Relevant Facts: In 1948 pl’s drug store was destroyed by fire and at the time pl had four insurance policies with four different insurance companies against this type of loss. All four declined t opay any part. Dfs were attorneys hired to represent pl. In 1949,Dfs filed complaint and summons, but mailed copies to the State Insurance Commissioner as service of process custom dictated. The trial ct determined the custom was valid and entered judgment, the insurance companies appealed and won at the S. Ct. of N. C. In 1952, pl’s brought action against the df’s claiming dfs were negligent in prosecuting pl’s actions against the insurance companys by using an improper service of process, and failure to issue alias summons at the time initial action was pending.
Legal Issue(s): Whether the dfs breached a standard of care to act as a reasonably and prudent person, exercising the same or similar degree of knowledge and skill ordinarily possessed by others of his profession similarly situated ?
Procedure: Trial ct dismissed, affirmed.
Law or Rule(s): An attorney who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client is not answerable for a mere error of judgment or for a mistake in a point of law which has not been settled by the court of last resort.
Court Rationale: An atty must possess the requisite degree of learning, skill, and ability necessary to practice in his profession, and which others similarly situated possess; and that he will exert his best judgment in the prosecution of the litigation entrusted to him, and he will exercise reasonable and ordinary care and diligence in the use of his skill. Pl has not produce any evidence to show dfs breached any duty the law imposed upon them when they accepted employment to prosecute pl’s actions or that they did not possess the requisite learning, skill or ability required of an atty. Dfs mailed the process to the commissioner in following a custom which had prevailed in this State for over two decades. The right of the Commissioner to accept such had not been tested in the courts until the case arising this action.
Plaintiff’s Argument: The dfs failed to adhere to a standard of care to act as a reasonably and prudent person, exercising the degree of learning, skill, and ability of an attorney.
Defendant’s Argument: The dfs acted with good faith and exercised their best judgment as custom dictated in mailing the summons and complaint to the Insurance commissioner as any other attorney would have done.