148 BLYTHEVILLE COURIER V. MCCALL. [169 , BLYTHEVILLE COURIER V. • MCCALL.. Opinion delivered June•29, 1925. . 1. CONTRACTS—METHOD OF SETTLIHG . DIFFERESCEs.: —Parties to 'a contract may provide as to the metnod of settling difference§ arising under it, and "a rule promulgated by a newspaper holding a subscription contest that, should any question arise, the . decision of the manager should be absolute and. final is valid. 2. CONTRACTS—DECISION OF ARBITRATOR.—Under a contract providing for submission of disputes to 'ati arbitrator, tlie decision' of such arbitrator must be upon iubstantial points of difference, and made fairly, impartialry and in good .faith.. • . 3. CONTRACTS—DECISION OF ARBITRATOR—GOOD FAITH.—Where the rules of a newspaper subscription contest barred any "near relative" of the newspaper's employees, and provided that question • arising in this contest should be determined finally. by the management, a decision of the management that a brother-in-law was not a "near relative" was final, fin the absence of fraud. •
BLYTHEVILLE COURIER V. MCCAll. 149 A-. ppeal fram Mississippi Circuit Court; Chicka, sAWba District ; W..W..Bandy, Judge ; rever§ed. -Little,'Buek & Lasley and W: ;ate, for apPet-lent. • •, 7 - Nelson & Crawford; for appellee. SMITH, J: In the fall of 1922 the Blytheville Com, neWspaPer pUblished in the city of Blytheville; put on a campaign to increase' its subscription list, and. as an aid thereto offered prize§ to those securing sub— scriptions. The priZe offered to the one' securing' the largest number of subscribers was an automobile Of the value of . $1,975. -The second prize was $300 in cash. ' When the campaign was put on, rules and regulations governing it were promulgated and published in . the' paper.. There' were tWenty-one of these rules, the -.third. of which reads as' follows : "3. No employee 'or hear • relative Of any employee of The Blytheville Courier is eligible- to enter this distribution. The Blytheville Courier ' , reserves the right* to reject any nominatión." The twenty-first rule provided that " The Blytheville Coiirier guarantees fair' and impartial treattnent ta all candidates,. but, should any question arise, the decisio'n of the management will be absolute and final." • Under the provisions of the rules prOmulgated; the campaign was' to • ektend Over a period of six week§; arid wa g _ to close Saturday night, November,' 9, 1922.. The' twO-principal contestants were Virginia McCall, 'a _girl elever) y on rs- old,- rend -Mrs.--j'.= few 'days before the campaign closed 'Dr. McCall, the father of the:-girl, discovered . that a boY who 7Was employed' in the mechanical- department of the Paper-Was-a brother-in-law 'of Mrs. Brooks; and he -pratested'against Mrs.. Brooks' candidacy on the ground : that ' , she was • ineligible under the rules of the contest. The:(contest manager decided that Mrs. Brooks was . not ineligible; and Abe : contest p roceeded to- its close: • On' Saturday night, when the votes . were to be finally 'counted, Dr. McCall appealed before the judges who had been selected -
150 BLYTHEVILLE COURIER V. MCCALL [169 to count the vote, and renewed Ms protest against Mrs. Brooks' eligibility., The manager of the contest advised the judges that they had no authority to decide this question, that it had already .been settled. The judges then. proceeded with the count and announced the result of the contest to be that Mrs. Brooks had °received the highest number of votes and was entitled to the autorao-, bile,, and that Virginia McCall had received the second highest number of votes and was the winner of the $300. The manager of the contest then delivered the automobile to Mrs. Brooks, and mailed a check.for $300 to the young lady. . Dr. McCall renewed his protest and. declined to permit his daughter to cash the check, but mailed it to his attorney. The wife of the attorney was very ill at the time and required the constant care and attention of her husband, and after a few months'.illness she died. When the attorney was able to return to.his office and give attention to his professional business, he tendered:a return of the check and demanded the ,surrender of the automobile, and upon this demand being refused brought this suit to recoyer the value of the autoT mobile. At the trial below' the court declared the law , to be that Mrs. Brooks was ineligible as.a contestant, and to find for the plaintiff unless the jury, found the fact to be,. that plaintiff had, under the circumstances .of the case, retained possession of the check beyond a reasonable time for its return. There was a verdict . and judgment . for the plaintiff, from which the . defendant has appealed. We think the court. was in error in declaring Mrs. Brooks ineligible. It is an admitted fact.that her brother-in-law was employed by the newspaper putting on the contest, but there is at least some question, some room for reasonable and honest. difference of opinion, as. to whether Mrs. Brooks was a !'near relative" of the. employee within the meaning of the rules governing the contest. There were twenty-one of these rules, and it • is obvious that it was contemplated that differences of
ARH.] BLYTHEVILLE COURIER V. MCCALL. 151 opinion might arise in their interpretation, and the last— or the 21st—rifle was intended to take care of that situation. It rirovided that, should any question arise, the decision of the manager should be absolute and-final. These rules formed the contract under which the contest was . held; and the rifle making the. manager of the contest the referee on all questions growing out of the contest is a part of the contract. The parties to a contract may provide in the contract how differences arising under it may be adjusted. Such provisions are not unusual, and their validity has been uniformly upheld. Boston, Store v. Sohleuter, 88 Ark. 213 ; Carlile v. Corrigan, 83 Ark. 136; Williams v. Bd..Directors of Carden's Bottom Lev ' ee Dist. No. 2, 100 Ark. 166; Hat-field Special School Dist. v. Knight, 112 Ark. 83. Of course, the point of difference to be .decided by the referee or the arbitrator must be substantial and not capricious. The arbitrator must act : fairly and impartially. He must exercise an honest and intelligent judgment, and, if he fails to do this, or if he Makes such groSs mistakes as' necessarily imply bad faith, his decision will not be binding, and it would then become the province of the courts, in appropriate litigation, to decide the question at•issue. RespeCtive counsel have cited numerons authorities as to the meaning of the phrase, "near relative:" We do not review them here because the phrase is sufficiently -a-mhiguous _to furnish a -reasonable-hasis = for -a- diffetence Of opinion as to its meaning. The management of the contest for appellant was conducted by a Mr. Morrison, who was a representative of "The Portlowe Plan," a concern engaged in putting on and conducting campaigns of this character for various newspapers to increase their circulation. There is no intimation that Morrison decided corruptly or arbitrarily, or that he did not exercise his honest and best judgment in the decision of the question as to the meaning of the phrase "near relatiVe." He testified that he did,
and there is no contradiction of this testimony; and, as it cannot be saj.d. that the question is so free from doubt as to indicate a mistake so °gross as to indicate bad faith, his decision, which was that of the management, must be accepted as final and binding on the contestants. The. judgment must therefore- be reversed, and, u.s the case haS been fully developed, it will be: , clismissed. ,,• ,
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.