Ditch v. Royal Indem. Co.

• Decision Date: 31 July 1992
• Docket Number: No. A92A0307,A92A0307
• Citation: 422 S.E.2d 868,205 Ga.App. 478
• Parties: DITCH v. ROYAL INDEMNITY COMPANY, et al.
• Court: Georgia Court of Appeals

Page 868

422 S.E.2d 868

205 Ga.App. 478

DITCH v. ROYAL INDEMNITY COMPANY, et al.

No. A92A0307.

Court of Appeals of Georgia.

July 31, 1992.

Reconsideration Denied Sept. 14, 1992.

Certiorari Denied Nov. 5, 1992.

Mark W. Crouch, Atlanta, for appellant.

Drew, Eckl & Farnham, Arthur H. Glaser, J. Robb Cruser, Fain, Major & Wiley, John K. Miles, Jr., Christopher E. Penna, Atlanta, for appellees.

POPE, Judge.

Plaintiff/appellant Michael T. Ditch filed a complaint for personal injury arising out of an automobile collision. Plaintiff alleged the collision was caused by the negligence of the driver of a tractor trailer truck and plaintiff named as defendants the common carrier trucking company for whom the driver worked and the company's insurer. Having learned that the defendant's driver claimed the collision was caused by a phantom vehicle, plaintiff also named as a defendant John Doe and served the complaint upon his uninsured motorist insurer. The complaint alleged that the collision was caused either by the negligence of the truck driver, the negligence of John Doe or the combined negligence of both. Instead of simply making both claims, however, in apparent anticipation of the truck driver's defense that the collision was caused by John Doe, the plaintiff made an unnecessary statement expressly denying the existence of John Doe. The complaint contained the following assertion: "Plaintiff denies that an unknown or uninsured motorist caused or contributed to the cause of said collision but, prophylactically, has nonetheless brought this claim against defendant John Doe so that in the event there should be a finding that John Doe caused or contributed to the cause of the collision, plaintiff's right of recovery against John Doe will have been preserved." The trial court granted summary judgment to John Doe and plaintiff's uninsured motorist insurer on both plaintiff's complaint and the cross-claim of the other defendants. Plaintiff appeals.

This court has previously ruled that the plaintiff in an automobile collision case may plead alternatively that the collision was caused by the negligence of a known defendant and a John Doe defendant. Smith v. Doe, 189 Ga.App. 264, 375 S.E.2d 477 (1988). The holding in Smith, however, does not save plaintiff's claim against John Doe in the case now before us because instead of merely pleading alternatively that a known and an unknown defendant caused the collision, the plaintiff expressly denied the collision was caused by the acts of defendant John Doe. An allegation made by a plaintiff in the complaint is an admission which "cannot be disputed" by the plaintiff. Reynolds v. Estate of Reynolds, 238 Ga. 1, 4, 230 S.E.2d 842 (1976). Where, as here, the admission contained in the pleading was never withdrawn, plaintiff was bound by the admission. See Strozier v. Simmons U.S.A. Corp., 192 Ga.App. 601, 603, 385 S.E.2d 677 (1989); Greene v. Gulf Oil Corp., 119 Ga.App. 87(2), 166 S.E.2d 626 (1969).

The Civil Practice Act which permits alternative pleadings (OCGA § 9-11-8(e)) does not change the rule of evidence that a party is bound by its judicial admissions (OCGA § 24-3-30). "The CPA did not wipe out or destroy the law in Georgia to the effect that a party to an action is bound by material allegations made in his pleadings...." Martin v. Pierce, 140 Ga.App. 897, 898-899, 232 S.E.2d 170 (1977). The plaintiff here could easily have pleaded that both the known and unknown defendants were liable for his injuries without making the unnecessary admission denying the existence of John Doe. As Professor Green warned in Ga. Law of Evidence, § 238 (2d ed. 1982), a party should beware of the evidentiary effect of alternative pleadings.

Judgment affirmed.

SOGNIER, C.J., McMURRAY, and BIRDSONG, P.JJ., and ANDREWS, J., concur.

CARLEY, P.J., BEASLEY, COOPER and JOHNSON, JJ., dissent.

CARLEY, Presiding Judge, dissenting.

As the majority correctly notes, the Civil Practice Act "did not wipe out or destroy the law in Georgia to the effect that a party to an action is bound by material allegations made in his pleadings...." Martin v. Pierce, 140 Ga.App. 897, 898-899(1), 232 S.E.2d 170 (1977). However, it is likewise clear that the Civil Practice Act mandates that "[a]ll pleadings shall be so construed as to do substantial justice." OCGA § 9-11-8(f). In my opinion, the majority has misconstrued appellant-plaintiff's complaint so as to do substantial injustice. Accordingly, I must respectfully dissent.

The entirety of the allegation under consideration is as follows: "It is believed by [appellant] that [the named defendants] (and [their] servants, agents, and employees) intend to assert by way of defense that an unknown (and thus uninsured) motorist caused the collision or contributed to the cause of the collision which resulted in [appellant's] injuries. [Appellant] denies that an unknown or uninsured motorist caused or contributed to the cause of said collision but, prophylactically, has nonetheless brought this claim against [appellee] John Doe so that in the event there should be a finding that John Doe caused or contributed to the cause of the collision, [appellant's] rights of recovery against John Doe will have been preserved." Although this allegation is perhaps unartfully phrased, it is clear that appellant is merely pleading in anticipation of the named defendants' defense and that he is merely expressing his opinion that that defense is without merit. The rule, relied upon by the majority, "has application to admissions of fact, and is not...