Superior Court of Pennsylvania, 1911

Ewens v. Gunning

Ewens v. Gunning
Superior Court of Pennsylvania · Decided October 9, 1911 · Beaver, Bice, Head, Henderson, Morrison, Orlady, Porter
48 Pa. Super. 192; 1911 Pa. Super. LEXIS 355

Ewens v. Gunning

Opinion of the Court

Opinion by

Orlady, J.,

This action of assumpsit is founded on an award made by arbitrators who were selected in accordance with an agreement entered into between the plaintiff and the defendant. The defendant acquired title to a property adjoining the one occupied as a tenant by the plaintiff, and desired to make alterations which involved the wall common to both properties; an agreement was made with the owner of the property occupied by the plaintiff, by which the old wall would be torn down and rebuilt of greater thickness on the same location, and while the work was being done the defendant would provide for any injuries done to the tenant (Ewen). This resulted in an agreement in writing between the parties to this action, by which the defendant agreed to replace everything in substantially its then condition, and as to the inconvenience and damage, incident to said improvement, Gunning was to place a temporary wall in place-of the one removed, and after it,was rebuilt on its present site, to remove the temporary structure so that the room of Ewen should be of the same size and condition as formerly. The parties were each to choose one arbitrator “to adjust the matter of injuries to said Ewen’s store and business, their finding and arbitration to be final.”

Pursuant to this agreement, the parties named two arbitrators, who met, viewed the premises, heard the parties and made an award of $300 in favor of the plaintiff.

The agreement did not define or limit the scope of the investigation, or the character of the testimony on which the arbitrators were to found the award. The contention of the defendant is, that the award was based on matters not submitted to the arbitrators by the agreement. It is manifest that the question presented to the arbitrators was, to adjust the matter of injuries to the store and *196business, which resulted from the change of the building during its reconstruction by the defendant, and to indemnify Ewen from loss caused by that improvement. No person could definitely anticipate every detail of the work to be done, and the evidence was not reduced to writing before the arbitrators; their eyes were as effective witnesses as any oral proof before them. It is not alleged that the award is excessive, or unreasonable, and the interpretation given by the arbitrators to the agreement is founded on the nature and the character of the subject-matter, and of the relation of the parties to the work when they submitted the question to them.

The words employed in the agreement warranted the arbitrators in investigating every phase of the alterations during the progress of the work in order to adjust the matter of injury to the store and business as it was then conducted. That award was intended to be absolute and final. It was not necessary for the plaintiff to show that the work done by the defendant, in making the changes in and about the building, was carried on in a reckless or even careless manner, or that a less objectionable method could have been employed, as it is conceded, that by the exercise of the greatest care and by taking every precaution, there would be necessarily some injury done to the plaintiff’s business during the progress of the work as it was arranged by the defendant, and it was to compensate him for these very damages that the parties arranged for the arbitration of any differences that might arise between them.

The consent of Ewen to the change was essential before Gunning could carry out his project, and the arrangement for compensation by a tribunal of their own selection was reasonable and proper. There was no limit imposed on the arbitrators as to the character of their investigation, and the offers to show that the arbitrators acted improperly, or upon matters that were not within the scope of the agreement were not sufficiently explicit to warrant the court in receiving the evidence. No testimony was *197offered to warrant the court in reopening the controversy and submitting it anew to the jury.

The assignments of error are overruled and the judgment is affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.