under a policy of insurance upon tbat property.
Tbe Commission, after bearing tbe claims, found tbat tbe value of tbe property destroyed was $7,877.95, but awarded tbe Sing Oban Company only $4,590.85, being tbe total loss found, less amounts previously paid under three insurance policies on the property, and upon the award tbe following was noted: “This claimant having subrogated to tbe following insurance companies, td-wit, Liverpool & London & Globe Insurance Co., Policy 354,106, $1,500; Fireman’s Fund Insurance Co., Policy 627,873, $1,000.00; Royal Insurance Co., Policy 5,853,660, $787.10; this award is hereby made subject to the subrogation of this claimant to said companies. Less and subject to any sum or sums of money hereafter recovered or received from insurance companies on account of property destroyed by or incidental to said sanitary fires.” Upon tbe award in tbe case of the insurance company tbe following was noted: No award made under Act 15 of Session Laws of 1901. Award made to claim 4346 (Sing Chan Company) subject to subrogation; or words substantially to tbat effect. Tbe other two insurance companies likewise presented tbeir claims to tbe Commission — with presumably similar results, though it is not expressly so stated.
Tbe Circuit Judge, after a bearing on demurrer in each case,
The insurance company does not rely upon an independent cause of action of its own or a claim for damages caused to it by the orders of the Board of Health. It could not, for such damages would be too remote under the general law (see Conn. Mut. Life Ins. Co. v. N. Y. & N. H. R. R. Co., 25 Conn. 265, 274) even if the Territory were suable in tort in the regular courts, which is not the case (Coffield v. Territory, 13 Haw. 478), and the statute in question (Section 7) expressly prohibits awards for “consequential damage” and limits allowable damages to loss “for the destruction of or direct damage to property.”
Nor does the insurance company rely on a right of subroga.tion independent of the express assignment, although (fire insurance being, like marine insurance; a contract of indemnity, and not, like life insurance, a contract to- pay a definite sum upon the happening of a particular event) the. company upon paying the insurance would, in the absence of an express assignment, be subrogated, in a corresponding amount, to the insured’s light, if any, against the wrongdoer responsible for the loss. St. Louis &c. R’y. v. Commercial Ins. Co., 139 U. S. 223, 235; Darrell v. Tibbetts, L. R. 5 Q. B. D. 560.
The company relies entirely on the express assignment, that is, upon its rights as an assignee of a portion of the claim of the insured.
The claim on behalf of the insurer was disallowed in both cases, and, therefore, in view of our conclusion that we cannot in proceedings of this kind review and correct the decision of the Commission upon this point, assuming it to be erroneous, it will be sufficient for the disposition of both cases if we state our reason's in the case of the owners alone.
lYe take it that the petitioners would be satisfied with either
As already stated the real question of importance to the petitioners, is whether the award to Sing Chan Company should have been for the full loss, $7,877.95, or was properly made for that amount less the amounts paid by the insurers. But we need not undertake to decide this question, inasmuch as, in our opinion, set forth below, this court could not properly in a proceeding of this kind review and correct the action of the Commission even if it erred in its decision of this question. And yet we may be justified in stating some of the considerations that bear upon the question, partly for .the purpose of throwing light upon it, especially in view of the arguments pro and con presented by counsel, and partly for the purpose of showing to some extent that the question is one of such a nature that it should not be decided in a proceeding of this kind.
Of course, if the statute clearly showed that the legislature
Assuming that the question is not settled by the statute, its solution might depend upon whether the owners would be obliged as1 matter of law to reimburse the insurance companies out of the amounts received under the award of the Commission. If they would, then justice would seem to require that the full amount of the loss without deducting the insurance should be awarded; for otherwise the amounts of insurance would be in effect deducted twice and the owners would not be fully compensated for their loss. They would be discriminated against as compared with others and would better not have had insurance. And the general rule is that in actions by the owner* against those who caused the loss, the measure of damages is the entire loss without deduction of amounts previously received from insurers. Weber v. Morris &c. R. R. Co., 35 N. J. L. 402; see also Pentz v. Receivers, 3 Edw. Ch. 341; 9 Paige 568. But if the owners would not as matter of law be bound to reimburse the insurers, it could be argued with a good deal of force that they could not justly complain if the amounts already i eceived by them from the insurers were deducted, for they would be fully compensated — in part by the insurers and as to the rest by the government.
It would be under the express assignments or because of the nature of the contract of insurance as one of indemnity that the
Assuming that the Commissioners erred in their views on these questions and that the award should have been for the full amount without deducting the insurance, can we at all, or at least by mandamus, review and correct their award, or must not the petitioners be left to pursue some other remedy, if any, in the courts or their remedies of persuading, if possible, the Commission or the legislature to grant the desired relief?
