Gudbrandsen v. Pelto

• Decision Date: 14 July 1939
• Docket Number: No. 32038.,32038.
• Citation: 205 Minn. 607,287 N.W. 116
• Parties: GUDBRANDSEN v. PELTO (TRAVELERS INS. CO., Garnishee).
• Court: Minnesota Supreme Court

287 N.W. 116

205 Minn. 607

GUDBRANDSEN v. PELTO (TRAVELERS INS. CO., Garnishee).

No. 32038.

Supreme Court of Minnesota.

July 14, 1939.

Reargument Denied August 2, 1939.

Appeal from District Court, St. Louis County; Bert Fesler, Judge.

Personal injury action by Severin Gudbrandsen against Henry Pelto, wherein the plaintiff obtained a judgment. The plaintiff thereupon brought garnishment proceedings against the Travelers Insurance Company. From an order denying the plaintiff's motion to serve a supplemental complaint in garnishment, the plaintiff appeals.

Affirmed.

Lewis, Grannis & Underhill, of Duluth, for appellant.

Holmes, Mayall, Reavill & Neimeyer, of Duluth, for garnishee-respondent.

PETERSON, Justice.

This is an appeal from an order denying plaintiff leave to file a supplemental complaint in garnishment. Plaintiff recovered a judgment, which we affirmed in 199 Minn. 220, 271 N.W. 465, where the facts are fully stated. He then commenced this garnishment proceeding seeking to charge the garnishee as insurer of defendant against liability for the acts resulting in the judgment liability. Defendant was employed by the Zenith Trucking Company driving a truck used for hauling coal for the Carnegie Coal Company. The garnishee issued to the trucking company an insurance policy indemnifying it against liability resulting from the operation of the truck, which contained an omnibus clause extending the insurance to any person using the truck with the named insured's consent, and which, as amended by a rider, limited the coverage to use "during the policy period for commercial purposes only in hauling coal for the Carnegie Coal Company."

There were two garnishment disclosures. At the first disclosure the contents of the insurance policy were not proved. The garnishee denied liability, and plaintiff made a motion for leave to file a supplemental complaint in garnishment, which was denied upon the grounds that plaintiff had failed to show, as required by statute, probable cause to believe that the garnishee was liable. The court ordered a second disclosure, at which the policy was proved and the entire record in the main action, including a transcript of all the evidence, was made a part of the disclosure.

The testimony of both plaintiff and defendant in the main action was contained in the transcript. They testified in effect that plaintiff, after he was through work for the day, accompanied defendant in making his last delivery; that after making the delivery they returned to the trucking company's garage, where it was defendant's duty to leave the truck, and that they then left again with the truck on a purely personal, pleasure trip which had nothing to do with coal hauling.

It appeared that the garnishee represented and defended the defendant in the main action under a reservation of rights. No claim was made in the lower court that it was liable because it conducted such defense.

After the second disclosure, plaintiff moved for leave to renew the motion to serve the supplemental complaint in garnishment. Leave to renew the motion was granted, but the motion was denied principally on the grounds of lack of diligence in applying for leave to renew it. The issues here relate to the alleged lack of diligence and the sufficiency of the showing that the garnishee was probably liable under the policy.

1. A party may institute garnishment proceedings and carry them through the disclosure without leave of court. All proceedings subsequent to the disclosure are under the control of the court. If the garnishee denies liability at the disclosure, the exclusive mode of traversing his denial is by the filing of a supplemental complaint. 2 Mason Minn.St.1927, § 9367, provides: "* * * where the garnishee, upon full disclosure, denies his liability as such, the plaintiff may move the court * * * for leave to file a supplemental complaint making the latter a party to the action, and setting forth the facts upon which he claims to charge him; and, if probable cause is shown, such motion shall be granted." The effect of the statute, where the garnishee denies liability, is that there shall be no proceedings subsequent to the disclosure to charge the garnishee except by leave of court obtained upon a showing that there is probable cause that the garnishee is liable as such. The party seeking leave to file the supplemental complaint must make such probable cause appear. It is not sufficient that he believes that probable cause exists. Mahoney v. McLean, 28 Minn. 63, 9 N.W. 76. The purpose of the supplemental complaint is to traverse the disclosure and carry the pending garnishment forward to trial and judgment. Gilloley v. Sampson, 203 Minn. 233, 281 N.W. 3.

The statute does not define "probable cause," but for present purposes it is sufficient to say that the term is used as meaning some showing by evidence which fairly and reasonably tends to show the existence of the facts alleged. The term is employed with this meaning in the statute requiring a committing magistrate to hold the accused to answer if probable cause be shown that the accused...