Wiles v. Mullinax, 615

• Decision Date: 20 June 1967
• Docket Number: No. 615,615
• Citation: 270 N.C. 661,155 S.E.2d 246
• Parties: Bernadine WILES, d/b/a Centerview Taxi v. Ralph P. MULLINAX, Jr. and Mullinax Insurance Agency, Inc.
• Court: North Carolina Supreme Court

Page 246

155 S.E.2d 246

270 N.C. 661

Bernadine WILES, d/b/a Centerview Taxi v. Ralph P. MULLINAX, Jr. and Mullinax Insurance Agency, Inc.

No. 615.

Supreme Court of North Carolina.

June 20, 1967.

Hartsell, Hartsell & Mills and K. Michael Koontz, Concord, for defendant appellants.

Williams, Willeford & Boger, Concord, for plaintiff appellee.

LAKE, Justice.

This case was before us upon a former appeal from a judgment of nonsuit which we reversed in 267 N.C. 392, 148 S.E.2d 229. Upon the authority of Elam v. Smithdeal Realty & Insurance Co., 182 N.C. 599, 109 S.E. 632, 18 A.L.R. 1210, and other cases cited, we then held that, where an insurance agent or broker undertakes to procure a policy of insurance for another, it is his duty to use reasonable diligence to obtain it and, within the amount of the proposed policy, he may be held liable for a loss sustained by the proposed insured due to his negligent failure to do so. We further stated that if, in spite of reasonable diligence, such agent or broker is unable to procure the desired insurance coverage, it is his duty to so notify the proposed insured in order that the latter may take the necessary steps to protect himself otherwise. Since the record then before us was sufficient to permit a jury to find a breach of such duties by the defendants, resulting in loss to the plaintiff, we reversed the judgment of nonsuit, stating, 'Defendants' asserted defenses are not pertinent to this decision, which relates only to the question of the sufficiency of the evidence to survive the motion for nonsuit.'

The case having been retried and the jury having returned a verdict in favor of the plaintiff, the sufficiency of the asserted defense is now brought before us by the defendants' contention that they were not permitted by the trial judge to argue to the jury that they did, in fact, obtain for the plaintiff the desired insurance coverage.

At the close of all the evidence, in the absence of the jury, it was brought to the attention of the trial judge that the defendants' attorney intended to read to the jury, in the course of his argument, G.S. § 97--99(a), which concerns cancellation of a policy of workmen's compensation insurance, together with passages from the decision of this Court in Moore v. Adams Electric Co., 264 N.C. 667, 142 S.E.2d 659, in which this statute was held to apply to the cancellation of a binder for such insurance. The court ruled that the reading of these authorities to the jury would not be allowed. Thereupon, the defendants' attorney inquired of the court 'as to whether the defendants' contention that they had in fact obtained the insurance coverage by binders and that the evidence shows that the defendants had in fact procured the insurance by binders and that the plaintiff was insured at all times might be argued to the jury.' The court ruled that such argument would be improper and not permitted. The defendants now assign these rulings as error.

The second issue submitted to the jury was, 'Did the defendants negligently fail to procure such workmen's compensation insurance coverage, as alleged in the complaint?' Obviously, upon such issue, it was proper for the defendants to argue to the jury that they did procure the insurance and that it was in effect at the time of the injury to the plaintiff's employee, if there was any evidence from which the jury might so find. If the evidence would support such a finding, the defendants were entitled not only to argue their contention to the jury, but also to read to the jury, in the course of that argument, the pertinent statute and the decision of this Court upon the question. G.S. § 84--14; Wilcox v. Glover Motors Inc., 269 N.C. 473, 153 S.E.2d 76; Brown v. Vestal, 231 N.C. 56, 55 S.E.2d 797; Howard v. Western Union Telegraph Co., 170 N.C. 495, 87 S.E. 313.

The present record discloses that in the hearing by the Industrial Commission of the claim for compensation, filed by the widow of the deceased employee, the Commission found as a fact, and concluded as a matter of law, that at the time of the injury the present plaintiff had no workmen's compensation insurance coverage with either Royal or Dixie but was a noninsured. The Commission accordingly dismissed from the proceeding before it Royal and Dixie and awarded compensation to be paid by the present plaintiff. There was no appeal from the award of the Full Commission.

We need not determine whether, by reason of such award by the Industrial Commission, the question of the plaintiff's right against Royal or Dixie, or both of them, on the ground of the now alleged binder or binders is res judicata, as between the plaintiff and those companies. For the present, it is sufficient to note that the defendants were not parties to that proceeding. That being true, the question of the effectiveness of either or both of the alleged binders on the date of the injury to the employee is not res judicata as to the present defendants, even though the individual defendant testified as a witness in the hearing before the Commission. State ex rel. Northwestern Bank v. Fidelity and Casualty Co., 268 N.C. 234, 150 S.E.2d 396. To the general rule, that a judgment of a court is conclusive only as against the parties to the action and those...