Interstate Textile Equipment Co. v. Swimmer

130 S.E.2d 6 (1963)

259 N.C. 69

INTERSTATE TEXTILE EQUIPMENT COMPANY, Plaintiff, v. Harry S. SWIMMER and Swimmer-Greenberg Insurance Agency, Inc., Original Defendants, and American Manufacturers Mutual Insurance Company, Additional Defendant.

No. 251.

Supreme Court of North Carolina.

March 20, 1963.

*8 Weinstein, Muilenburg, Waggoner & Bledsoe, Charlotte, for plaintiff appellee.

Helms, Mulliss, McMillan & Johnston, Charlotte, Powers, Kaplan & Berger, New York City, for additional defendant appellee.

Kennedy, Covington, Lobdell & Hickman, Charlotte, for original defendants appellants.

DENNY, Chief Justice.

The appellants assign as error the ruling of the court below in allowing the additional defendant's motion for judgment as of nonsuit on the appellants' cross action against the additional defendant American Manufacturers.

The appellants in their brief state that they do not contest the fact that, as between them and the plaintiff, they agreed *9 to maintain the insurance on the plaintiff's West Virginia property in effect; nor do they contest the fact that American Manufacturers had no binder in effect at the time plaintiff's property was destroyed or damaged by fire. However, they do contend that in light of their prior dealings with American Manufacturers in almost identical circumstances, these appellants were not negligent in handling this insurance coverage; but if they were negligent, then in light of the course of past dealings between the original defendants and American Manufacturers, American Manufacturers was jointly and concurrently negligent.

In view of the fact that on 22 November 1960 the original defendants wrote the additional defendant American Manufacturers that "If coverage is needed after the 20th of December, we will notify you," and since the evidence further shows that the original defendants never requested American Manufacturers to extend coverage beyond 20 December 1960, this assignment of error is without merit and is overruled. (Emphasis added.)

The appellants assign as error the following portions of the charge:

"Now, in order for the plaintiff to prevail in an action for negligence, such person must establish; that is, the plaintiff must establish two things: First, that there was a failure on the part of the defendant to perform some legal duty which the defendant owed the plaintiff, and secondly, that such breach of duty; that is, such negligence, must be the proximate cause or one of the proximate causes of the plaintiff's injury. * * * "The court instructs you that in every case involving negligence and, again, I emphasize to you that this is an action based on negligence, there are three elements which are essential to the existence of negligence. First, there must be the existence of the duty on the part of the defendant to protect the plaintiff from injury; second, the failure of the defendant to perform that duty; and third, the injury to the plaintiff must have arisen from such failure of the defendants; that is, as to the three elements, that the injury to the plaintiff must have been directly, that is, proximately caused by the neglect of the defendant. * * * "(T)hen if you so find from the evidence and by its greater weight, then the defendants would, under the law, be guilty of what I have instructed you to be actionable negligence, composed of two elements, first, the failure to perform the duty which the defendants owed the plaintiff by the agreement, if you find by the greater weight of the evidence there was an agreement, and secondly, that such failure, such breach of duty was the proximate cause; that is, the producing cause or one of the producing causes of the plaintiff's injury; if you so find from the evidence and by its greater weight, then it would be your duty to answer the first issue `yes'; that is, that the plaintiff has been damaged by the actionable negligence of the defendants."

The appellants contend that the foregoing instructions imposed on them an absolute contractual standard of conduct instead of the standard of ordinary care; that by omitting from the major portions of the charge any reference to the necessity of a failure to exercise ordinary care, the trial court, in effect, converted this action into one for breach of contract.

We do not concur in this view. Immediately preceding the first portion of the charge assigned as error, the court gave the jury this instruction:

"Ladies and Gentlemen, this first issue is based on the legal principle of negligence. Now, it is therefore my duty to instruct you as to what negligence means as applicable to this particular case. Negligence is the failure to exercise proper care in the performance *10 of some legal duty which the defendants owed the plaintiff, growing out of the circumstances in which they were placed. It is the absence of that care which under the circumstances should be exercised as a duty to another; that is, a duty which the defendants might owe the plaintiff under the rule of the ordinary prudent person. As applicable to this case, again, means the failure to observe ordinary care for the protection of the interest of another person to whom that persons owes an obligation."

In the case of Elam v. Smithdale Realty & Insurance Co., 182 N.C. 599, 109 S.E. 632, 18 A.L.R. 1210, the failure of an insurance agent or broker to obtain the coverage requested and which he agreed to procure was involved. The action was for breach of contract, and the Court, inter alia, said: "It is very generally held that, where an insurance agent or broker undertakes to procure a policy of insurance for another affording protection against a designated risk, the law imposes upon him the duty in the exercise of reasonable care to perform the duty he has assumed, and within the amount of the proposed policy he may be held liable for the loss properly attributable to his negligent default. * * * It is ordinarily true that for breaches of duty involved in the contract of agency the principal may sue either for breach of contract for faith fulness or in tort for a breach of the duty imposed by the same." Case v. Ewbanks, Ewbanks & Co., 194 N.C. 775, 140 S.E. 709; Meiselman v. Wicker, 224 N.C. 417, 30 S.E.2d 317; Bank of French Broad, Inc. v. Bryan, 240 N.C. 610, 83 S.E.2d 485; 29 Am.Jur., Insurance, sections 163, 164, 165, page 561, et seq.; 44 C.J.S. Insurance § 172a, page 860, et seq.; Anno: Insurance Broker or AgentLiability, 29 A.L.R.2d 171.

In our opinion, the assignments of error to the foregoing portions of the charge present no prejudicial error. Hence, they are overruled.

Other assignments of error have been carefully examined and considered. However, we hold they are without merit and are therefore overruled.

This case was carefully tried by able counsel and before an excellent and competent judge whose charge to the jury when considered contextually is free from prejudicial error.

In the trial below, we find

No error.