Pennsylvania Iron Works Co. v. East St. Louis Ice & Cold Storage Co.

96 Mo. App. 563 | Mo. Ct. App. | 1902

BLAND, P. J.

1. The contention of appellant is that the refusal of the arbitrators to permit counsel of defendant to examine and cross-examine witnesses at the hearings was misbehavior and that the award should be vacated therefor. It was within the sound discretion of the arbitrators to hear or refuse to hear counsel. Morse on Arbitration, 130; Russell on Arbitration (3 Ed.), 166; Macqueen v. Nottingham Caledonian Society, 9 C. B. N. S. 793. And the award should not be set aside for the refusal to hear counsel unless it clearly appears that the .defendant was prejudiced thereby. It appears from all the testimony that defendant’s counsel was permitted to be present at all the hearings and to freely consult with his client but was denied the privilege of examining or cross-examining witnesses or to object to the rulings or proceedings of the arbitrators.

One of the issues on the counterclaim was whether or not plaintiff had complied with its contract in ■installing the ice plant and in having kept it in repair for one year after installation. The arbitrators were engineers and as such were certainly competent to pass on this issue without the aid of counsel. The other issues were simple ones and easily comprehended by any man of ordinary intelligence. All the evidence offered was heard and we are of the opinion that the aid of counsel was not necessary to enable the arbitrators to weigh, the evidence or to make a just award.

2. "We think the evidence offered by plaintiff on the motion to vacate the award tends to prove that defendant waived the right (if it had one), before any hearing was had, to be represented by counsel. Mr. DeKinder’s testimony clearly tends to prove a waiver of this right. True, his evidence in this particular is contradicted by evidence offered by defendant, but the issue was one submitted to the trial court and it is our duty to uphold its rulings on any theory of the case which the evidence tends to prove. If the evidence of DeKinder is to prevail, then there was clearly a waiver by defendant of assistance of counsel and it can not, after the award has been made, move to set it aside for the refusal of the arbitrators to do that, the performance of which it waived before the hearing had commenced. Allen v. Hickman, 156 Mo. 1. c. 59; Tucker v. Allen, 47 Mo. 1. c. 491; Thomas v. Heger, 174 Pa. St. 345; Bennett v. Bennett, 25 Conn. 66. Nor do we think there was any misconduct on the part of the arbitrators in refusing to go to East St. Louis and inspect the plant as it appears from the evidence that an inspection at that time could not have aided them in arriving at a conclusion as to whether or not plaintiff had complied with its contract to furnish the machine and keep it in repair for one year.

The judgment is affirmed.

Barclay, and Goode, JJ., concur in the second paragraph, and in the result.