Kenneth L. JOHNSON, trading as Carolina Beach Pier
v.
GEORGE TENUTA & COMPANY.
No. 715SC587.
Court of Appeals of North Carolina.
January 12, 1972.*735 Smith & Spivey, by Jerry L. Spivey, Wilmington, for plaintiff appellant.
Marshall, Williams, Gorham & Brawley by Alan A. Marshall and A. Dumay Gorham, Jr., Wilmington, for defendant appellee.
PARKER, Judge.
"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 attributed to his negligent default." Elam v. Smithdeal Realty Co., 182 N.C. 599, 602, 109 S.E. 632, 633. Accord: Wiles v. Mullinax, 267 N.C. 392, 148 S.E.2d 229. "To enforce such liability the plaintiff, at his election, may sue for breach of contract, or for negligent default in performance of duty imposed by contract." Bank of French Broad, Inc. v. Bryan, 240 N.C. 610, 83 S.E.2d 485.
In the present case plaintiff has elected to sue for breach of contract. He has alleged an express agreement made in February 1969 whereby defendant agreed with plaintiff to procure "complete and full insurance coverage" on plaintiff's pier, and has further alleged that upon receiving assurance from defendant that such insurance had been procured, plaintiff paid defendant $2,190.00 "to pay the premium on the insurance which the defendant said he had procured." Plaintiff did not allege that defendant failed to use due care in performance of the duty imposed upon him by the contract, but alleged simply that defendant had failed to perform as he had agreed to perform.
Viewing the evidence in the light most favorable to plaintiff, as we are required to do in passing on an exception to the trial court's ruling on a motion for a directed verdict made by a defendant in a jury case under Rule 50(a) of the Rules of Civil Procedure, Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396, we find no evidence tending to establish the contract alleged in the complaint. When plaintiff purchased the pier in February 1969, he had never met, communicated with, or had any contact of any nature with defendant or with anyone authorized to represent defendant. Plaintiff simply took over from the previous owners the existing insurance policy which defendant had procured for them, sending to defendant through the real estate agent a check for the prorata portion of the premium accruing from and after the date plaintiff acquired title to the pier. Plaintiff's first *736 contact of any nature with defendant occurred a substantial period of time later, and his total contacts with defendant prior to the storm consisted only of two brief conversations. In neither of these did plaintiff request nor did defendant agree to procure any insurance whatsoever in addition to that which was already in force. At most, the evidence shows merely that defendant promised, without consideration, to get a copy of the existing policy for the plaintiff, and that defendant told plaintiff not to worry about it because he was "fully covered." Plaintiff admitted, however, that defendant had not discussed with him what plaintiff was covered for or against. The vague assurance that plaintiff was "fully covered," volunteered by defendant without consideration, was not sufficient to support a finding that defendant thereby contracted with plaintiff to procure a policy of insurance affording plaintiff complete protection against the particular risk which resulted in plaintiff's loss.
While, as above noted, plaintiff grounded his action in contract and not in tort, had plaintiff by appropriate allegation sought to base his action on the theory that defendant was actionably negligent, the evidence would also have been insufficient to support a recovery upon that theory. As above noted, the evidence would not support a finding that defendant had contracted to procure insurance affording plaintiff complete protection against the particular risk which resulted in his loss, and defendant could not be found negligent in failing to perform a duty which he had never contractually undertaken to perform and which was not otherwise imposed on him by law. While, in view of the 80% co-insurance and the $2,500.00 deductible clauses, it may now appear that plaintiff's pier was underinsured, there is no evidence that defendant knew the value of the pier or that his advice had been sought or given as to the amount or type of insurance which should have been carried. In this regard the evidence shows no more than that defendant, at the request of the former owners, had procured insurance of the type required to satisfy the Small Business Administration, holder of a mortgage on the pier. In view of the very high premium, such insurance may have been all that a prudent business man would have carried. Plaintiff did not allege or at the trial seek to base his action on the theory that defendant was actionably negligent in failing to furnish plaintiff a copy of the existing policy and in telling plaintiff not to worry because he was "fully covered," thereby lulling plaintiff into a feeling of false security which proximately caused his loss. He may not for the first time pursue such a theory on this appeal. "Where a cause has been tried on one theory in the lower court, appellant will not be permitted to urge a different theory on appeal." 1 Strong, N.C. Index 2d, Appeal and Error, § 4, p. 108. Had plaintiff pursued such a theory at the trial of this case, an issue as to plaintiff's contributory negligence would have arisen. "Where, in a case of this kind the action is for tort, and there is a negligent default on the part of the plaintiff contributing to the injury, this would have the effect of defeating the action." Elam v. Smithdeal Realty Co., supra.
We find no error in the judgment directing verdict for the defendant. We have reviewed plaintiff's remaining assignments of error and find them without merit. The judgment appealed from is
Affirmed.
CAMPBELL and MORRIS, JJ., concur.