Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1923-03-28
FROM THE LAW COURT.

FROM THE LAW COURT.
Eilsworth-Bar Harbor Pauper Case
Oakes Fire Insurance Cases,
hescrIpt has been returned from
the law court in the pauper case Of
Ellsworth VS. Bar Harbor. This was
an action on account, to establish the
pauper residence of Charles A.
emerson. 1t was tried at the April
term last year, verdict being re-
turned for plaintiff. 1t went to the
law court on motion for new triar
which has been sustained. The
rescript of Justice Wilson follows.
To establish home in a town tbera
must De personal presence with an in
tent to remain, OF in other words to NO
side there. If absent from such town
"llh1h the hve years necessary. to
estaollsh settlement without a con-
tlnued fixed intention to return. the
conrnuity of the home is broken and
the settlement is not acquired.
Testimony of the person whose set.
tiement is being investigated as, to his
ineent to return, while admissions can
nave little weight when his acts 5ur-
ing the period in question ref,ote his
! declarations made at the time. of the
trial o
IL IS clearly apparent that the yer
alct OF the jury was unwarranted upon
the evidence and that the jury must
nave misunderstood or misapplied the
law 10 the facts they were warranted
IN nndlng from the evidence, or were
1nnuenced by some bias or prejudice.
Entry will be: Motion sustained
New trial granted.
FIRE INSURANCE CASES.
me nre insurance cases, Mrs. Alice
T.. cakes of Seal Harbor VS. fire in
surance companies, to recover for
property burned in August, 1921. the
defense was a waiver of claim be-
cause the plaintiff had signed an ac-
ceptance of the findings of a commits
sion appointed to adjust the loss. fix
sion appointed to adjust the lost. fix
ing II at $3.50. Mrs. Cakes claimed
she did not know the nature of the
paper she signed, and sued to re-
cover $4,000, at which she estimated
her fire loss The. cases were tried at
the April term last year, Justice
Dunn ordering non-suit after plain
LII case was in. The case went to
the law court on exceptions The re-
SCRIPT by Judge Wilson follows:
where Toss or damage in case of fire
is submitted to referees under the pro-
visions of the standard policy of in
surance in this State, the award of the
referees does not furnish a basis for
action. In case suit is brought to re-
I tba 1occ
The award if valid, may be offered as
conclusive of the amount of the dam
age.
In an action under section 49, chan
ter 81, r. s., the statute does not re-
qu1re the insured to set forth in his
! account annexed" anything more than
the amount claimed as due both as
principal sum and interest; and alIere
that he has compiled with all the con-
ditions of his policy. If the amount
shown to be due is less than the
amount claimed In the account an
nexed' 1T will not prevent a recovery
or the amount actually due, unless
fraud is shown.
The provision in the standard policv
for a . reference to determine the
fO'o
than mere appraisement or view, and
requires notice to both parties and an
opportunity to be heard and present
evidence While the referees may de-
termine the nature and amount of evil
dence they will hear, they may not
arbitrarily exclude either party from
participating in the proceedings to de-
termine the amount of the loss. Even
, if either party has no other evidence
! other than his own to present. he is
entitled to be present and present his
own views of the loss he has suffered
The arbitrary exclusion, therefore of
the plaintiff by the referees from the
proceedings to determine her loss, was
unwarranted, and as a result the
award of the referees was not valid
and binding
To constitute a waiver the party al
legged to have waived must be shown
to have known and appreciated what
his rights were, The plaintiff in this
case did not understand that her rights
We're being finally determined.
The purpose of the statute author
izing such reference will not be served
if the proceedings are permitted to
relapse illo mere drpltrtry APP
praisal on view or from personal
knowledge of the referees If it is to
result in an award which shall be con-
elusive on both parties in a court of
law, full opportunity to be heard after
notice to the parties must be given and
by referees who are disinterested and
impartial.
The defendants having refused to
enter into another agreement of ref
erence and indicated that they would
not grant further hearing under the
agreement already entered into the
non-suit should not have been granted.