Arbitrament and Award. Election. Where in a pending action of tort for personal injuries the parties file in court an agreement of submission to arbitration to determine the amount of the damages, which in the main is in the terms of a statutory submission under R.L.c. 194 but is void as a submission under that statute from a failure to comply with its terms, and the agreement is "allowed" by the court, if one of the parties to the action, in opposing a motion to dismiss the reference to arbitration and reject an award made under it, asks for rulings that the reference and the award are valid under the statute and are in compliance with its terms, that party is bound by these requests and afterwards cannot take the ground that the reference although void under the statute is good as a reference for the assessment of damages under an order of court.
An attempted submission to arbitration under R.L.c. 194, which provides that the arbitrators shall hear the parties only in case they consider hearings necessary, is void for want of compliance with the statute.
An attempted submission to arbitration under R.L.c. 194, which provides that if two physicians named as arbitrators are unable to agree as to the damages caused by certain personal injuries they shall call in as a third arbitrator some reputable physician on whom they agree and that the award of a majority of the three arbitrators shall be final, is void for want of compliance with the statute.
Where two several causes of action of a wife and her husband against the same corporation and arising from the same injuries are submitted to arbitration by an agreement under R.L.c. 194, an award of a round sum to the wife and her husband jointly is void.
LORING, J.
The parties to these two actions at law might have submitted to arbitration the matters in dispute between them by a submission in pais, a submission under the statute, or by a rule of court made in each action. If the first method of procedure had been adopted, the only way of enforcing the award would have been by an action on the award when made. If the second had been adopted, it would have been an independent proceeding in court. The third method of procedure is the only method which proprio vigore would have ended the further prosecution of these two actions.
Had it not been for the first, second and thirty-first rulings asked for by the defendant, it might have been somewhat difficult to decide which method of submission to arbitration the parties in these actions intended to take. On the one hand the submission in the main is in the terms of a statutory submission under R.L.c. 194. On the other hand it was filed in the two actions and "allowed" by the court.
But the defendant is bound by its first, second and thirty-first requests for rulings, in which it in effect asked that the submission should be treated as a submission under the statute. As a statutory submission it is void. It departs from the form prescribed in R.L.c. 194, in providing in substance (first) that no hearings are to be had except in the discretion of the arbitrators, and (second) for the selection of "some reputable physician" as a referee if the two arbitrators named are unable to agree. These are matters of substance, and render the submission void as a submission under the statute. As to the second objection stated above see Monosiet v. Post, 4 Mass. 532; Franklin Mining Co. v. Pratt, 101 Mass. 359. As to the general principle see Abbott v. Dexter, 6 Cush. 108; Bent v. Erie Telegraph Telephone Co. 144 Mass. 165. This rule was not overthrown by the recent decision in Giles v. Royal Ins. Co. 179 Mass. 261.
Since the defendant elected to treat the submission to arbitration as a submission under R.L.c. 194, and as a submission under that statute it is void, there was no error in proceeding with the trial of these two actions in the court below.
It is perhaps worth while to state in addition that the present award in any event was bad because it was a joint award on the submission of two several causes of action. See Giles v. Royal Ins. Co. 179 Mass. 261.
The appeal is not properly before us, no final judgment having been entered.
Appeal dismissed; exceptions overruled.