Updike Inv. Co. v. Employers' Liability Assur. Corp., Ltd., of London, England

• Decision Date: 30 January 1935
• Docket Number: 28968.
• Citation: 258 N.W. 470,128 Neb. 295
• Parties: UPDIKE INV. CO. v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED, OF LONDON, ENGLAND.
• Court: Nebraska Supreme Court

258 N.W. 470

128 Neb. 295

UPDIKE INV. CO. v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED, OF LONDON, ENGLAND.

No. 28968.

Supreme Court of Nebraska.

January 30, 1935

Syllabus by the Court.

An action to secure a declaration of rights is designed to terminate a controversy so far as it relates to the parties and facts giving rise thereto, and courts should, under most circumstances, dismiss such an action without prejudice whenever all parties, whose claims gave rise to the controversy and whose rights upon such claims would be adjudicated by the declaration sought, had they been a party to the action, have not been impleaded.

Appeal from District Court, Douglas County; Dineen, Judge.

Action by the Updike Investment Company against the Employers' Liability Assurance Corporation, Limited, of London, England. From an adverse judgment, plaintiff appeals.

Judgment reversed, and cause remanded, with directions.

Brogan, Ellick & Shoemaker and James J. Fitzgerald, Jr., all of Omaha, for appellant.

Kennedy, Holland & DeLacy, of Omaha, for appellee.

Heard before GOSS, C. J., GOOD, EBERLY, DAY, and PAINE, JJ., and RAPER and TEWELL, District Judges.

PER CURIAM.

In this action the plaintiff seeks a declaration of its rights under an insurance contract. The pleadings and evidence disclose that the defendant issued to the plaintiff a policy of insurance designated as a " Universal Standard Workmen's Compensation Policy," by which the defendant agreed to defend in the name and on behalf of plaintiff any suits or other proceedings brought against the plaintiff to recover any loss designated as a risk by the policy. One Eunice Roth brought an action against the plaintiff to recover an alleged damage of $50,000. The petition of Eunice Roth alleged that during the life of said policy and while she was an employee of the plaintiff and engaged in her employment she suffered personal injuries. These injuries are such that they are not compensable under the Workmen's Compensation Act (Comp. St. 1929, § 48-101 et seq., as amended), and are alleged to have been caused by the negligence of her employer, who is the plaintiff herein. The plaintiff in this action requested the defendant herein to defend such action, and the defendant herein refused and claimed that loss on account of the facts alleged in the petition of said Eunice Roth was not a risk covered by the policy. The issues in the action by Eunice Roth have not been tried.

The trial in this cause resulted in a declaration to the effect that the defendant herein was not obliged by its said contract of insurance to defend the action brought by Eunice Roth and would not be obligated to reimburse plaintiff herein for any sum that might later be recovered therein. The plaintiff appeals.

One of the questions presented is that of whether or not a justiciable issue is presented without Eunice Roth being a party to this action. By a paragraph of the policy designated therein as " one (a)" the defendant insures the plaintiff against loss under the provisions of the Workmen's Compensation Act, and by the provisions of a paragraph designated as paragraph " one (b)" the defendant herein agrees to indemnify the...