Nay v. Boston & Worcester Street Railway Co., 192 Mass. 517

192 Mass. 517 | Mass. | 1906

Loring, J.

The parties to these two actions at law might have submitted to arbitration the matters in dispute between them by a submission in pais, a submission under the statute, or by a rule of court made in each action. If the first method of procedure had been adopted, the only way of enforcing the award would have been by an action on the award when made. If the second had been adopted, it would have been an independent proceeding in court. The third method of procedure is the only method which proprio vigore would have ended the further prosecution of these two actions.

Had it not been for the first, second and thirty-first rulings asked for by the defendant, it might have been somewhat difficult to decide which method of submission to arbitration the parties in these actions intended to take. On the one hand the submission in the main is in the terms of a statutory submission under R. L. c. 194. On the other hand it was filed in the two actions and “ allowed ” by the court.

But the defendant is bound by its first, second and thirty-first requests for rulings, in which it in effect asked that the submission should be treated as a submission under the statute. As a statutory submission it is void. It departs from the form prescribed in R. L. c. 194, in providing in substance (first) that no hearings are to be had except in the discretion of the arbitrators, and (second) for the selection of “ some reputable physician ” as a referee if the two arbitrators named are unable to agree. These are matters of substance, and render the submission void as a submission under the statute. As to the second objection stated above see Monosiet v. Post, 4 Mass. 532; Franklin Mining Co. v. Pratt, 101 Mass. 359. As to the general principle see Abbott v. Dexter, 6 Cush. 108; Bent v. Erie Telegraph & Telephone Co. 144 Mass. 165. This rule was not overthrown by the recent decision in Giles v. Royal Ins. Co. 179 Mass. 261.

Since the defendant elected to treat the submission to arbitration as a submission under R. L. c. 194, and as a submission under that statute it is void, there was no error in proceeding with the trial of these two actions in the court below.

It is perhaps worth while to state in addition that the present award in any event was bad because it was a joint award on the submission of two several causes of action. See Giles v. Royal Ins. Co. 179 Mass. 261.

The appeal is not properly before us, no final judgment having been entered.

Appeal dismissed ; exceptions overruled.