MARKELL, J., delivered the opinion of the Court.
These are appeals by plaintiffs from judgments for plaintiffs on verdicts in two suits, tried together, against different insurers on fire insurance policies. The verdicts are based on an appraisal of "the actual cash value" of the property insured. Plaintiffs contend, for a number of reasons, that the appraisal was not binding on them and should not have determined the amounts of the verdicts. The only relevance of the value of the property is in the application of the 80% coinsurance clause. The amount of loss is not in dispute here. As the loss was a partial loss, the effect of the coinsurance clause is that the greater the value of the property the less the liability under the policies. Plaintiffs contend that the value of the property was substantially less than the amount of the appraisal.
The policies in suit provided that, "In case the insured and this Company shall fail to agree as to the actual cash value or the amount of loss, then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected * * *". Defendants, through their adjusters, Insurance Adjusters, Inc., selected Harold M. Cummins. Mr. Cummins had been in the building business for thirty-three years, first with the Consolidated Engineering Company in building, construction and incidentally appraisals, then with a corporation formed by his uncle, his cousins and himself. Since 1945 he has been in the appraisal business, appraising fires and buildings. In the instant case he was designated on May 29, 1947, the appraisal agreement was signed on June 18, 1947 and the award was made on April 21, 1948. During the pendency of this appraisal he took fifteen other appraisal jobs for Insurance Adjusters, Inc.; from May 6, 1946 until the beginning of this appraisal, twelve jobs. Meanwhile he had many appraisal jobs for other insurance
It is generally held, and plaintiffs apparently concede, that the mere fact of other employment by insurance companies does not, as a matter of law, disqualify one from selection as "a disinterested appraiser." Firemen's Fund Ins. Co. v. Flint Hosiery Mills, 4 Cir., 74 F.2d 533, 104 A.L.R. 556; see cases collected in note, 104 A.L.R. 563. Plaintiffs, however, contend that though Cummins' other employments did not disqualify him as a matter of law, the jury should have been permitted to find, as a matter of fact, that he was not "a disinterested appraiser". In connection with misrepresentations, (Bradshaw v. Agricultural Insurance Co., 137 N.Y. 137, 141-144, 32 N.E. 1055), or concealment, ("deceptive silence", Coon v. National Fire Insurance Co., 126 Misc. 75, 78, 213 N.Y.S. 407), such other employment may be considered by the jury on the question of disqualification. But in the instant case there is no evidence of misrepresentation, concealment or other misconduct on the part of either defendants or Mr. Cummins. The court properly refused to submit to the jury the question of disqualification on the evidence of other employment, which as a matter of law is insufficient to show disqualification. Furthermore, there is no evidence or other
Plaintiffs complain that their examination of Cummins was restricted to other employment by Insurance Adjusters, Inc., to the exclusion of employment by other adjusters for insurance companies. The extent of such examination is largely within the discretion of the trial judge. We see no abuse of discretion. Legally insufficient evidence of other employment by the same adjusters would not have been made sufficient by evidence of employment by other adjusters, especially in view of Cummins' testimony that the greater part of his business was work for owners.
Cummins testified that after the appraisers had disagreed as to the cash value and had called in the umpire, the two appraisers and the umpire set down their own figures, added them, divided by three and then agreed upon that figure as the combined judgment of the three. Plaintiffs contend that an appraisal thus arrived at is not valid.
It has been held that a quotient verdict is no more lawful for arbitrators than for jurors. Pearce v. Rickard, 18 R.I. 142, 26 A. 38, 19 L.R.A. 472, 49 Am. St. Rep. 755. If, however, two arbitrators or appraisers strike a mean between the opposing claims of the parties and then adopt it as their appraisal, this is not unlawful, though it might be if they had agreed in advance to accept the mean. Brown v. Bellows, 4 Pick. 178, 191-192, 21 Mass. 179. In the instant case we think the appraisal is not invalid. We do not sanction "quotient verdicts" by arbitrators or appraisers. But without some conscious or subconscious, exact or approximate, splitting of differences, no agreement would be reached by jurors, arbitrators, appraisers or bargainers. There is no evidence that these appraisers agreed to be bound by the result of their computations or otherwise subordinated their judgment to the fall of the dice.
