contract, unless there is some sufficient reason why such a determination has become unnecessary or impossible.

Fisher v. Merchants' Ins. Co., 95 Me. 486, 50 Atl. Rep. 282; Levine v. Lancashire Ins. Co., 66 Minn. 138, 68 N. W. Rep. 855, 26 Ins. L. J. 36; Kersey v. Phoenix Ins. Co.,

Mich.

97 N. W. Rep. 57.

RULE 36.

Must be Some Evidence of Bad Faith on Part of the Company to Relieve Insured.

Both parties are equally bound to act in good faith in accomplishing the object of an appraisal, and when the assured, beyond the appointment of an appraiser, has taken no steps to render it effective and there is no evidence of bad faith on part of the insurance company, the assured is not relieved from compliance with the condition.

Silver v. Western Assur. Co., 164 N. Y. 381, 58 N. E. Rep. 284, revg. 33 App. Div. 450, 54 N. Y. Supp. 27; Williams. German Ins. Co., 90 App. Div. 413, 86 N. Y. Supp. 98. And see Connecticut Ins. Co. v. Cohen, Md. ,55 Atl. Rep. 675.

RULE 37.

When Appraisal Fails without Fault of Either Party. Provision for appraisal, while valid and binding, is collateral to the contract of insurance; and if appraisal fails without fault of either party to the contract, they are relegated to their legal rights, independent of such provision.

Western Assur. Co. v. Hall, 120 Ala. 547, 24 So. Rep. 936, 28 Ins. L. J. 349. And see Pretzfelder v. Merchants' Ins. Co., 116 N. C. 491, 21 S. E. Rep. 302; Braddy v. New York Bowery Ins. Co., 115 N. C. 354, 20 S. E. Rep. 477; Howard Insurance Co. v. Hocking, 115 Pa. St. 416; Fritz v. British-American Ins. Co., 208 Pa. St. 268, 57 Atl. Rep. 573; Western Assur. Co. v. Decker, 98 Fed. Rep. 381, 39 C. C. A. 383. Compare previous rules.

RULE 38.

Effect of Appraisers' Disagreement and Refusal to Proceed and Failure to Agree upon New Appraisers - Element of Bad Faith.

Where appraisers disagree and refuse to go on and finally break up without making an award and there is a failure to agree upon new appraisers, the parties are relegated to their legal rights, and action can be maintained upon the policy without the appraisal. Where appraisers, or a majority of them, fail to agree upon an award, the plaintiff (unless he is shown to have acted in bad faith in selecting his appraiser) is not compelled to submit to another appraisal and another delay, but may forthwith bring his action.

Pretzfelder v. Merchants' Ins. Co., 116 N. C. 491, 496, 21 S. E. Rep. 302, 123 N. C. 164, 31 S. E. Rep. 470, 28 Ins. L. J. 169, following Insurance Co. v. Hocking, 115 Pa. St. 416. And see Fritz v. British-American Ins. Co., 208 Pa. St. 268, 57 Atl. Rep. 573; Perry v. Greenwich Ins. Co., N. C. S. E. Rep. 889. Compare previous rules.

RULE 39.

49

Waiver of Right to New Appraisal - Fault of the Company. Where an award fails without fault on part of the insurance company, the right, if any, to a new appraisal is waived where it is not asked for, and where the company insists upon maintaining proceedings under first appraisal;' and so wherever the failure to enter upon a new appraisal is the fault of the company.2

1. Levine v. Lancashire Ins. Co., 66 Minn. 138, 68 N. W. Rep. 855, 26 Ins. L. J. 36; American Ins. Co. v. Bell (Tex. Civ. App.), 75 S. W. Rep. 319.

2. Davis v. Atlas Assur. Co., 16 Wash. 232, 241, 47 Pac. Rep. 436, 439, rehearing denied. 16 Wash. 239, 47 Pac. Rep. 485; Reade v. State Ins. Co., 103 Iowa, 307, 72 N. W. Rep. 665.

RULE 40.

Appraisers Act in Quasi-Judicial Capacity-Should be Free from Bias or Partiality — Burden of Proof.

Appraisers act in a quasi-judicial capacity and should be free from all bias and partiality in favor of either party; assured is not bound to submit to an appraisal by interested or otherwise incompetent persons; but interest, partiality, or other incompetency will not be assumed; the burden of establishing it rests upon the assured who makes objection upon that ground; but if either party acts or proceeds with an appraisal, knowing that the appraiser is objectionable, an award when made becomes binding and conclusive.3

1. Hickerson v. German-American Ins. Co., 96 Tenn. 193, 33 S. W. Rep. 1041, 25 Ins. L. J. 422; N. Y. Mutual Savings Assoc. v. Manchester Assur. Co., 94 App. Div. 104, 87 N. Y. Supp. 1075.

