Gottula v. Standard Reliance Ins. Co., No. 34133

CourtSupreme Court of Nebraska
Writing for the CourtHeard before SIMMONS; MESSMORE
Citation165 Neb. 1,84 N.W.2d 179
Docket NumberNo. 34133
Decision Date05 July 1957
PartiesRobert G. GOTTULA, Appellant, v. STANDARD RELIANCE INSURANCE COMPANY, Lincoln, Nebraska, et al., Appellees.

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.

Page 180

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.

[165 Neb. 2] 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

Page 181

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 [165 Neb. 3] 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 [165 Neb. 4] 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

Page 182

& 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...

To continue reading

Request your trial
9 practice notes
  • Babcock & Wilcox Company v. Parsons Corporation, No. 19949.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 11, 1970
    ...only of those claims asserted against the insured which fall within the coverage of the policy. Gottula v. Standard Reliance Insurance Co., 165 Neb. 1, 84 N.W.2d 179 (1957); Pickens v. Maryland Casualty Co., 141 Neb. 105, 2 N.W.2d 593 (1942). And, the allegations contained in the plaintiff'......
  • Allstate Ins. Co. v. Novak, No. 43566
    • United States
    • Supreme Court of Nebraska
    • December 18, 1981
    ...obligation to pay can be determined even before the insured's liability is determined. See, Gottula v. Standard Reliance Ins. Co., 165 Neb. 1, 84 N.W.2d 179 (1957); Hawkeye Casualty Co. v. Stoker, 154 Neb. 466, 48 N.W.2d 623 (1951). For example, if insured's policy in this case was an autom......
  • A-1 Finance Co. v. Nelson, A-1
    • United States
    • Supreme Court of Nebraska
    • October 25, 1957
    ...The function of a general demurrer to an amended [165 Neb. 300] petition is as follows. In Gottula v. Standard Reliance Ins. Co., 165 Neb. 1, 84 N.W.2d 179, 181, this court said: 'A general demurrer admits all the allegations of fact in the pleading to which it is addressed, which are issua......
  • Babcock & Wilcox Co. v. Parsons Corporation, Civ. 02260.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • April 11, 1969
    ...Mut. Ins. Co. of DeWitt, Iowa v. Meckna, 1966 180 Neb. 516, 144 N.W.2d 73, 15 A.L.R.3d 698; Gottula v. Standard Reliance Ins. Co., 1957 165 Neb. 1, 84 N.W.2d The liability policy excluded any coverage for losses involving property rented or occupied by the insured. The primary factor in det......
  • Request a trial to view additional results
9 cases
  • Babcock & Wilcox Company v. Parsons Corporation, No. 19949.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 11, 1970
    ...only of those claims asserted against the insured which fall within the coverage of the policy. Gottula v. Standard Reliance Insurance Co., 165 Neb. 1, 84 N.W.2d 179 (1957); Pickens v. Maryland Casualty Co., 141 Neb. 105, 2 N.W.2d 593 (1942). And, the allegations contained in the plaintiff'......
  • Allstate Ins. Co. v. Novak, No. 43566
    • United States
    • Supreme Court of Nebraska
    • December 18, 1981
    ...obligation to pay can be determined even before the insured's liability is determined. See, Gottula v. Standard Reliance Ins. Co., 165 Neb. 1, 84 N.W.2d 179 (1957); Hawkeye Casualty Co. v. Stoker, 154 Neb. 466, 48 N.W.2d 623 (1951). For example, if insured's policy in this case was an autom......
  • A-1 Finance Co. v. Nelson, A-1
    • United States
    • Supreme Court of Nebraska
    • October 25, 1957
    ...The function of a general demurrer to an amended [165 Neb. 300] petition is as follows. In Gottula v. Standard Reliance Ins. Co., 165 Neb. 1, 84 N.W.2d 179, 181, this court said: 'A general demurrer admits all the allegations of fact in the pleading to which it is addressed, which are issua......
  • Babcock & Wilcox Co. v. Parsons Corporation, Civ. 02260.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • April 11, 1969
    ...Mut. Ins. Co. of DeWitt, Iowa v. Meckna, 1966 180 Neb. 516, 144 N.W.2d 73, 15 A.L.R.3d 698; Gottula v. Standard Reliance Ins. Co., 1957 165 Neb. 1, 84 N.W.2d The liability policy excluded any coverage for losses involving property rented or occupied by the insured. The primary factor in det......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT