267 Mass. 430 | Mass. | 1929
The plaintiff is the insurer under a Massachusetts standard form of fire insurance policy. The property insured was partially or wholly destroyed by fire on June 1, 1927. Referees were appointed to ascertain. the amount for which the insurer is liable. The defendants are those referees, the owners of the insured property and the insurance commissioner. The object of the suit is to prevent the referees from completing an award under the policy.
The plaintiff appealed from an order sustaining a demurrer to the bill by the insurance commissioner. That appeal has not been argued and is treated as waived.
The insurer under our law when sued on the policy may impeach the award for misconduct of the referees without resorting to equity. Bean v. Farnam, 6 Pick. 269, 273. Doherty v. Phoenix Ins. Co. 224 Mass. 310, 314, 315. But the other defendants except the insurance commissioner answered and proceeded to trial on the merits without objection. That was a waiver of the right to raise objection, if any there be, to the form of procedure. Bauer v. International Waste Co. 201 Mass. 197, 201. Ryan v. Annelin, 228 Mass. 591.
Issues raised by the defendants other than the insurance commissioner were heard by a trial judge, who made findings of facts and entered a decree dismissing the bill. The case comes before us on appeal with report of all the evidence. The findings are not seriously controverted, are not plainly wrong but fully supported by evidence, and must be accepted as true.
Summarized, the facts thus found are that after the fire a
At the trial the plaintiff made no claim of unfairness, prejudice, fraud, or lack of good faith on the part of the referees, and amended the bill by striking out all allegations of that nature. The judge, however, made these further findings: “In view of the attack upon the qualifications of the defendant Wiggin and the allegations respecting the defendant Wiggin and Robb, I find as a fact upon the evidence that the defendant Wiggin was properly qualified for the position and that neither the defendant Wiggin nor Robb acted with any bias, prejudice, unfairness or fraud, from any wrongful
It is not necessary to consider St. 1927, c. 285, because although approved on April 20 it was not declared to be an emergency law and did not take effect until after the claim here in issue had arisen, and therefore by § 4 is not applicable to these reference proceedings. G. L. c. 4, § 1. Art. 48 of Amendments to the Constitution. The Referendum, Part I.
It is required by G. L. c. 175, § 101, that referees selected under the Massachusetts standard policy to determine the amount of loss arising from a fire “shall, within ten days after the appointment of the third referee, meet to hear the evidence in the case; and if the case is not completed at the first hearing, adjourned hearings may be held from time to time, but not more than one week shall elapse between hearings,” with an exception not here material. This section is in substance, a reenactment of St. 1910, c. 489. Prior to that enactment it had been implied by Farrell v. German American Ins. Co. 175 Mass. 340, that the hearing of evidence was not essential to the validity of an award by referees under the Massachusetts standard policy. It was expressly decided in Hanley v. Aetna Ins. Co. 215 Mass. 425, that referees might determine the amount of loss in any way thought by them to be wise in the exercise of honest discretion even to the extent of refusing to hear evidence touching such loss proffered by the parties. The opinion in that case contains an exhaustive review of the practice and the statutes concerning the ascertainment of the amount of loss under fire insurance policies. It was held to be the purpose of the several statutes enacted
It was an indiscretion on the part of the referees in the case at bar to proceed to hear evidence in the absence of one party when it had been said that the meeting would be held for organization and a view without hearing witnesses. Apparently evidence was received on that occasion which would not have been competent at a trial in a court and which ought not to have been received by the referees. But reception of evidence of that nature as to offers made for the property, standing alone, would not commonly require or justify the setting aside of an award. The statute does not demand that the referees be learned in the law. It is matter of common experience that they are generally laymen selected because of practical knowledge as to the subject involved. The mere fact that evidence was received by the referees as disclosed by the present record is not enough to stamp the reference as invalid. Clark v. New England Telephone & Telegraph Co. 229 Mass. 1, 10. It is the manifest purpose of said § 101 that the hearings proceed with dispatch. It was the duty of the plaintiff to arrange to bé represented at the hearing if it so desired. We interpret the finding of the trial judge to mean that the insurer was notified in ample time to have a representative present at the first meeting of the referees. The referees were ready at a subsequent meeting to have the répresentative of the insurer cross-examine all the witnesses previously heard and such witnesses were present for that purpose. Findings of the trial judge that the referees exercised good faith and were free from all bias are categorical and complete. All these considerations lead us to the conclusion that there is no sufficient reason for holding that the reference has been invalidated by what has happened. The hearings ought to proceed to an end and an
Order sustaining demurrer of insurance commissioner affirmed. Decree dismissing bill affirmed with costs.