Kirk v. R. Stanford Webb Agency, Inc.

330 S.E.2d 262 (1985)

J. Loyd KIRK and wife, Leone Kirk, and J. Loyd Kirk Corporation v. R. STANFORD WEBB AGENCY, INC.

No. 8428SC921.

Court of Appeals of North Carolina.

June 4, 1985.

*264 Bennett, Kelly & Cagle by Harold K. Bennett, Asheville, for plaintiffs-appellants.

Van Winkle, Buck, Wall, Starnes and Davis by Marla Tugwell and O.E. Starnes, Ashville, for defendant-appellee.

EAGLES, Judge.

Plaintiff first assigns as error the trial court's refusal to instruct the jury as specially requested. We find no error.

Without setting out the requested instruction herein, we note that the jury answered the issue to which the requested instruction pertained, i.e., negligence of defendant in failing to procure sufficient insurance to cover plaintiff's loss, in plaintiff's favor. Accordingly, even if there were error on the part of the trial court in failing to instruct the jury as requested by plaintiff, the error is harmless. Key v. Merritt-Holland Welding Supplies, Inc., 273 N.C. 609, 160 S.E.2d 687 (1968).

The main thrust of plaintiff's argument here seems to be that the issue of contributory negligence should not have been submitted to the jury. We disagree.

While there was sufficient evidence from which the jury could (and did) find that defendant insurance company was negligent, there exists in North Carolina a duty for the insured to read the terms of the insurance policy. Elam v. Smithdeal Realty and Insurance Co., 182 N.C. 599, 109 S.E. 632 (1921). The evidence that plaintiffs did not read the policy is undisputed in this case. There was also sufficient evidence from which the jury could find that plaintiffs did not know the true value of their property and failed to inform defendant of its true value.

We recognize that insurance policies are often complex and may be difficult for the average insured to comprehend. Our examination of the policy here shows the co-insurance provision of the policy to be plain and unambiguous. Further, we note that J. Loyd Kirk, the plaintiff who conducted the insurance transactions with defendant, had obtained a four year engineering degree from North Carolina State University and an M.B.A. degree from the University of Southern California. He worked in the construction industry for three and a half years and ran a business from 1973 until the filing of this action. Based on these facts, we believe the jury could find that plaintiffs were contributorily negligent. We also note that plaintiffs did not object at trial to the submission of the contributory negligence issue to the jury. For this additional reason, they cannot complain on appeal. Rule 10(b)(2), Rules of Appellate Procedure; Board of Education v. Juno Construction Corp., 50 N.C.App. 238, 273 S.E.2d 504 (1981), rev. denied, 310 N.C. 152, 311 S.E.2d 290 (1984); Hendrix v. All American Life & Casualty Co., 44 N.C.App. 464, 261 S.E.2d 270 (1980).

Plaintiffs next assign as error the denial of their motion for a new trial. We find no error.

Our review of a trial court's discretionary ruling either granting or denying a motion to set aside the verdict and order a new trial is strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the trial court. Worthington v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982). We have carefully examined the record and conclude that plaintiffs make no showing here of a manifest abuse of discretion on the part of the trial court. Accordingly, this assignment of error is overruled.

In the trial of this case we find

No error.

WHICHARD and JOHNSON, JJ., concur.