King v. State Farm Mut. Auto. Ins. Co., 43242

• Court: Georgia Court of Appeals
• Writing for the Court: J. KELLEY QUILLIAN; BELL, P.J., and HALL
• Citation: King v. State Farm Mut. Auto. Ins. Co., 160 S.E.2d 230, 117 Ga.App. 192 (Ga. App. 1968)
• Decision Date: 25 January 1968
• Docket Number: No. 2,No. 43242,43242,2
• Parties: Sanders J. KING v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Page 230

160 S.E.2d 230

117 Ga.App. 192

Sanders J. KING v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

No. 43242.

Court of Appeals of Georgia, Division No. 2.

Jan. 25, 1968.

Rehearing Denied Feb. 9, 1968.

Certiorari Denied April 10, 1968.

Syllabus by the Court

1. It is a condition precedent to an action against an automobile liability insurance carrier under the provisions of Code § 56-407A on account of injuries and damages to the plaintiff resulting from the negligence of an unknown uninsured motorist, that suit shall have been brought and judgment entered against the unknown uninsured motorist.

2. To be enforceable a contract must be sufficiently definite as to the subject matter and time.

Sanders J. King, Jr., filed suit against State Farm Mutual Automobile Insurance Company for damages resulting from an automobile collision. The petition alleged in part that the plaintiff had a contract of insurance in force with the defendant: 'To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of (a) bodily injury sustained by the insured or (b) injury to or destruction of the property of such insured caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.' The petition further alleged: that the vehicle which the plaintiff was operating was struck by one of two automobiles that were engaged in a 'drage race'; that 'he has been unable to this day to determine the identity of either one of the owners or operators of said vehicles'; that, under the terms of the insurance contract, he is entitled to recover his damages from the defendant. The defendant filed a general demurrer to the petition which was sustained. The plaintiff appealed and the case is here for review.

Kravitch & Hendrix, John W. Hendrix, Lionel E. Drew, Jr., Savannah, for appellant.

Hitch Miller, Beckmann & Simpson, Luhr G. C. Beckmann, Savannah, for appellee.

J. KELLEY QUILLIAN, Judge.

1. The primary question for determination in this case is whether it is a condition precedent to an action against an automobile liability insurance carrier under the provisions of Code § 56-407A (Ga.L.1963, p. 588; as last amended by Ga.L.1967, pp. 463, 464) on account of injuries and damages to the plaintiff resulting from the negligence of an unknown uninsured motorist, that suit shall have been brought and judgment entered against the unknown uninsured motorist.

In State Farm Mut. Auto. Ins. Co. v. Girtman, 113 Ga.App. 54, 147 S.E.2d 364, the above question was answered in the affirmative, in regard to a known uninsured motorist. Code § 56-407A(d) provides in part: 'If either the owner or operator of any vehicle causing injury or damages be unknown, an action may be instituted against the unknown defendant as 'John Doe' * * *.'; and further provides for service upon the insurance company as though it were a party defendant. The appellant contends that the statute makes a distinction in a case involving a known and unknown uninsured motorist and that the provisions of the above quoted statute is 'a permissive remedy only.' With this contention we cannot agree.

Since it is necessary for the insured to bring suit and obtain a judgment against the uninsured motorist to recover under the provisions of Code § 56-407A, we can only construe Code § 56-407A(d)...