cially where it appears that assured's appraiser was friendly to and employed by him and agreed with the companies' appraiser, so that services of an umpire were not needed or called for;1 it should be made to appear that he had formed a preconceived opinion or that he was biased or prejudiced;2 or that there was an element of concealment, misrepresentation, or fraud in obtaining his selection. A preconceived opinion as an expert derived from personal inspection does not of itself disqualify an appraiser, though may be proper to be considered by a jury.*

1. Remington Paper Co. v. London Assur. Co., 12 App. Div. 218, 43 N. Y. Supp. 431.

2. Stemmer v. Scottish Ins. Co., 33 Oreg. 65, 53 Pac. Rep. 498, 27 Ins. L. J. 972; Continental Ins. Co. v. Vallandigham, Kv. 76 S. W. Rep. 22; Produce Refrigerator Co. v. Norwich Union Ins. Assoc., Minn. 97 N. W. Rep. 875. 3. Cheney v. Martin, 127 Mass. 304. See Rule 41. 4. National Ins. Co. v. O'Bryan, Ark. 87 S. W. Rep.

129.

RULE 45.

Facts as to Previous Employment Should not be Concealed. Previous acting in same capacity does not of itself disqualify an appraiser; there must be actual bias, but the facts or previous relations should not be concealed. Cheney v. Martin, 127 Mass. 304.

RULE 46.

Appraiser Named by Insured a Public Adjuster, Partner, or Agent Question of Fact.

The fact that an appraiser named by assured was at one time a public adjuster, or had been the partner of an agent of assured, does not as matter of law render him incompetent; the question whether he was competent and disinterested is one of fact for a jury.

Meyerson v. Hartford Ins. Co., 17 Misc. 121, 39 N. Y. Supp. 329, affg. 16 Misc. 286, 38 N. Y. Supp. 112, reargument denied, 39 N. Y. Supp. 1128.

RULE 47.

Responsibility of Parties for Neglect or Misconduct of
Appraisers.

When appraisers are appointed they stand respectively for the parties appointing them. If either improperly neglects his duty the party appointing him is responsible for such neglect. If either insists upon an unreasonable requirement which has the effect to defeat an appraisal his principal is responsible therefor. If either refused to go on with the work or acted in such bad faith as to prevent the accomplishment of the appraisement within a reasonable time the principal of the other appraiser is absolved from further compliance with the condition in the policy. In such a case it must be said that the appraisal is not pending, but has been abandoned.

Niagara Ins. Co. v. Bishop, 49 Ill. App. 388; Bishop v. Agricultural Ins. Co., 130 N. Y. 488, 29 N. E. Rep. 844; Carp v. Queen Ins. Co., 104 Mo. App. 502, 79 S. W. Rep. 757; Fowble v. Phoenix Ins. Co., 106 Mo. App. 527, 81 S. W. Rep. 485. And see Etna Ins. Co. v. Davis (Ky.), 55 S. W. Rep. 705.

RULE 48.

Appraisers Must not Delay on Account of Advice of Insured's Counsel - Not Obliged to Follow Unsigned Directions.

Appraisers are not justified in delaying their work by a difference of opinion resulting from advice of assured's counsel; they can disregard such advice and proceed with their work, leaving law questions to be determined by the proper tribunal. Such delay is not chargeable to the assured; and they are not obliged to follow detailed directions indorsed upon the sub

mission agreement, but unsigned, their failure to do so does not affect validity of the award.2

1. Austin v. Niagara Ins. Co., 16 App. Div. 86, 45 N. Y. Supp. 106.

2. Enright v. Montauk Ins. Co., 15 N. Y. Supp. 893, 61 Hun, 625 (memo., not reported).

RULE 49.

Insured Bound by His Inventory-Effect of Fraud by Company's Adjuster.

The insured is bound by an inventory furnished and certified by him and upon which appraisers based their award. He cannot subsequently complain that articles or items were omitted from the inventory and appraisal,1 but otherwise when the omissions were induced by the fraudulent act or representation of the company's adjuster.2

1. Kentucky Chair Co. v. Rochester German Ins. Co. (Ky.), 49 S. W. Rep. 780. And see Chandos v. American Ins. Co., 84 Wis. 184.

2. Herndon v. Imperial Ins. Co., 110 N. C. 279, 14 S. E. Rep. 742. And see Hong Sling v. National Ins. Co., 7 Utah, 441; Morley v. Liverpool, L. & G. Ins. Co., 85 Mich. 210.

