Gottula v. Standard Reliance Ins. Co., 34133

• Decision Date: 05 July 1957
• Docket Number: No. 34133,34133
• Citation: 165 Neb. 1,84 N.W.2d 179
• Parties: Robert G. GOTTULA, Appellant, v. STANDARD RELIANCE INSURANCE COMPANY, Lincoln, Nebraska, et al., Appellees.
• Court: Nebraska Supreme Court

Page 179

84 N.W.2d 179

165 Neb. 1

Robert G. GOTTULA, Appellant, v. STANDARD RELIANCE INSURANCE COMPANY, Lincoln, Nebraska, et al., Appellees.

No. 34133.

Supreme Court of Nebraska.

July 5, 1957.

Syllabus by the Court

1. A general demurrer admits all the allegations of fact in the pleading to which it is addressed, which are issuable, relevant, and material, and which are well pleaded; but does not admit the conclusions of the pleader, except when they are supported by, and necessarily result from, the facts stated in the pleading. It does not admit inferences of the pleader from the facts alleged, nor mere expressions of opinion, nor theories of the pleader, as to the effect of the facts, nor allegations of what will happen in the future, nor arguments, nor allegations contrary to the facts of which judicial notice is taken, or which are contrary to law.

2. In passing on a demurrer to a petition, the court must consider an exhibit attached thereto and made a part thereof, if the allegations stated therein either aid the petition in stating a cause of action or charge facts going to avoid liability on the part of the defendant.

3. The use and determination of the demurrer in actions arising under the Uniform Declaratory Judgments Act are controlled by the same principles as apply in other cases, and where a demurrer should be sustained in other civil actions, it should be sustained in a declaratory judgment action. Demurrer may be used to test the sufficiency of the complaint if it is vulnerable on any of the statutory grounds of demurrer.

4. Where the insurer refuses to defend an action brought against the insured, basing its refusal on the ground that it is under no duty to defend because the claim upon which the action against the insured is found is not within the coverage of the policy, and it appears that such claim actually is outside the policy coverage, such refusal of the insurer to defend does not constitute a breach of contract.

5. Where an insurance policy obligates the insurer to defend all suits brought against the insured even though groundless, false, or fraudulent, the insurer is not liable to defend a suit based on a claim outside the coverage of the policy.

Sackett, Brewster & Sackett, Beatrice, for appellant.

McCown & Wullschleger, Robert D. Baumfalk, Beatrice, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action instituted by Robert G. Gottula under the Uniform Declaratory Judgments Act of the State of Nebraska, in the district court for Gage County against the Standard Reliance Insurance Company, Lincoln, Nebraska, a mutual insurance company merged with the Standard Casualty Company, a corporation, which does not in any manner change the provisions of the policy of insurance here involved nor change the parties defendant, Alvin Behrens, and Ekke Behrens, defendants. The purpose of the action was to have declared the liability of the defendant Standard Reliance Insurance Company, if any, under a policy of insurance issued to the plaintiff Robert G. Gottula. The defendant Standard Reliance Insurance Company filed a special and general demurrer to the plaintiff's petition, demurring specially on the ground that an action for declaratory judgment as prayed for in the plaintiff's petition was not proper where other equally serviceable remedies were provided by law, and demurring generally on the ground that the petition on its face disclosed insufficient facts to constitute a cause of action against the defendant Standard Reliance Insurance Company. The trial court overruled the special demurrer and sustained the general demurrer. The plaintiff failed to amend his petition and elected to stand on it. The trial court dismssed the plaintiff's petition. The plaintiff filed a motion for new trial which was overruled. From the order overruling the motion for new trial, the plaintiff appeals.

We deem it unnecessary to set forth the provisions of the Uniform Declaratory Judgments Act. There is no question but that an insurance contract comes within the purview of section 25-21,150, R.R.S.1943.

This court held in the case of Hawkeye Casualty Co. v. Stoker, 154 Neb. 466, 48 N.W.2d 623, that a contract for insurance and the coverage thereunder was properly determinable under the Uniform Declaratory Judgments Act of this state.

The special demurrer was properly overruled.

In Brunson v. Ranks Army Store, 161 Neb. 519, 73 N.W.2d 803, this court held: 'A general demurrer admits all the allegations of fact in the pleading to which it is addressed, which are issuable, relevant, and material, and which are well pleaded; but does not admit the conclusions of the pleader, except when they are supported by, and necessarily result from, the facts stated in the pleading. It does not admit inferences of the pleader from the facts alleged, nor mere expressions of opinion, nor theories of the pleader, as to the effect of the facts, nor allegations of what will happen in the future, nor arguments, nor allegations contrary to the facts of which judicial notice is taken, or which are contrary to law.' See, also, Richter v. City of Lincoln, 136 Neb. 289, 285 N.W. 593, and cases cited therein.

