Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1912-09-20

state, established by a uniform line
of decisions, that when parties have
mutually agreed upon a surveyor to
scale logs, his scale will be binding
and conclusive upon them, in the alb
sence of fraud or mathematical mis-
take. In Bailey v. Blanchard, 81
Maine, 16S, it is said in the opinion
that neither party is at liberty to set
aside or impeach the scale except on
such evidence as would avoid the
award of an arbitrator mutually
chosen" In Bangor Savings Bank
V. Insurance Co, So Maine. IS, it was
held that an appraiser to determine
the amount of the damage or loss UNI
Ger an insurance policy may call in
the aid of a third person skilled in a
special branch of the appraisal, and
may give to the estimate of sucn
third person, such weight and cred
ence as he sees fit, even to the point
of founding his judgment upon that
estimate. provided he adopts that as
his real judgment.
1t is an elementary principle re-
speeting the judicial character and
function and a firmly established rule
of law that judges and arbitrators
enjoy immunity from private actions
for damages against them for judg-
ments rendered while acting within
their jurisdiction in the due course of
the administration of justice.
The English cases clearly and
strongly support the defendants con-
tention that an action will not lie
against an arbitrator or quasi-arbitra-
tor for negligence in the exercise of
his honest Judgment. Papa V. Rose.
l. r. c. p. 30, affirmed on appeal
L. r. C. 2. 525; Tharsis sulphur and
Copper Co. V. Lotus. l.. r. C. p. l.;
Stevenson V. Watson, 4 l.. r. c. p.
Div. las.
In rharsis s. e c. Co. Y. Lotus
above cited, the owners of a cargo
and the ship. owner agreed that the
defendant, an average adjuster, should
determine the proportion of loss which
the ship and cargo had respectively to
bear and that they would be bound by
his decision 1t was held that an ac-
tion would not lie against the adjus-
ter az the suit of the plaintiffs, or
owner OF the cargo for want of care
i'll the performance of his duties as
average adjaster. inasmuch as he WAS
in the nature of an arbitrator between
the parties.
In Stevenson V. Watson. supra, a
contract provided that the architect
might order additions to or deductions
from the plans TO build q hall and
that the amount of them should be
ascertained by the architect; that the
contractor and the company would be
bound to leave all questions or mat
tiers of dispute which might arise
during the progress of the work, to
the architect whose decision should be
final ana binding upon all parties. 1t
was held that the functions OF an ar
ehitect in ascertaining the amount
due to the plaintiff We're not merely
ministerial. but such as required the
exercise of professional judgment,
opinion and skill and that he there
fore occupied the position of an arbi-
traitor against whom no fraud or col
fusion being alleged, an action for
negligence in the discharge of his du-
ties could not lie.
In his opinion. Chief Justice Cole
ridge said: This claim is for that
attempted without success. 1t is an
ACTION dSdAilSl iAlelIi III lilt
gent performance of a duty, in the do
ing of which the exercise of judg-
ment or opinion is necessary.
Il think this case is within the au-
thority of the cases cited which decide
that where the exercise of judgment
or opinion on the part of a third per-
son is necessary between two persons,
such as a buyer and seller, and, in
the opinion of the seller, that judg-
ment has been exercised wrongly, or
improperly, or ignorantly. or negli-
gently, an action will not lie against
the person put in that position when
such Judgment has been wrongly, or
improperly. or ignorantly, or negli-
gently exercised
1t is obvious that the rule contended
for by the plaintiffs would in every
case expose the surveyor to the vex-i
atoms and hazards of suit at the in
stance of the dissatisfied party, and
thus be destructive of the surveyors
independence and his power to dis
charge his duties as an arbitrator
properly and efficiently. Such a doc
trine would be fraught with conse-
quences too mischievous to receive the
sanction of the court.
The certificate must therefore be
exceptions sustained.
Other rescripts have been handed
down as follows:
Androscosgin County.
Anna G. Masterman VS.. Portland ita,i-
road Co. Rescript. per curtain.
This case comes up on motion for
new trial, and exceptions. The excep-
lions are waived. The only point relied
upon under the motion is that the ver-
dict for the plaintiff was excessive.
The plaintiff was passenger upon one
of the defendants cars when 1t collided
with another car. She was thrown vio-
lently upon the street pavement and re-
ceived very serious injuries. The evil
dence would warrant jury in finding
that she sustained a fracture of the
skull She was unconscious, or only
partly conscious, for four or five days
lowering between life and death. The
extent of her recovery at the time of the
trial was somewhat in dispute The flu
tllre consequences of the injury are in