Paine v. Maine Mutual Marine Insurance

Evidence. Auditor, — hearing before. Invoices, bills of lading, or protests, are not admissible as evidence, in a suit upon an insurance policy, to show tbe loss sustained by tbe person insured. An auditor cannot receive in a bearing before bim any but legal evidence.

On report. Appeal by Andre Cushing & Co., of St. John, N. B., from the decision of receivers upon claims filed in insolvency against said respondent company for losses on policies, only a part of which was allowed by the receivers; objections were duly filed in accordance with the provisions of the statute, c. 148, acts of 1873, § 10. The appeal having been entered in this court sitting at nisi prius, the claimants moved for the appointment of an auditor to adjust the claims and to report, according to B. S., c. 82, § 62. The receivers objected to such appointment, for the reason that the case was not such an one as contemplated by the statute authorizing the appointment of auditor. The objection was overruled, and an auditor appointed, who heard the parties, made his report, and also a supplementary report upon a recommitment. The case coming up for trial at the April term, 1878, the claimants offered the auditor’s reports, and these make a part of the case. The receivers offered no evidence, but insisted upon the objections made to the appointment of auditor, and also to the objections offered by them to the evidence as set forth in the supplementary report; objections were duly filed in writing. The protest, bill of lading and invoice, in one of the cases, are to make a part of the case, to be referred to by either party. The case is submitted to the full court on law for decision. It was agreed that the reports were not accepted, when offered, or at any time, but motion having been made by the plaintiff to have them accepted, the question of their acceptance and all the rights of the parties are submitted for the decision of the full court, as before stated. If the objections are both overruled by the court, then judgment is to go upon the auditor’s report; otherwise, for the amount found and reported by the receivers. The court also to decide questions of cost. Report of auditor, indorsed upon warrant. “ To the honorable judge of the supreme judicial court in and for the county of Penobscot: Pursuant to the within commission to me, I gave the parties therein named notice of the time and place when I would attend to the business therein named; at which time and place Charles P. Stetson, Esq., in the interest of the Maine Mutual M. Ins. Co., and Andre Cushing & Co., in behalf of themselves, appeared, the said Charles P. Stetson protesting that by his said appearance he waived no rights, but reserved full permission to object to the proceedings, and to any submission to the auditor. And now, having heard the parties and examined their respective vouchers and proofs, I have stated the accounts and all credits between said parties, as appears in the annexed accounts and the account current, and do hereby report that the said annexed statement shows the true and correct accounts between the said parties, as found by me. For services as auditor, I ask the allowance of one hundred and twenty five dollars. Albert Marwick, auditor. February 5th, 1878.” Supplementary report of auditor. “ To the honorable justice of the supreme judicial court in and for the county of Penobscot: In the action, Albert W. Paine, insurance commissioner, complainant, v. Maine, M. M. Ins. Go., the report heretofore made by me, as auditor on the claims of Andre Cushing & Co., having been re-committed, I have further to report, that at the hearing of the parties, as stated in my previous report, the claimants, in addition to other evidence, also offered certain protests, bills of lading, and invoices, as vouchers relating to the several cargoes for the loss of which, wholly or partially, the claims under consideration were made. To the admission of these papers as evidence, the receivers objected. But finding that the papers are such vouchers as are received by adjusters of marine losses, and also by marine insurance companies as proof of claims such as made in the case, and being found genuine, and regarded by me as pertinent to the inquiry, I accepted the same as competent evidence, properly to be considered by me as auditor; and I have accordingly so treated them in making my report. Albert Marwick, Auditor. Portland, April 35, 1878.” cited Field v. Holland, 6 Oranch. 8. Whitwell v. Willard, 1 Met.' 219. Quimby v. Cook, 10 Allen, 32, 33. Corbett v. Qreenlow, 117 Mass. 173. Washington Co. v. Hawes, 6 Gray, 376. Lazarus v. Insurance Co., 19 Pick. 81. As to course of procedure before the auditor. Field v. Holland, supra. Howard v. Kimball, 65 Maine, 326. Jones v. Packer, 6 N. H. 20. 11 N. H. 246. 18 N. H. 135. 31 N. H. 419-423. Field v. Porter, 32 N. EL. 381. 38 N. H. 418. 27 N. BL. 244. Locke v. Bennett, 7 Gush. 451. Barnard v. Stevens, 11 Met. 298. Allen v. Hawkes, 11 Pick. 361. Holmes v. Hunt, 122 Mass. 514. Commonwealth v. Cambridge, 4 Met. 35. Doyle v. Doyle, 56 N. EL. 567. Perkins v. Scott, Id. 55. contended that the documents offered by the claimants and received by the auditor, were not sufficient or legal evidence of the loss. 2 Greenl. Ev. § 385. 2 Pars. M. Law, 489. Whitwell v. Willard 1 Met. 218. Field v. Holland, 6 Cranch. 8. Allen v. Hawkes, 11 Pick. 359. The court will examine whether the master has admitted incompetent testimony, or based his conclusion upon facts not sufficient; and if he has, will set aside or re-commit the report. Fair v. Manhattan Ins. Co., 112 Mass. 331. Merrill v. Bussell, 12 N. IT. 75. Breed v. Gove, 41 N. BL. 453. Jones v. Stevens, 5 Met. 379. Bopesv. Allen, 9 Allen, 502. Morrill v. Keyes, 14 Allen, 222. Kendrick v. Tarbell, 27 Yt. 514. Cottrel v. Vanduzen, 22 Yt. 515. Gilbert v. Tobey, 21 Yt. 307. Bradley v. Bassett, 13 Conn. 560. Cary v. Herrin, 59 Maine, 361.