Central Sur. & Ins. Corp. v. Atlantic Nat. Ins. Co.

• Decision Date: 22 January 1965
• Docket Number: No. 35788,35788
• Citation: Central Sur. & Ins. Corp. v. Atlantic Nat. Ins. Co., 132 N.W.2d 758, 178 Neb. 226 (Neb. 1965)
• Parties: CENTRAL SURETY AND INSURANCE CORPORATION, a Corporation, Appellant, v. ATLANTIC NATIONAL INSURANCE COMPANY, a Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 758

132 N.W.2d 758

178 Neb. 226

CENTRAL SURETY AND INSURANCE CORPORATION, a Corporation, Appellant, v.ATLANTIC NATIONAL INSURANCE COMPANY, a Corporation, Appellee.

No. 35788.

Supreme Court of Nebraska.

Jan. 22, 1965.

Syllabus by the Court

1.The nature of an action, whether legal or equitable, is determinable from its main object, as disclosed by the averments of the pleadings and the relief sought.

2.Where none of the extraordinary powers of a court of equity are required in order to give either party the relief he seeks, and a court of law can afford complete relief, the action is one at law.

3.A new trial is a reexamination in the same court of an issue of fact after a verdict of a jury, report of a referee, or a decision by the court.

4.Where evidence is adduced in a law action, whether by stipulation or otherwise issues of fact are tried and determined.

5.Unless a motion for a new trial is filed in an action at law, review of the judgment in this court will be limited to the sole question as to whether the pleadings support the judgment.

Eisenstatt, Lay, Higgins & Miller, Omaha, for appellant.

Gross, Welch, Vinardi, Kauffman & Schatz, Omaha, for appellee.

Heard before WHITE, C. J., CARTER, SPENCER, BOSLAUGH, and BROWER, JJ., and POLLOCK and SIDNER, District Judges.

SPENCER, Justice.

This appeal involves the question as to which motor vehicle liability insurance carrier should bear the loss when a leased vehicle is involved in a collision: The one which issued a policy to the owner and lessor of the vehicle, which also covers the driver-lessee, or the one which issued a policy to the driver-lessee who is responsible for the collision.

The plaintiff, Central Surety and Insurance Corporation, the appellant herein, whose policy covered the driver-lessee of the car involved in the accident, and the defendant, Atlantic National Insurance Company, the appellee who had issued a policy to the Capitol Drive-Ur-Self, a corporation, the owner and lessor of the car, jointly contributed to the settlement of an action for personal injuries brought by a pedestrian struck by the leased vehicle.This was done under an agreement that either party could subsequently litigate the question as to the nature of the coverage.Each of the companies paid its own defense costs.The parties will hereinafter be referred to by their designations in the lower court.

Plaintiff brought this action against the defendant for reimbursement for the money expended in defending and settling the action.The defendant denied the liability and filed a counterclaim for its contributions to the settlement and for its expenses in defending the action.

The case was tried to the court on a stipulation of facts.The issue tried was whether one of the policies was primary and the other secondary, or whether or not the policies jointly covered the risk.The trial court, in a judgment filed February 17, 1964, adopted the latter construction, determined neither party was entitled to contribution from the other, and dismissed both the plaintiff's petition and the defendant's counterclaim.The trial court filed an extensive memorandum delineating his views on all applicable provisions of the policies.The plaintiff did not file a motion for a new trial, but on March 5, 1964, some 17 days after the judgment entry, gave notice of appeal.It is this appeal which is now before us.

Before considering the plaintiff's assignments of error, we are met by the question as to whether or not a motion for a new trial was necessary to review them.Is this an action at law or a suit in equity?The essential character of the cause of action and the remedy or relief it seeks, as shown by the allegations of the complaint, determine whether a particular action is one at law or in equity.SeeMills v. Heckendorn, 135 Neb. 294, 281 N.W. 49.

The nature of an action, whether legal or equitable, is determinable from its main object, as disclosed by the averments of the pleadings and the relief sought.Roy v. Bladen School Dist. No. R-31, 165 Neb. 170, 84...