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North Carolina National Bank v. Morgan

Filed: September 18, 1979.

NORTH CAROLINA NATIONAL BANK
v.
R. D. MORGAN, JR. AND WIFE, ELIZABETH M. MORGAN



Appeal by defendants from Braswell, Judge. Judgment entered 30 May 1978 in Superior Court, Cumberland County. Heard in the Court of Appeals 21 August 1979.

Arnold, Judge. Judges Hedrick and Vaughn concur.

Arnold

Defendants argue that the trial court erred by failing to consider all the evidence produced at trial. They contend that they did produce evidence that plaintiff breached a duty it owed to defendants.

The testimony at trial, considered in the light most favorable to defendants, is that prior to the foreclosure Ernest Cook, plaintiff's agent, gave defendant his opinion that after the foreclosure Manchester, as the new owner, would be covered under the policy. Unless plaintiff breached a duty by the giving of this incorrect information, there is no actionable negligence. See 57 Am. Jur. 2d, Negligence § 36.

Defendants concede that plaintiff had no duty to disclose voluntarily to them information bearing upon the risk they were proposing to undertake. See Magee v. Manhatten Life Ins. Co., 92 U.S. 93, 23 L. Ed. 699 (1876); Construction Co. v. Crain & Denbo, Inc., 256 N.C. 110, 123 S.E.2d 590 (1962); Trust Co. v. Akelaitis, 25 N.C. App. 522, 214 S.E.2d 281 (1975). They contend, however, that once the plaintiff undertook to answer defendants' inquiry, it opened itself to liability for an incorrect answer.

Defendants' reliance upon language in 74 Am. Jur. 2d, Suretyship § 130 is misplaced, since that language deals with the duty of an obligee to answer a surety's inquiry by disclosing all facts that are material to the surety's risk. Defendants' inquiry as to insurance coverage did not relate to a material fact, that is, one immediately affecting defendants' liability as surety. See id., § 131.

Defendants argue further that by undertaking to advise them about insurance coverage, plaintiff invoked a common-law duty to act with due care. While it is true that one who attempts to do anything has a duty to use some care and skill, 57 Am. Jur. 2d, Negligence § 45, defendants have presented no evidence that plaintiff did not use sufficient care and skill under the circumstances. Plaintiff's agent did not hold himself out as an expert on insurance. In addition, defendants had purchased the policy from their own insurance agent, and could have consulted him about the effect of a change in the ownership of the equipment. There is no evidence that the plaintiff breached any duty it owed to defendants.

The record supports the trial court's findings. We find no error in his denial of the motions for amendment of judgment and for new trial.

Affirmed.

Disposition

Affirmed.

19790918 ...


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