37 N.C. App. 177 | N.C. Ct. App. | 1978
Defendant assigns as error the granting of the plaintiff’s motion for a directed verdict on the defendant’s counterclaim by the trial court. We hold that this motion was properly allowed pursuant to Rule 50(a).
On motion by plaintiff for a directed verdict on a counterclaim of defendant, the trial court must determine the preliminary question of whether all of the evidence which tends to support defendant’s case on the counterclaim, taken as true and considered in the light most favorable to the defendant, giving him the benefit of every fact and inference of fact pertaining to the issue which may be reasonably deduced from the evidence,
“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.” Elam v. Realty Co., 182 N.C. 599, 602, 109 S.E. 632, 633 (1921).
Accord: Wiles v. Mullinax, 267 N.C. 392, 148 S.E. 2d 229 (1966), Johnson v. Tenuta & Co., 13 N.C. App. 375, 185 S.E. 2d 732 (1972).
Defendant attempted to enforce liability on the part of the plaintiff on the theory of breach of contract and also on the theory of negligent default in the performance of his duty imposed by contract as permitted by Rule 13(a) of the Rules of Civil Procedure. In order for defendant to recover on either of the theories of his counterclaim, he must present some evidence to establish a contract of insurance as described in his counterclaim. The plaintiff relies on a decision of the Supreme Court of Oregon in Rodgers Ins. v. Andersen Machinery, 211 Or. 459, 469, 316 P. 2d 497, 501-2 (1957), which held,
“. . . [W]e believe that a contract to procure insurance should be proved with the same certainty as an oral contract of insurance or agreement to insure. The essential elements of such an agreement were first stated by this court in Cleveland Oil Co. v. Ins. Society, 34 Or 228, 233, 55 P 435, in the following language:
‘In order to make a valid contract of insurance,’ says Mr. Wood, in his work on Fire Insurance (2 ed.) § 5, ‘several things must concur: First, the subject-matter to which the policy is to attach, must exist; second, the risk insured against; third, the amount of indemnity must be definitely fixed; fourth, the duration of the risk; and, fifth, the premium or consideration to be paid therefor must be agreed upon, and paid, or exist as a valid legal charge against the party insured where payment in ad-*181 vanee is not a part of the condition upon which the policy is to attach. The absence of either or any of these requisites is fatal in cases where a parol contract of insurance is relied upon.’ . . .”
We conclude that defendant presented sufficient evidence to submit the following issues to the jury on the question of whether or not a proposed insurance contract was entered: (1) the subject matter to which the policy was to attach was a Franklin Logger, (2) the amount of indemnity or the proposed insurance contract was $12,500.00. However, defendant’s evidence was fatal on the following issues: (1) the risk insured against (whether fire, liability, or comprehensive), (2) the duration of the risk (whether six months or one year), (3) the premium consideration to be paid for the proposed insurance contract. The evidence did not show that the premiums were paid or that the plaintiff charged the defendant for such insurance. In view of the record before us and the lack of evidence on the part of defendant, we are compelled to hold that the trial court properly granted plaintiff’s motion for directed verdict of defendant’s counterclaim under Rule 50(a) of the Rules of Civil Procedure.
The trial court allowed plaintiff’s motion to strike defendant’s answer: “No, I thought the tractor was insured.” This assignment of error is without merit in view of our holding that the directed verdict was proper.
The evidence presented by plaintiff was sufficient for the jury to answer the issue submitted to it in favor of plaintiff.
In the trial below, we find
No error.