Grimes v. Home Insurance Co. of New York

Devin, J. The award made by the appraisers, under the agreement of the parties for the submission of the question of the amount of loss due to collision under the terms of the policy of insurance, was properly held not binding on the plaintiff by reason of the absence of notice and opportunity to be heard. Public Laws 1927, ch. 94, sec. 6; Michie’s Code, 898 (f). It is a well recognized rule that the parties to an arbitration proceeding, independent of statute, have a right to be heard and opportunity to present evidence as to all matters submitted. 3 Am. Jur., 929; 6 C. J., sec. 198. “Notice and opportunity to be heard are fundamental.” Waldroup v. Ferguson, 213 N. C., 198, 195 S. E., 615. Hence the plea of estoppel by the first award could not avail the defendant under the facts of this case. But the case was then in the Superior Court at the suit of the plaintiff. The defendant had pleaded to the merits. The issue was joined, and the jury impaneled. It was error, over the objection of the defendant, to transfer the trial of the issue of fact raised by the pleadings to arbitration or appraisement. C. S., 556. The fact that defendant, after 'noting exception to the order of Judge Thompson, participated in the hearing before the appraisers and umpire may not be held to constitute waiver of its exception. As in case of compulsory reference, the defendant preserved its right to trial in the Superior Court and before a jury by excepting in apt time to the order, and again to the award. Lumber Co. v. Pemberton, 188 N. C., 532, 125 S. E., 119; Brown v. Buchanan, 194 N. C., 675, 140 S. E., 749; Cotton Mills v. Maslin, 200 N. C., 328, 156 S. E., 484. The cause is remanded to the Superior Court of Edgecombe County for jury trial on the issue raised by the pleadings, unless some other method of trial be agreed upon by the parties. Error and remanded.