Norman v. Daniels

• Decision Date: 13 May 1977
• Docket Number: No. 53820,No. 3,53820,3
• Citation: 236 S.E.2d 121,142 Ga.App. 456
• Parties: Timmy NORMAN v. Benjamine DANIELS
• Court: Georgia Court of Appeals

Page 121

236 S.E.2d 121

142 Ga.App. 456

Timmy NORMAN v. Benjamine DANIELS.

No. 53820.

Court of Appeals of Georgia, Division No. 3.

May 13, 1977.

Rehearing Denied May 31, 1977.

Scheer & Elsner, Robert A. Elsner, Michael Weinstock, Atlanta, for appellant.

Long, Weinberg, Ansley & Wheeler, Charles E. Walker, Dan B. Wingate, Atlanta, for appellee.

1. The provisions of Code Ann. § 56-407.1(e) to the effect that if the identity of an owner or operator of a vehicle causing damage to the plaintiff is known but such person cannot after due diligence be found or conceals himself to avoid service of summons, the action may in certain circumstances proceed against the uninsured motorist insurer who has itself been properly served does not constitute a denial of due process. Service by publication is insufficient to be the basis of an in personam judgment against the tortfeasor, but is not cause for dismissal of the action as against the insurer.

2. (a) Cases decided prior to Code Ann. § 56-407.1(e) holding an unobtainable in personam judgment against tortfeasors whose whereabouts are unknown is a condition precedent to the obtention of a judgment against the insurer are no longer controlling, since "whereabouts unknown" is now equated with "identity unknown."

(b) The plaintiff has the burden of proving in the first instance that due diligence has been used in the attempt to trace the whereabouts of the alleged tortfeasor, and thereafter the burden of establishing that the tortfeasor was in fact liable, before judgment against the insurer may be obtained.

(c) The action is not barred by the statute of limitations.

Following certain alleged injuries in a motor vehicle collision the appellant filed suit against one Benjamin Daniels and the appellant's own uninsured motorist insurer. The latter was promptly served. Continued efforts to trace the whereabouts of Daniels were unavailing. The action was filed about ten months after the collision, but another 25 months elapsed before an order of service by publication was requested. The trial court first granted, then rescinded, an order allowing publication and thereafter granted the insurer's motion to dismiss the action, from which judgment plaintiff appeals.

DEEN, Presiding Judge.

1. Ga.L.1972, p. 882, amended Code Ann. § 56-407.1 by adding a new subsection (e) by providing that where the owner or operator of a vehicle causing injury or damage is known and is named as a defendant in an action "but such person resides out of the State, or has departed from the State, or cannot after due diligence be found within the State, or conceals himself to avoid the services (sic) of summons, and this fact shall appear by affidavit to the satisfaction of the judge of the court, and it shall appear either by affidavit or by a verified complaint on file that a claim exists against the owner or driver in respect to whom service is to be made, and that he is a necessary or proper party to the action, such judge may grant an order that the service be made on the owner or driver by the publication of summons. A copy of any action filed and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though such insurance company were actually named as a party defendant. The provisions of subsection (d) of this section shall govern the rights of the insurance company, the duties of the clerk of court concerning duplicate original copies of the pleadings, and the return of service." Subsection (d) provides for a John Doe action with service on the insurer "as though such insurance company were actually named as a party defendant," from which it appears that the insurance company receives the same notice whether the tortfeasor is unknown or whether his identity (actual or putative) is known but he is not to be found, and therefore cannot be served. As stated in Houston v. Doe, 136 Ga.App. 583, 222 S.E.2d 131: "The Uninsured Motorist Act does not create a new right in plaintiffs to sue an uninsured owner or driver of another vehicle; it merely provides a new procedure whereby such plaintiffs may recover their losses from their own insurer whether the real defendant's identity be known or not." Since the injured plaintiff may recover from his own uninsured motorist insurance carrier where the tortfeasor is a hit and run driver who has disappeared from view without revealing his identity by service on the insurer only, it follows that such service is not a denial of due process, and the result which accrues is that the insurer becomes the defendant in fact. If the insurer, even after judgment and payment, should discover the identity of the tortfeasor, it is of course subrogated to the plaintiff's rights, but the plaintiff has in no meaningful sense either served or obtained a judgment against the tortfeasor by his John Doe action.

Equally, where the alleged tortfeasor has disclosed a name and address, and is not to be found at such address, or the name, because it is an alias or because he has absconded, cannot be linked to a real person, and diligent inquiry fails to turn him up anywhere, such defendant is in truth and in fact an unknown motorist, and the provisions of Code Ann. § 56.407.1(e) should be applied so as to allow the action against the insurer to proceed. The statement in Quattlebaum v. Allstate Ins. Co., 119 Ga.App. 791(2),168 S.E.2d 596 to the effect that a motorist whose identity is known does not become "unknown" within the meaning of the statute merely because his whereabouts is unknown was perfectly true prior to the 1972 amendment because there was no statutory...