It is- conceded that ordinarily 'certiorari would be the proper remedy to correct a judgment or award in a case of this kind, but it is contended that our statute (Civ. L., Sec. 1614) limits the scope of that remedy to such an extent as to1 make it inapplicable to this case and {Id., Sec. 1600 et seq.) enlarges the scope of the remedy by mandamus so as to make it applicable. We need not express an opinion upon the scope of the statute in these re^ spects. But it may not be out of place to remark that this court has in a number of cases followed the rule that prevails in most jurisdictions, that, although an inferior court may be compelled to hear and decide a matter, it cannot be compelled by mandamus to decide it in a particular way. And the mere fact that there is no other remedy is not sufficient to justify the court in proceeding by mandamus. Ex parte Newman, 14 Wall 152; In re Rice, 155 U. S. 396. It is contended, however, that it is sought here, not to control the Commission in. the exercise of its judicial functions, but merely to compel it to> enter'an award in accordance with its own findings of fact. That was the contention in Ex parte Morgan, 114 U. S. 174 ,but the court held it not a proper case for mandamus. The Commission has already acted in these cases. We are asked, not to compel it to act- or even to correct mere clerical mistakes or oversights, but to- come
In our opinion the statute under which the Commission acted made its decisions final and not subject to review by the courts. The courts might interfere if the Commission declined to> hear and decide a claim that was properly presented to it or if it attempted to act beyond its jurisdiction, but they cannot review and correct its awards made within the scope of its jurisdiction. The statute (Section 6) provides that, “its judgments shall be final and no appeal lie therefrom.” The Circuit Judge held that if this provision were to be so construed it would be unconstitutional or rather contrary to the provisions of the Organic Act creating the judicial system of the Territory, — on the theory that the legislature could not create an inferior court of final jurisdiction. It is evident that, if that were the rule as to ordinary courts and cases, it would have no application to a special Commission in the nature of an auditing board, created to adjudicate claims against the government. Peacock v. Republic, 11 Haw. 404, 409. “The government cannot be sued except by its own consent, and if it consents to be sued at all, it may do so upon, such terms and conditions as it pleases.” Counsel for the petitioners did not in the lower court and do not now rely much, if they do at all, on this ground upon which the Circuit Judge based his opinion. Their contention is that by the established principles of the common law the courts have jurisdiction to review the judgments of inferior tribunals by certiorari or mandamus where no> appeal or writ of error lies.
Words similar, at least in part, to. those in question have been construed differently by different courts. For instance; in People v. Betts, 55 N. Y. 600, the court held that the statute, in declaring that a certain appraisal should be “final and conclusive” meant, not merely that there should be no appeal technically speaking but that there should be no remedy at all 'by way of review and that therefore certiorari did not lie. See also Commonwealth v. Justice, 34 Pa. St. 156; Auditorial Board v. Arles, 15 Tex. 12; Wertheimer v. Boonville, 29 Mo.
The circumstances here are different from what they were in most of the last above cited cases. Here, besides; the provision that the judgments of the Commission shall be “final,” there is also the provision that “no appeal (shall) lie therefrom.” The word “appeal” here is not used in its technical sense. It is used in its broader sense as meaning a proceeding for reviewing and correcting the judgment of an inferior tribunal. The subject matter and language of the statute as a whole indicate an •intention to avoid the formalities and delays of ordinary judicial proceedings and to have the claims adjusted by the application of horse^sense rather than of strict rules of law. Only one member of the Commission was required to- be an attorney at law (Section 1), the judgments were to be final (Section 6),' claims might be compromised (Section 12), issue need not be joined {Id), “the Commission shall not be bound to follow the rules of the common law in relation to pleadings, practice, and the admission and rejection of evidence but shall exercise its discretion therein with the view of doing justice?’ (Section 15), apparently claims were expected to be presented and heard at the rate of about a thousand a month as there were nearly 7,000 claims and appropriations for the expenses of the Commission were made for only six months (Section 16). It could hardly have been contemplated that this large number of claims might possibly be brought into the regular courts by mandamus or other proceedings to correct alleged errors. Then, again, the statute was not intended to provide for the adjudication of rights as between individuals or even for the adjudication of strictly legal rights
“If injustice has been done by the board, in rejecting the claim of interest, the claimant must rely for remedy upon the sense of the justice of the claim that the legislature may entertain on it.”
The order of the Circuit Judge directing the Commission to amend its award is reversed in each case.
Concurrence Opinion
CONCURRING OPINION OF
I concur in the conclusion of the majority that the statute under which the Commission acted made its decisions final and not subject to review, by any method, by the courts and that this provision is not unconstitutional, and also in the reasoning in support of that conclusion. The proceedings in these two cases are but attempts to obtain a consideration by this Court of certain errors of law alleged to have been committed by the Commission and a reversal or modification of its judgments, and the orders appealed from must, therefore, be reversed and the petitions dismissed.
It is unnecessary, I think, to express -an opinion upon or to enter into a discussion of any of the other questions touched upon in argument or in the opinion of the majority.