Bank of French Broad, Inc. v. Bryan , 240 N.C. 610 ( 1954 )

83 S.E.2d 485 (1954) 240 N.C. 610

The BANK OF FRENCH BROAD, Inc.
v.
Mrs. Blanche R. BRYAN, Administratrix of the Estate of Wayne Bryan, and Ralph Ramsey.

No. 94.

Supreme Court of North Carolina.

September 22, 1954.

Carl R. Stuart, Marshall, and E. L. Loftin, Asheville, for plaintiff-appellant.

G. D. Bailey and W. E. Anglin, Burnsville, for defendants-appellees.

BOBBITT, Justice.

Appellant, in its brief, does not deal separately with each challenged allegation. It presents its position as if the case were before us on demurrer to defendants' Further Answer and Defense, challenging the sufficiency of defendants' pleading to constitute a defense rather than the propriety of particular allegations.

As stated by Ervin, J.: "A motion to strike an allegation from a pleading for irrelevancy admits, for the purpose of the motion, the truth of all facts well pleaded in the allegation, and any inferences fairly deducible from them. But it does not admit the conclusions of the pleader." Penn Dixie Lines v. Grannick, 238 N.C. 552, 556, 78 S.E.2d 410, 413. Appellant concedes and indeed cites this statement of the applicable rule.

Assuming sufficient interest or other recognized consideration, it is generally held that where one agrees to procure the issuance of insurance on the property of another, affording protection against designated risks, and fails to do so, he will be held liable, within the amount of the proposed insurance, for the loss attributable to his default. This Court has recognized the breach of such agreement as a basis of liability where the parties to the agreement were in the following relationships:

1. In actions by a property owner against an insurance agent or broker. Elam v. Smithdeal Realty & Insurance Co., 182 N.C. 599, 109 S.E. 632, 18 A.L.R. 1210; Case v. Ewbanks, Ewbanks & Co., 194 N.C. 775, 140 S.E. 709; Boney v. Central Mutual Ins. Co., 213 N.C. 563, 197 S.E. 122; 29 Am.Jur. p. 130, Insurance, secs. 108, 109; 44 C.J.S., Insurance, § 172(a), page 861; Annotations: 18 A.L.R. 1214; 29 A.L.R.2d 171.

2. In actions by a vendee against a vendor in relation to personal property subject to a conditional sales contract. Mack International Motor Truck Corp. v. Wachovia Bank & Trust Co., 200 N.C. 157, 156 S.E. 787; Meiselman v. Wicker, 224 N.C. 417, 30 S.E.2d 317; 23 N.C.L.Rev. 64.

3. In actions by a property owner against a warehouseman. Interstate Folding Box Co. v. City Transfer & Storage Co., 210 N.C. 829, 186 S.E. 155.

4. In actions by the owners of real property, subject to deed of trust, against the owners of the secured debt. Dixon v. Osborne, 204 N.C. 480, 168 S.E. 683; Crouse v. Vernon, 232 N.C. 24, 59 S.E.2d 185; 36 Am.Jur. p. 852, Mortgages, sec. 328; 59 C.J.S., Mortgages, § 328(b), page 449.

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. Elam v. Smithdeal Realty & Insurance Co., supra; 44 C.J.S., Insurance, § 172(b), page 863.

In Crouse v. Vernon, supra, plaintiff, a property owner, obtained a $2,500 construction loan from a bank. She secured her $2,500 note to the bank by deed of trust conveying the property on which she was building a house and gave additional security. Her house burned while in process of construction. She sued the bank official with whom she had dealt, the bank, and the trustee in the deed of trust. In dealings with the plaintiff, the named official was acting for the bank. In addition, however, there was allegation and evidence that the named bank official had a broker or agency relationship with certain (unnamed) fire insurance companies. Plaintiff recovered judgment against the bank official individually and against the bank, predicated upon the jury's verdict to the effect that the bank official agreed to procure and have issued to plaintiff a fire insurance policy in amount of $4,500 covering the house being built on plaintiff's property and failed to do so. The allegations of the complaint as disclosed by the original record bear close resemblance to the allegations of defendants now challenged by plaintiff's motion.

Here, the insurance policy contemplated by the agreement alleged by defendants was to provide coverage against the risk of the death of Wayne Bryan during the term of ninety days from 6 July, 1953. But we discern no substantial distinction because the insurance to be procured was life insurance rather than to protect against property risks.

In our view, it may be fairly deduced from the challenged allegations that the bank, through its said agent, agreed to cause the issuance of the policy on the life of Bryan; and that at the time the loan was renewed, Bryan paid an amount sufficient to cover interest on the renewal note and premium on insurance policy. Plaintiff insists that the allegations compel the conclution that the interest was paid to the bank and that the premium was paid to Rector as agent of the insurance company. Under the rule of liberal construction in favor of the pleader, the relationships alleged do not require such an attenuate distinction. The allegations indicate plainly that the issuance of the insurance policy was not independent of but rather an integral feature of the loan renewal transaction. The allegations are clear to the effect that the death benefit under the proposed insurance policy was to be payable to the bank, thereby protecting it as well as the obligors on the $700 note in case of Bryan's death during the ninety day term. Whether the amount of the premium was paid to Rector, in his capacity as bank official or in his capacity of insurance agent, the defendants are entitled to allege and show, if they can, that the bank made the agreement to cause the life insurance policy to be issued. The circumstance that its official was also an agent for a life insurance company would not affect its liability if in fact it made such agreement. Indeed, if, within its own organization, there was an agent authorized to issue such policy, its failure to cause the issuance thereof could hardly be justified.

The defendants' pleading is sufficient to survive the motion to strike, leaving for jury decision upon the evidence presented the issue as to whether the bank made the alleged agreement. Of course, the case now before us is on the pleadings. Whether defendants can support their allegations by sufficient evidence is another matter.

Affirmed.