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Universal Indem. Ins. Co. v. Tenery

Supreme Court of Colorado

December 10, 1934

UNIVERSAL INDEMNITY INS. CO.
v.
TENERY et al.

Rehearing Denied Dec. 31, 1934.

Error to District Court, City and County of Denver; Charles C. Sackmann, Judge.

Action by Mayo Tenery, by W. C. Tenery, his next friend, against Alfred Callahan and another, wherein a default judgment was entered against defendant named, and the Universal Indemnity Insurance Company was made garnishee. To review a judgment for plaintiff, the garnishee beings error.

Modified and affirmed.

[96 Colo. 11] Bardwell & Bardwell and Erskine R. Myer, all of Denver, for plaintiff in error.

James R. Hoffman, of Denver, for defendant in error.

HOLLAND, Justice.

April 22, 1932, Alfred Callahan rented an automobile from the Hertz Driv-ur-self System, Inc., signing a rental agreement therefor, and later in the evening, while admittedly under the influence of intoxicating liquor, he so carelessly and negligently operated the automobile as to cause a collision with a car driven by Mayo Tenery, defendant in error, resulting in personal injury to Tenery and property damage to Tenery's automobile.

[96 Colo. 12] Tenery filed a suit against Callahan and the Hertz System alleging negligence. Callahan defaulted, and the Hertz System moved for dismissal under section 103(a), chapter 122, of the Session Laws of Colorado for 1931 (page 546).

Chapter 122, referred to, is known as the Uniform Motor Vehicle Act, and the section pertinent here is as follows:

'Section 103. (a) The owner of a motor vehicle engaged in the business of renting motor vehicles without drivers, who rents any such vehicle without a driver to another, otherwise than as a part of a bona fide transaction,

Page 777

involving the sale of such motor vehicle, permitting the renter to operate the vehicle upon the highways, and who does not carry or cause to be carried public liability insurance in an insurance carrier or carriers approved by the Insurance Commissioner of this State, insuring the renter against liability arising out of his negligence in the operation of such rented vehicle, in limits of not less than $5,000 for any one person injured or killed and $10,000 for any number more than one injured or killed in any one accident, and against liability of the renter for property damage in the limit of not less than $1,000 for one accidnet shall be jointly and severally liable with the renter for any damages caused by the negligence of the latter, in operating the vehicle and for any damage caused by the negligence of any person operating the vehicle by or with the permission of the person so renting the vehicle from the owner, * * *

'When any suit or action is brought against the owner under this Section, it shall be the duty of the Judge or Court, Before whom the case is pending, to cause a preliminary hearing to be had in the absence of the jury for the purpose of determining whether the owner has provided or caused to be provided insurance covering the renter in the limits above mentioned. Whenever it appears that the owner has provided or caused to be provided insurance covering the renter in the sums mentioned, it shall be the duty of the Judge or Court to [96 Colo. 13] dismiss, as to the owner, the action brought under this Section.'

The motion for dismissal set out complies with the statute; as provided, the court caused a preliminary hearing to be held thereon, and, being satisfied as to compliance with the statute, ordered dismissal as to the Hertz System. Judgment was entered upon the default of Callahan for both actual and exemplary damages in the total sum of $2,575.44 including costs. Execution was issued on the judgment and returned nulla bona as to Callahan; whereupon garnishment was run against the Universal Indemnity Company, plaintiff in error, the company with which the Hertz System had a contract of ...


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