Abel v. Southwest Cas. Ins. Co.

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before WHITE; WHITE
• Citation: Abel v. Southwest Cas. Ins. Co., 156 N.W.2d 166, 182 Neb. 605 (Neb. 1968)
• Decision Date: 09 February 1968
• Docket Number: 36715,Nos. 36714,s. 36714
• Parties: Bill W. ABEL, Appellee, v. SOUTHWEST CASUALTY INSURANCE COMPANY, a Corporation, Appellant. Duane C. MILLER and Phyllis E. Miller, Appellees, v. SOUTHWEST CASUALTY INSURANCE COMPANY, a Corporation, Appellant.

Page 166

156 N.W.2d 166

182 Neb. 605

Bill W. ABEL, Appellee, v. SOUTHWEST CASUALTY INSURANCE COMPANY, a Corporation, Appellant.

Duane C. MILLER and Phyllis E. Miller, Appellees, v. SOUTHWEST CASUALTY INSURANCE COMPANY, a Corporation, Appellant.

Nos. 36714, 36715.

Supreme Court of Nebraska.

Feb. 9, 1968.

Syllabus by the Court

1. An appearance is special when its sole purpose is to question the jurisdiction of the court. It is general if the party appearing invokes the power of the court on any question other than that of jurisdiction.

2. Under section 44--137.01, R.R.S.1943, the statutorily declared public policy of this state is that it is a subject of concern that many residents of this state hold policies of insurance issued or delivered in this state by insurers while such insurers are not authorized to do business in this state, thus presenting to such residents the often insuperable obstacle of resorting to the distant forums for the purpose of asserting legal rights under such policies.

3. It is presumed on appeal that a trial court in trying a case without a jury did not consider incompetent evidence.

4. The contract of a surety, acting for compensation, is construed most strongly against the surety and in favor of the indemnity which the obligee has reasonable grounds to expect.

Sidner, Gunderson, Svoboda & Schilke, Fremont, for appellant.

Kerrigan, Line & Martin, Fremont, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

WHITE, Chief Justice.

Two houseowners, plaintiffs, sue the defendant on the guaranty or surety bond contract of two basement waterproofing contracts allegedly breached by the contractor. This is a law action, tried by the court without a jury, in which the damages were stipulated. The district court entered judgment for the plaintiffs. We affirm the judgment.

Vulcan (Vulcan Waterproofing of K.C., Inc., a Missouri corporation) in an instrument captioned in large deep black print, 'SURETY, BONDED WATERPROOFING GUARANTY,' issued to and contracted with plaintiffs as follows: 'YOUR GUARANTEE: In consideration of sums received by us for applying our waterproofing treatment to the above premises for the elimination of water seepage, we guarantee, subject to the Bond reproduced on the reverse side hereof, to apply our waterproofing treatment using the exclusive Vulcan Patented Pressure Pumping Process, as described in our Contract bearing the above stated number. In addition to our patented pressure pumping process, The contractor, if every necessary, will supply all waterproofing material he deems necessary In the event further waterproofing is required. This agreement does not include dampness, or condensation of walls and/or floors treated by this Company, if such conditions are caused by humidity either from within or outside the walls and/or floors. It shall not be construed that this guarantee covers any walls and/or floors other than those treated by this Company, or water leaks due to electrical or plumbing failure. The liability of this Company under any one Guaranty for such waterproofing treatment shall in no event exceed $5,000.00.' (Emphasis supplied.)

The guaranty was for a 5-year period. On the reverse side of this instrument the defendant guarantees as follows: '* * * Guaranties when duly authorized and properly issued by Vulcan Waterproofing of K.C., Inc., (a Missouri Corporation) * * * Surety Bonded Waterproof(i)ng Guaranty (Series WP--1), that said Principal will discharge its obligations in accordance with the terms and conditions of said Guaranty during the period that such issued Guaranty is in full force and effect, * * *.'

Defendant, an Arkansas insurance company, executed one general guaranty bond to Vulcan, and under its authorization, Vulcan included it in the individual contracts, as here. Vulcan, incorporated in Missouri, entered into 33 Nebraska contracts, 2 of which were with plaintiffs. Defendant was unauthorized to do business in Nebraska and, except to the extent indicated, did no business in Nebraska.

We go to the question raised as to jurisdiction over the defendant. Plaintiffs secured service on defendant under the Unauthorized Insurers Process Act (44--137.01 to 44-137.10, R.R.S.1943). Defendant filed a special appearance objecting to jurisdiction because it did no business in the state and on the ground that the obligations were not insurance contracts under the act. There are two answers which dispose of this contention.

After filing the special appearance which was overruled, defendant filed a motion to make the petition more definite and certain and attempted to preserve the special appearance, answered attempting to preserve special appearance, requested relief on the pretrial order, moved for dismissal of plaintiffs' cases, and moved for a new trial without attempting to preserve the special appearance. This constituted a general appearance and the jurisdictional objection is without merit. The rule has long since been settled: 'An appearance is special when its sole purpose is to question the jurisdiction of the court. It is general if the party appearing invokes the power of the court on any question other than that of jurisdiction.' Ivaldy v. Ivaldy, 157 Neb. 204, 59 N.W.2d 373. See, also, O'Hara v. Frederickson Building Corp., 166 Neb. 206, 88 N.W.2d 643; Graff v. Graff, 179 Neb. 345, 138 N.W.2d 644; South Omaha Nat. Bank v. Farmers & Merchants Nat. Bank, 45 Neb. 29, 63 N.W. 128; Behr v. Duling, 128 Neb. 860, 260 N.W. 281; Bankers Life Ins. Co. v. Robbins, 59 Neb. 170, 80 N.W. 484; McKillip v. Harvey, 80 Neb. 246, 114 N.W. 155; Maxwell v. Maxwell, 106 Neb. 689, 184 N.W. 227; Troyer Furniture Co. v. Orchard & Wilhelm Co., 121 Neb. 301, 237 N.W. 144.

Defendant's only answer in its reply brief is the case of Behr v. Duling, supra. But this case, in haec verba, specifically reaffirms the above rule and holds that an answer, by way of general denial, preserving the objection to jurisdiction is not a request for affirmative relief and therefore not a general appearance. But that is not the case here, especially the motion for new trial without any preservation of the objection to jurisdiction. An interesting discussion reconciling the proper relationship of these rules is found in Ivaldy v. Ivaldy, supra, but further discussion is unnecessary here.

Jurisdiction was secured under the Unauthorized Insurance Process Act. The defendant, an Arkansas insurance company, collected premiums on 33 guaranties authorized to be issued and actually issued by Vulcan to Nebraska residents. Section 44--137.02, R.R.S.1943, says that such acts 'effected by mail or Otherwise,' authorize process under the act. And considering the terms of this guaranty, the inducing purpose of this insurance, and under the provisions of section 44--359, R.R.S.1943, the guaranty was an insurance contract in any meaningful sense of the term. See Sun Ins. Co. v. Aetna Ins. Co., 169 Neb. 94, 98 N.W.2d 692. Under section 44--137.01,...