Ursini v. Goldman
| Decision Date | 12 June 1934 |
| Citation | 118 Conn. 554,173 A. 789 |
| Court | Connecticut Supreme Court |
| Parties | URSINI v. GOLDMAN. |
Appeal from Superior Court, New Haven County; Alfred C. Baldwin Judge.
Action by William Ursini against Albert Goldman to recover damages for alleged breach of contract by the defendant, an insurance broker, to procure for the plaintiff a policy insuring him against loss by burglary, tried to the jury. Verdict and judgment in favor of the plaintiff, and the defendant appeals.
No error.
Insurance broker, undertaking to procure protection against designated risk, has duty to perform obligation with reasonable care and is liable for loss properly attributable to his default. Gen.St.1930, § 4126 (C.G.S.A. § 38-69).
George W. Crawford, and Albert W. Herrmann, both of New Haven, for appellant.
Louis Sperandeo and Louis Femmark, both of New Haven, for appellee.
Argued before MALTBIE, C.J. and HAINES, HINMAN, BANKS, and AVERY JJ.
The plaintiff alleged in general terms in his complaint, and on the trial offered evidence to prove, the following facts: In 1928 he leased a store in a building in New Haven, owned by the defendant, for the purpose of selling groceries at wholesale. The defendant was engaged in the insurance and real estate business, and was a licensed insurance broker. Prior to August, 1928, the defendant repeatedly solicited the plaintiff to insure against burglary, but the plaintiff did not do so. In August the plaintiff's store was entered by burglars, and he sustained substantial loss. The day following the burglary the defendant, knowing that it had occurred, came to the plaintiff's store, stated to him, in substance, " You see, if you had done what I told you to do and taken out burglary insurance, you would be laughing now instead of crying," and urged him to protect himself by insurance against further loss. The plaintiff thereupon told the defendant to obtain for him a policy of $2,000, and the defendant agreed that he would obtain such insurance and secure such protection for the plaintiff. The plaintiff had no knowledge of or experience with burglary insurance or the terms and conditions thereof, but relied solely upon the defendant's knowledge and experience.
The defendant ordered of local agents of a casualty company burglary insurance of $2,000 for the plaintiff, but failed and neglected to inform them that there had been a previous burglary in the store. The casualty company issued a policy covering the premises against burglary in the sum of $2,000; the policy embodying an application which included a representation that there had been no burglary in the premises for five years. The defendant brought the policy to the plaintiff, who paid the premium by his check to the company, and the defendant received his usual share of this premium. When the defendant brought the policy to the plaintiff's store he told him, in substance, that he was now covered against loss from burglary, and the plaintiff, relying on this assurance and on previous statements to him by the defendant as to his ability to get proper insurance and his knowledge of the insurance business, did not read the policy or the application, but placed the same in a safe, believing that the policy was valid and protected him against loss.
In December, 1928, another burglary occurred in the plaintiff's premises whereby he sustained a loss. He notified the defendant of the burglary and the latter told him he was protected by the policy and on a number of occasions afterward assured him that the loss would be paid. After some time the insurance company refused to pay the loss and the plaintiff brought a suit against the insurer, which defended, and a verdict in its favor was directed, on the ground of a breach of warranty or representation that the plaintiff had sustained no previous loss by burglary within five years.
The defendant, in the present action, pleaded a general denial, also a special defense alleging in substance that the defendant merely informed the local agents that the plaintiff desired burglary insurance and made no statements or representations to them or the insurer, but that the answers to the questions in the application were made by the plaintiff. He offered evidence that he at no time previous to the issuance of the policy talked with the plaintiff concerning the procurement of it, and had no knowledge of any previous burglary in the plaintiff's store, and had no part in furnishing or procuring the information pertaining thereto; that he made no promises or agreements to procure for the plaintiff insurance against a burglary or to do anything in connection therewith except, as broker, to bring the plaintiff and the insurance agents together; also, that at the time of the delivery of the policy to the plaintiff no statements or representations were made to him by the defendant concerning the terms and conditions.
The jury rendered a verdict for the plaintiff, a motion to set it aside was denied, and the defendant on this appeal assigns error in the denial of that motion and in the charge. These assignments involve, in several aspects, the duties and liabilities of an insurance broker. By our statutes " insurance broker" is defined to mean any person who " for compensation, shall act or aid in any manner in negotiating" contracts of insurance, " or in placing risks or soliciting or effecting insurance as agent for a person other than himself, and not as an officer, traveling salaried employee or duly licensed agent of an insurance company or as an insurance solicitor employed by a duly licensed agent" . General Statutes, § 4126. This definition is sufficient to our present purposes. Such broker acts as middleman between the insured and the insurer. Having secured an order, he places the insurance, in the absence of a selection by the insured, with the company selected by the broker. 2 Couch, Cyclopedia Ins. Law, § 452; 9 C.J. p. 509. He is the agent of the insured in negotiating for the policy. Mishiloff v. American Central Ins. Co., 102 Conn. 370, 379, 128 A. 33. As such he owes a duty to his principal to exercise reasonable skill, care, and diligence in effecting the insurance, and any negligence or other breach of duty on his part which defeats the insurance which he undertakes to secure will render him liable to his principal for the resulting loss. 2 Couch, § 481; 32 C.J. p. 1088. Where he undertakes to procure a policy affording protection against a designated risk, the law imposes upon him an obligation to perform with reasonable care the duty he has assumed, and he may be held liable for loss properly attributable to his default. The principal may sue either for breach of the contract or in tort for breach of duty imposed by it. Elam v. Smithdeal Realty & Ins. Co., 182 N.C. 599, 602, 109 S.E. 632, 18 A.L.R. 1210, and cases cited in note 18 A.L.R. page 1214.
Asserting that, upon the facts set up in the complaint, the plaintiff could have sought recovery either for breach of contract to procure effective insurance or in tort for negligence in performing the duties imposed thereby, the appellant contends that the trial court should have given the jury separate instructions appropriate to each of these alternative causes of action. There would be merit in this claim if the complaint had been so framed as to signify dependence on both contract and tort and the case had been tried and submitted to the jury on both of these causes of action, but this was not the case. While it is possible that the averments of the complaint were sufficiently general to admit of a claim for recovery on the ground of negligence, they are specially and...
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