Plaintiffs say the award was invalid because of delay in arriving at it. The loss occurred on March 16, 1947; suit was instituted on March 15, 1948, one day before expiration of the one year policy period of limitation. We intimate no opinion whether the limitation provision would have been applicable in the circumstances. The award was made on April 21, 1948. As late as February 2, 1948 a hearing was had before the appraisers and the umpire. Plaintiffs did not, when they instituted suit, or at any time before the award was made, attempt to repudiate the appraisal agreement or the submission to appraisal. There were a number of reasons, good or bad, for the long delay. The court submitted to the jury the question whether the delay in making the award was unreasonable. The court could not have ruled, as a matter of law, that it was unreasonable.
Plaintiffs contend that the award should be set aside for error of law in that the appraisers and the umpire erroneously held "actual cash value" to be equivalent to cost of reproduction less depreciation. Some courts have held that "actual cash value" is equivalent to cost of reproduction less depreciation, but we think the best considered cases hold that cost of reproduction is not the measure of "actual cash value", but is very important evidence of value. McAnarney v. Newark Fire Insurance Company, 247 N.Y. 176, 159 N.E. 902, 56 A.L.R. 1149; Kingsley v. Spofford, 298 Mass. 469, 476, 11 N.E.2d 487; Bonbright on Valuation of Property, pp. 369-370, 384-394; 6 Appleman on Insurance Law and Practice, § 3823. If we were to take over the appraisers' functions we might doubt whether cost of reproduction, less depreciation, is a reliable guide to the value of this kind of
However, the evidence of value on which the award was based is not reviewable by us. The appraisal clause in the policies in suit provides, "The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and failing to agree shall submit their differences only, to the umpire. An award in writing, so itemized, of any two, when filed with this Company shall determine the amount of actual cash value and loss."
"It is a fundamental principle that where the parties to a dispute decide of their own accord to submit their dispute to arbitration without restriction or condition, the award on the subject matter, in the absence of fraud or mistake, is binding and conclusive upon the parties. J.F. Fitzgerald Construction Co. v. Southbridge Water Supply Co., 304 Mass. 130, 23 N.E.2d 165; Stowe v. Mutual Home Builders Corporation, 252 Mich. 492, 233 N.W. 391. The Court will not review the findings of law and fact made by arbitrators, or substitute its
This rule restricting and preventing judicial review of errors of fact or of law in an award of arbitrators or appraisers is applicable to an appraisal under the usual appraisal clause in a fire insurance policy. "If an award could be set aside under such testimony as was here offered, then the finding of appraisers where the determination is the value of property, could be set aside in every case in which one of the arbitrators should testify that he had come to a mistaken conclusion as to
"Where the award finds facts it is conclusive, where it finds or announces concrete propositions of law, unmixed with facts, its mistake, if one was made, could have been corrected in the court below, and can be corrected here. Where a proposition is one of mixed law and fact, in which the error of law, if there be one, cannot be distinctly shown, the parties must abide by the
Plaintiffs contend that they were entitled to summary judgment for the amounts of the ultimate verdicts and judgments, as amounts regarding which there was no genuine dispute. The only practical bearing of this contention is that it would entitle plaintiffs to interest from the date of the summary judgment, instead of from the date of the verdicts. We think plaintiffs were entitled to summary judgment for $1,023.77, an undisputed separable item against Pacific. This item, however, is not now material, since the jury actually allowed interest on it.
The court granted summary judgment to the extent of holding that defendants were liable to plaintiffs for the loss, the amount of the liability to be determined at the trial of the case. Plaintiffs, in asserting a right to summary judgment for the amounts of the verdicts, stress defendants' pleas of tender of these amounts. A tender of a certain amount in full, if not accepted in full, is not an admission that the amount is in any event due as a part of a larger indebtedness. Defendants pleaded tender on the ground that the appraisal was conclusive. If plaintiffs had accepted the tender the sums tendered would have been unconditionally due. Since plaintiffs did not accept the appraisal but sought to set it aside, it was not certain that plaintiffs would ultimately recover as much as they would under the appraisal. If
Furthermore, at the trial the court, at plaintiffs' request, charged the jury that defendants, notwithstanding their pleas, had not actually made any tender. The result would be incongruous if plaintiffs were entitled to a summary judgment on account of the pleas of tender and also to an instruction at the trial that there had been no tender.
Judgments affirmed, with costs.