Bros v. Kan. Cas. & Sur. Co.

• Decision Date: 17 December 1920
• Docket Number: No. 21892.,21892.
• Citation: 180 N.W. 229,147 Minn. 350
• Parties: MANNHEIMER BROS. v. KANSAS CASUALTY & SURETY CO.
• Court: Minnesota Supreme Court

147 Minn. 350

180 N.W. 229

MANNHEIMER BROS.

v.KANSAS CASUALTY & SURETY CO.

No. 21892.

Supreme Court of Minnesota.

Dec. 17, 1920.

Appeal from District Court, Ramsey County; J. C. Micheal, Judge.

Action by Mannheimer Bros. against the Kansas Casualty & Surety Company. Default judgment against defendant, and from an order denying its motion to vacate such judgment and for leave to answer, it appeals. Order affirmed.

Syllabus by the Court

In an order denying a motion to vacate a default judgment, it was recited that the order was based on the failure of the proposed answer to state a defense. On an appeal from the order, the only question which should be considered is whether the answer did in fact state a defense.

Defendant issued a policy, insuring plaintiff against loss from liability for damages by reason of its ownership and use of motor delivery trucks. The policy did not cover liability if a truck was being driven by any person contrary to the statutory age limit of the state. While a truck was being driven by an employee over 16 and under 18 years of age, who held a state license as a chauffeur, there was a collision with another automobile, and plaintiff was held liable for damages.

Held, that plaintiff's truck was not being driven contrary to the statutory age limit of this state (Gen. St. 1913, section 2621, and section 2638, as amended by section 4, c. 33, Laws 1915 [Gen. St. Supp. 1917, § 2638]), and therefore the proposed answer stated no defense.

When an amendatory statute is a substitute for the original statute, it repeals those parts of the prior act which it omits. Dille, Hoke, Krause & Faegre and R. F. Merriam, all of Minneapolis, for appellant.

C. D. & R. D. O'Brien, of St. Paul, for respondent.

LEES, C.

This is an appeal from an order denying defendant's motion to vacate a default judgment and for leave to answer.

In July, 1918, defendant insured plaintiff for the term of one year against loss from liability for damages by reason of its ownership and use of automobiles in transporting merchandise. The policy contained a clause reading:

‘This policy does not cover in respect of any automobile while driven or manipulated by any person contrary to the statutory age limit of any state or under the age of sixteen years, where there is no age limit.’

In March, 1919, one of plaintiff's delivery trucks collided with an automobile occupied by Charles L. Hillstrom and Walter Hanscom, under the circumstances related in Hillstrom v. Mannheimer Bros., 178 N. W. 881. Hanscom sued and obtained a verdict against plaintiff for damages for personal injuries sustained in the collision, and judgment was entered thereon. In defending the action plaintiff expended $1,050. It had requested defendant to defend, but it had declined to do so. Plaintiff paid the Hanscom judgment, and then brought this action to recover the sum paid and its expenditures in making its defense.

The summons was served January 14, 1920, by the delivery of copies to the commissioner of insurance. On February 7, 1920, a default judgment was entered for the amount demanded in the complaint. On February 20, 1920, defendant obtained an order to show cause why the judgment should not be vacated on the ground that it had failed to answer seasonably through inadvertence and excusable neglect. On March 1, 1920, the motion was denied, and the order to show cause discharged. On March 22, 1920, a further order to the same effect was entered, reciting that it was made ‘on the ground and for the reason that the defendant's proposed answer * * * does not state facts sufficient to constitute a defense.’ The defense pleaded was that at the time of the collision the truck was being driven by one Sampson, who was employed by plaintiff as a chauffeur contrary to the Minnesota age limit; that he was less than 16 years of age, and no chauffeur's license had been lawfully issued to him as prescribed by the statute.

The answer also raised an issue as to the reasonableness of plaintiff's expenditures in defending the case, but this issue was subsequently withdrawn. At the hearing of the motion plaintiff produced evidence that Sampson was born August 22, 1902, and it is now conceded that at the time of the collision he was over 16 and under 18 years of age.

[1] 1. Plaintiff urges that the showing to excuse the failure to answer was so unsatisfactory that the court properly denied the motion in the exercise of a sound judicial discretion. The recital in the order which we have quoted indicates that the motion was denied solely on the ground that the answer did not state a defense. We dispose of the case on the theory that this is the only question for our determination.

[2] 2. Two sections of our statutes control the decision of this question (section 2621, G. S. 1913), which declares that no person under the age of 16 years shall drive a motor vehicle unless accompanied by the owner or by a duly licensed chauffeur, and section 2638, G. S. 1913, as amended by chapter 33, G. L. 1915, § 4 (Gen. St. Supp. 1917, § 2638), which creates a board to examine and license applicants for chauffeur's licenses, directs that a license shall not be issued to any person under 18 years of age, requires each licensed chauffeur to wear a badge, and forbids the loaning of the license or badge to any one. Since Sampson was over 16 he might lawfully drive an automobile otherwise than as a hired...