In passing on a demurrer to a petition, the court must consider an exhibit attached thereto and made a part thereof, if the allegations stated therein either aid the petition in stating a cause of action or charge facts going to avoid liability on the part of the defendant. Freeman v. Elder, 158 Neb. 364, 63 N.W.2d 327; Kinney Loan & Finance Co. v. Sumner, 159 Neb. 57, 65 N.W.2d 240.

The following are applicable to the case at bar.

The rule is stated in 26 C.J.S. Declaratory Judgments § 141, p. 333: 'The use and determination of the demurrer in actions arising under the declaratory judgments act are controlled by the same principles as apply in other cases, and where a demurrer should be sustained in other civil actions, it should be sustained in a declaratory judgment action. Demurrer may be used to test the sufficiency of the complaint if it is vulnerable on any of the statutory grounds of demurrer.'

In Dantzler v. Callison, 227 S.C. 317, 88 S.E.2d 64, 67, the court held: 'The use and determination of the demurrer in actions arising under Declaratory Judgment Act is controlled by the same principles as apply in other cases.'

In the case of Frach v. Schoettler, 46 Wash.2d 281, 280 P.2d 1038, 1044, certiorari denied 350 U.S. 838, 76 S.Ct. 75, 100 L.Ed. 747, the court held: 'A proceeding commenced under the declaratory judgment act is subject to the same rules of pleading as any other civil action; hence, in such a proceeding, there is not merit to the contention that a demurrer should not be sustained but that the matter should be heard upon its merits.'

In Webb v. Clatsop County School Dist. No. 3, 188 Or. 324, 215 P.2d 368, the court held: 'A demurrer may be used to test the sufficiency of a complaint in an action for a declaratory judgment, if complaint is vulnerable upon any of statutory grounds of demurrer.' The following cases are cited: Fox v. Title & Trust Co., 129 Or. 530, 277 P. 1003; Central Oregon Irr. Dist. v. Deschutes Co., 168 Or. 493, 124 P.2d 518; Cabell v. City of Cottage Grove, 170 Or. 256, 130 P.2d 1013, 144 A.L.R. 286. See, also, Davis v. State, 183 Md. 385, 37 A.2d 880; Paron v. City of Shakopee, 226 Minn. 222, 32 N.W.2d 603, 2 A.L.R.2d 1227; Meyers v. LaFayette Club, 197 Minn. 241, 266 N.W. 861; Borchard, Declaratory Judgments (2d ed.), pp. 208, 209; 16 Am.Jur., Declaratory Judgments, § 51, p. 323.

Section 25-803, R.R.S.1943, provides for a demurrer as a pleading in this state.

We conclude that a general demurrer may be filed against a petition in a declaratory judgment action such as the instant case.

We examine the petition to ascertain whether the order of the trial court sustaining the general demurrer constituted error as contended for by the plaintiff.

The plaintiff's petition, insofar as deemed necessary to consider here, alleged that on January 12, 1952, the defendant insurance company, for a valuable consideration, issued to the plaintiff its certain combination insurance policy No. AC 922125 on a 1939 model International 2-ton motor truck, model D S35, motor number FAB241-14388, the property of the plaintiff, insuring the plaintiff, among other things, for property damage liability within the limits of $5,000 each accident, from January 12, 1952, to January 12, 1953; and that attached to said policy of insurance was an automobile policy schedule wherein the type of motor vehicle, motor number thereof, and a schedule of coverage and premiums were set forth. Also attached to the said policy of insurance was an endorsement which reads as follows: 'Endorsement Attached to and forming part of Policy Number 922125 issued to Robert G. Gottula by STANDARD CASUALTY COMPANY--Lincoln, Nebraska at its Agency located (city and state) Adams, Nebraska Date of Endorsement January 12, 1952 CORN SHELLER MOUNTED ON TRUCK It is hereby understood and agreed that this policy shall not cover liability arising from operation of the sheller mounted on the insured truck. All other terms and conditions of this policy remain unchanged. Henry Gramann Jr. Agent.'

There is also attached to said policy of insurance an automobile endorsement for farm trucks, which reads as follows: 'Automobile Endorsement Farm Trucks For attachment to and forming part of Policy No. 922125 of the STANDARD CASUALTY COMPANY, issued to Robert G. Gottula. It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability, for Property Damage Liability and for Medical Payments with respect to the automobile classified as 'commercial (farm trucks)' applies subject to the following provisions: 1. The insurance applies to a trailer not described in the policy if designed for use with a private passenger...