Lively v. Hunter , 130 Ga. 106 ( 1908 )

Atkinson,' J.

1. The proceedings to arbitrate were in strict ■compliance with the provisions of the Civil Code upon the subject ■of arbitration, as found in sections 4485 et seq., with the single exception which related to the manner of selecting the third arbitrator. The statute provides that “every arbitration under this provision shall be composed of three arbitrators, one of whom shall be chosen by each of the parties and one by the arbitrators chosen by the parties.” Civil Code, §4487. In the case at bar the parties each selected an arbitrator and themselves agreed upon a third arbitrator. In all other respects the statute was literally followed. ‘The third arbitrator so selected served with the two arbitrators, •■and the case was heard by all three and the award returned by them. The selection of the third arbitrator under these conditions was not a substantial departure from the statute. It is true the third arbitrator was selected by the parties; but he having acted with the other two arbitrators, it will be deemed that they adopted the choice expressed by the parties and agreed upon him as the third arbitrator and one of their number. By adopting the selection made by the.parties jointly the two arbitrators selected by ■the parties separately, in effect, selected the third arbitrator. The ■contract for submission expressly and affirmatively provided that "“said award is to be conducted under the provisions of the Code ■of Georgia, known as the statutory arbitration,” and that the award should be “returned to and made the judgment of the superior ■ court of said county.” The intention of the parties to have a statutory arbitration is thus made expressly to appear; and inasmuch as the law in such cases gives to the two arbitrators selected separately by the respective parties the right to select the third ■arbitrator, if they in fact accept and act with an arbitrator selected by the parties, the reasonable inference is, that, having a right so to do, they in fact ratified and adopted the selection made by the parties. Adoption would be equivalent to original selection. Under such circumstances, it may be said that substantially there was compliance with the statute, and the award returned, if not objectionable for some other cause, was entitled to be made the judgment of the court. The intention of the parties in a ■case of this character is entitled to consideration upon'the question of whether the arbitration was under the common law or under the statute. See, in this connection, Price v. Byne, 57 Ga. 176 ; Crane v. Barry, 47 Ga. 476.

2. Another exception is that the award was beyond the scope ■of the submission,.in that the question of damage was not comprehended. An examination of the articles of submission completely .answers the criticism. The agreement was- that the arbitrators ishould determine “whether the health or property of plaintiffs 'have been injured or damaged by the use of the 'warehouse, . . .and [whether] the injunction now in force shall be made permanent.” Under this submission the arbitrators were clearly authorized to deal with the question of damage to the extent recited in the award. Another exception complains that no evidence was submitted tending to show that the erection of the warehouse would be a nuisance and would damage the plaintiffs. That was-not the question submitted. The questiqn.was whether the use off the warehouse for the storing of guano and chemicals would damage the health and property of plaintiffs. Upon the damage arising from use there was ample evidence to support the award.

3. Other exceptions complained of the award upon the grounds,, that no sufficient reasons were shown to authorize the grant of an injunction, and that the question submitted was one specially vested in the superior court for decision, and could not be delegated, to arbitrators. When a pending suit in which a final injunction is prayed is referred to arbitration, the award is analogous to the-finding of a jury. There is no reason in such a case why the matter should not be referred to arbitration, and why the finding that, an injunction be granted (the same having been, by order of the judge, directed to be entered on the minutes and thus made the judgment of the superior court), should not be valid, for it is in effect the granting of the injunction by the court upon the finding by-the arbitrators in favor of the contention of the petitioner upon the issues submitted. This is not a question arising outside off the superior court and referred to arbitrators by agreement, but a method’ of determining the controversy in a pending cause. Nor is this the grant of an injunction pendente lite, which is a matter, involving the exercise of discretion by the presiding judge, but off an injunction after final trial on law and facts. There was sufficient evidence to sustain the award.

4. Certain exceptions complained that the award should beset aside, because the record discloses that F. J. Hunter and B. O. Medlock are joint executors, and that Medlock was not a party to-the submission; also, that Hunter'signed the agreement for sub-' mission, not as executor, but as an individual. These objections, came too late. If either were meritorious, they should have been-urged at the time of submission to arbitration, and not after the: result had been ascertained. While Hunter signed only his individual name, it appears throughout the agreement that he was-acting in his capacity-as executor. It does not appear that the-signing in the manner indicated was the result of any fraud. The defendants knew, at the time the agreement was entered into, that, he executed it in his capacity as executor, and did not object or raise an j question as to the sufficiency of the submission.

5. Another' ground of éxception complains that no proof was adduced before the arbitrators showing title in the plaintiff to the property alleged to have been damaged. The question of title was not submitted to the arbitrators. That question was waived. By implication, the defendants conceded-title to be in the plaintiffs by consenting to arbitrate the question of damage and injunction. It was expressly stipulated that if the arbitrators should find in favor of the grant of an injunction, the defendants would not in the future use the warehouse for the purposes objected to.

6. No sufficient cause appears in- any of the other exceptions to authorize a reversal of the judgment of the court below.

Judgment affirmed.

All the Justices concar, except Holden, J., who did not preside.