2. Western Assur. Co. v. Hall, 120 Ala. 547, 24 So. Rep. 936, 28 Ins. L. J. 349.

Minn.

3. Indiana Ins. Co. v. Boehm, 88 Ind. 578; Produce Refrigerator Co. v. Norwich Union Ins. Assoc., 97 N. W. Rep. 875.

RULE 41.

Meaning of Disinterested Appraiser not an Agent - Concealment Parties Responsible for His Neglect or Misconduct.

The word "disinterested" is not confined to lack of pecuniary interest in the question of loss. A competent and disinterested appraiser means one who is not biased or prejudiced. He is in no sense the agent of the party appointing or nominating him, and he remains at all times under the duty to be fair and unprejudiced. When a false statement is made by the company's agent or adjuster in regard to the attitude of a proposed appraiser for the purpose of inducing

consent to his appointment, which is in that way obtained, and when concealment is practiced in regard to his real attitude to the company nominating him the fact of his habitual employment by it and other insurance companies in same capacity being concealed, when in fact he is not disinterested, good ground is shown for setting aside an appraisal which is grossly below the actual loss sustained, although it has been agreed to by the appraiser selected by the assured;1 an appraiser so far stands for the party appointing him, that the latter is responsible for his neglect or misconduct, but is not biased or prejudiced simply because he is indorser on assured's note. Whether competent and disinterested a question of fact.1

2

1. Bradshaw v. Agricultural Ins. Co., 137 N. Y. 137, 32 N. F. Rep. 1055, 22 Ins. L. J. 161; Hall v. Western Assur. Co., 133 Ala. 637, 32 So. Rep. 257; Kiernan v. Dutchess County Ins. Co., 150 N. Y. 190, 44 N. E. Rep. 698; Kaiser v. HamburgBremen Ins. Co., 59 App. Div. 525, 69 N. Y. Supp. 344; Roval Ins. Co. v. Parlin Co., 12 Tex. Civ. App. 572, 34 S. W. Rep. 401. And see Glover v. Rochester German Ins. Co., 11 Wash. 143; Niagara Ins. Co. v. Bishop, 154 Ill. 9, 39 N. E. Rep. 1102; Produce Refrigerator Co. v. Norwich Union Assur. Soc., Minn. 97 N. W. Rep. 875.

2. Bishop v. Agricultural Ins. Co., 130 N. Y. 488, 29 N. E. Rep. 844; Austin v. Niagara Ins. Co., 16 App. Div. 86, 45 N. Y. Supp. 106.

3. Bullman v. North B. & M. Ins. Co., 159 Mass. 118, 34 N. E. Rep. 169. And see Rule 47. 4. National Ins. Co. v. O'Bryan,

129.

Ark.

87 S. W. Rep.

RULE 42.

Appraisers Are not Partisans - Must be Impartial - Are not Representatives of Either Party.

In the selection of appraisers it is not contemplated that they shall represent either party to the controversy or be a partisan in the cause of either, nor is an appraiser expected to sustain the views or further the

interests of the party who may have named him. And this is true not only with respect to estimating the amount of the loss, but also with reference to the selection of an umpire. They are to act in a quasi-judicial capacity and as a court selected by the parties free from all partiality and bias in favor of either party, so as to do equal justice between them. They must be impartial and nonpartisan.

Hall v. Western Assur. Co., 133 Ala. 637, 32 So. Rep. 257; Goodwin v. Merchants' Ins. Co., 118 Iowa, 601,92 N. W. Rep. 894. But compare with Rule 53.

RULE 43.

Company Must Name Appraiser Who Will Act Promptly — Effect of Prevention or Delay.

The insurance company is bound to choose an appraiser who will act with reasonable promptness in naming an umpire, and on his failure to do so to replace him with another; any intentional prevention or unreasonable delay operates to relieve the assured, if he is without fault, from compliance with the appraisal clause.

Reade v. State Ins. Co., 103 Iowa, 307, 72 N. W. Rep. 665; Harrison v. Hartford Ins. Co., 112 Iowa, 77, 83 N. W. Rep. 820.

RULE 44.

Previous Employment by Insurance Company - Concealment or Misrepresentation.

That an appraiser is friendly to the insurance companies and had been frequently employed by them in same capacity does not of itself show partiality, espe