Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-12-22

by the plaintiff.
OF the three persons so named by the
defendant, the plaintiff on the 18th of
October. 1907, chose Charles l.. Bracket
as one of the referees, but on the 18th
of the same month, Mr.. Bracket in
formed the defendant that on account
of the death of his father and the many
calls upon him in connection with his
regular business, he should be unable
to serve as referee. The next day the
defendant informed the plaintiff by let
ter of Mr.. Brackets inability to serve
as referee stating that it would do
whatever is necessary to bring the re-
ference about at once" and three days
later submitted the name Of another
person in place of Mr.. Bracket On
the 3cth of the Same month the plain
tiff notified the defendant that he did
not recognize tie right of the defendant
to submit any other name and that it
declined to make any choice. On the
anne day this action on the policy was
brought Without a reference.
The case comes to the law court on
eH~ options to the ruling of the sitting
Justice in favor of the defendant made
on an agreed statement Of facts and
he correspondence between the parties.
The Statute is manifestly one OF
more than ordinary importance to the
parties. In concise and definite terms,
it states the conditions upon which
the insured is compelled to surrender
his right to jury trial if he should
prefer a jury trial upon the question
of damages. as well as the obligations
to be discharged by the company, if it
would receive any advantages that
might be derived from a settlement OF
the damages by arbitration. 1t fixes
a brief and definite limit OF 10 days
within which the names must be pre-
scented and a referee chosen for the OBJ
vious purpos" of securing a more
prompt administration of justice. The
Statute requires the company within
10 days after request to name three
men each of whom shall be willing
to act as one of the referees 1t
gives the insured the right to select
from three who are willing to serve.
1t contains no provision giving the
company the right either to present a
new name in lieu of one refusing to
serve, or to name three new men from
whom the insured could make a sec
ond selection. If it should be held
that in the contingency named the
company should have the opportunity
to present either one or three new
names. no limitation of time is fixed
by the statue within which such a
new submission of name might be
made. 1t specifies no limit beyond
the single term of 10 days.
When the language of a statute is
clear and unambiguOus, admitting OF
only one meaning it is not permissible
to interpret what has no need of IN
depreciation. 1t is not the province OF
the court to incorporate into the
statute by judicial construction, pro-
visions which the legislature did not
see fit to insert
1t is true that in this case the good
faith of the defendant is not ques-
toned but in determining the justice
and propriety Of the rule contended
for by the defendant, its practical
operation and possible consequences
may properly be considered. BY Sc
lectng Mr.. Bracket as referee in this
case the plaintiff thereby distinctly
preferred him to the other two and by
implication necessarily rejected the
other two. 1t would be an injustice
to compel the plaintiff to accept one of
those men after Mr.. Bracket declined
to serve, and if the opportunity were
given the defendant to designate Il
new man in place OF Mr.. Bracket,
the plaintiff would be practically
forced to accept any name which the
defendant might deem it advantageous
to present
The company failed to give the
plaintiff the opportunity to make the
choice to which he was legally en-
titled, within the time limited by the
statute. 1t failed to name three men
each of whom was willing to act as
one of the referees. not only at the
time he was named. but at the time
he was required to serve. 1t failed to
comply with the imperative terms and
absolute conditions Of the statute, and
must be held legally responsible for
the failure of the arbitration and ac-
cording to the language of the statute
be deemed to have waived the right
to it, 1t is not a question of the good
faith or actual intentions of the de-
PENDANT. 1t is not an intentional
waiver but statutory waiver that
deprives the defendant OF the right to
arbitratio 4 statutory waiver may
be established without proof of an
actual intention to rclinquish Il known
right. The defendant failed to COM
ply with definite and positive re-
quircmcnt of the statute. and it is i'm
material whether such failure was the
result of Il controversy respecting the
legal duty OF the DEFENDANT or of its
misfortune in selecting for referee one
who was not willing to act as such at
the time he was required to serve.
The rule contended for by the de-
PENDANT would enable the company to
defeat the purpose of the statute
through a change of mind on the
part of one of the men named for
referees and leave the insured in prac-
tically the same state OF uncertainty,
and subject to the same delay as be-
fore the adoption of the amendment.
Ii it be deemed just and proper to
preserve to the defendant the right of
arbitration in the contingency which
occurred in this case or III the event of