RULE 50.

Insured Entitled to Notice and Opportunity of Being Heard.

The insured is entitled if he desires and does not waive it to have notice or knowledge of the meeting of appraisers and an opportunity to draw their attention to the items of his loss and make representations and explanations to them concerning the nature thereof and thus insure a consideration of his entire claim and guard against omissions and misconduct. Their fail

ure or refusal to listen to such statement may be an element of evidence in establishing misconduct or that the appraisers were not unbiased, unprejudiced, and disinterested, requiring setting aside of the award;1 unless so desired, insured not entitled to notice of meetings of the appraisers, but is entitled to such notice when an appraiser and umpire act together.2

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1. Kaiser v. Hamburg-Bremen Ins. Co., 59 App. Div. 525, 69 N. Y. Supp. 344, afid., 172 N. Y. 663, without opinion; Springfield F. & M. Ins. Co. v. Payne, 57 Kans. 291, 46 Pac. Rep. 315, 26 Ins. L. J. 46; Citizens' Ins. Co. v. Hamilton, 48 Ill. App. 593. And see Vincent v. German Ins. Co., Iowa, N. W. Ren. 458; Stout v. Phoenix Assur. Co., N. J. Eq. 56 Atl. Rep. 691; Sterling v. German-American Ins. Co., N. J. Eq. 60 Atl. Rep. 200; Redner v. New York Ins. Co., 99 N. W. Rep. 886. See Rule 56.

Minn.

2. Schmitt v. Boston Ins. Co., 82 App. Div. 234, 81 N. Y. Supp. 767; Townsend v. Greenwich Ins. Co., 86 App. Div. 323, 83 N. Y. Supp. 909, affd., 178 N. Y. 634, without opinion. And see Rules 51, 54, 64.

RULE 51.

Appraisers Must not Proceed Secretly or Independently-If Evidence Taken, Insured Must Have Opportunity of Being Present.

Appraisers cannot proceed by secret or independent investigation, nor can they proceed together in taking evidence without affording assured or his counsel an opportunity of being present,' but an individual investigation by an appraiser, in good faith, in absence of others, does not necessarily render an award void.2

1. Christianson v. Norwich Union Ins. Soc., 84 Minn. 526, 88 N. W. Rep. 16; Phoenix Ins. Co. v. Moore (Tex.), 46 S. W. Ren. 1131; Citizens' Ins. Co. v. Hamilton, 48 Ill. App. 593.

2. Farrell v. German-American Ins. Co. 175 Mass. 340, 56 N. E. Rep. 572. See Rules 50, 54, 56.

RULE 52.

Duties of Appraisers Substantially Same as Arbitrators.

The appraisal under the standard form while not strictly the same proceeding as an arbitration and an award at common law or under a statute, and the decided cases under latter are not always applicable;1 yet appraisers occupy the position of arbitrators and their duties are substantially the same.2

1. Strome v. London Assur. Co., 20 App. Div. 571, 47 N. Y. Supp. 481, affd., 162 N. Y. 627, without opinion. And see De Groot v. Fulton Ins. Co., 4 Robt. 504; Hall v. Norwalk Ins. Co., 57 Conn. 105; Zallce v. Laclede Ins. Co., 44 Mo. 530; Hanover Ins. Co. v. Lewis, 28 Fla. 209, 10 So. Rep. 297; Bradshaw v. Agricultural Ins. Co., 137 N. Y. 137, 32 N. E. Rep. 1055; Enright v. Montauk Ins. Co., 15 N. Y. Supp. 893.

2. Caledonian Ins. Co. v. Traub, 83 Md. 524, 531, 35 Atl. Rep. 13, 25 Ins. L. J. 791; Kaiser v. Hamburg-Bremen Ins. Co., 59 App. Div. 525, 69 N. Y. Supp. 344.

In England the proceeding seems to be subject to the provisions of the Arbitration Act. Baker v. Yorkshire Ins. Co. (1892), 1 Q. B. 144.

RULE 53.

Appraisal not an Ordinary Arbitration.

An appraisal is not an ordinary arbitration where the parties hear witnesses and appear by counsel and act upon sworn evidence only. It is strictly an appraisal and ascertainment in a particular manner of the amount of the loss, made by two or three parties, as the case may be, in which they act upon their own judgment, with such information as they can obtain in an informal way, and in which the appraiser chosen by each party is supposed and expected in a restricted