Phillips v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 06 March 1970
• Docket Number: No. 2,No. 45095,45095,2
• Citation: 121 Ga.App. 342,173 S.E.2d 723
• Parties: J. C. PHILLIPS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
• Court: Georgia Court of Appeals

Page 723

173 S.E.2d 723

121 Ga.App. 342

J. C. PHILLIPS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

No. 45095.

Court of Appeals of Georgia, Division No. 2.

March 6, 1970.

Syllabus by the Court

1. Settlement of an action for personal injuries and for property damage to an automobile effectively terminated plaintiff's claim for the automobile damage. This rule is not changed by reason of the fact that plaintiff may have carried collision insurance coverage on his automobile with the same company that carried liability coverage on the defendant's vehicle.

2. (a) Affirmative defenses not pleaded are, as a general rule, waived. However, these may be raised in motions to strike or to dismiss or for summary judgments as well as by special pleas or in the answer, and if evidence sufficient to sustain the defense is admitted without objection as to lack of pleading and no surprise is claimed, there is a waiver of defendant's failure to plead it.

(b) An issue not raised in or passed on by the trial court cannot be raised for the first time on appeal.

A collision occurred between the automobiles of J. C. Phillips and J. B. Humphrey, both of whom carried liability insurance policies with State Farm Mutual Automobile Insurance Company. Phillips had collision coverage included in his policy.

Phillips brought suit against Humphrey to recover for personal injuries which he received in the collision and for damage to his automobile. His wife brought suit for loss of consortium. The two suits were settled and Mr. and Mrs. Phillips executed releases to 'John Bruce Humphrey, his heirs, executors, administrators, agents and assigns, and all other persons, firms, or corporations liable or who might be claimed to be liable * * * from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 7th day of April, 1968' on North Druid Hills Road-this being the collision above mentioned.

A stipulation of dismissal was signed by counsel for the plaintiffs and counsel for the defendant and filed in the court as a part of the record as follows: 'All issues raised by the pleadings in the above stated matter having been fully and finally settled by and between the parties herein, and the defendant having been released of all liability, it is hereby stipulated by and between the parties, acting through their counsel of record, that said case be dismissed with prejudice and the Clerk of the Superior Court of Coweta County, Georgia is hereby notified, authorized and directed to mark the same settled and dismissed with prejudice on his records upon payment of all costs of court by the defendant.' The costs were paid and the dismissal was entered. As to the effect of the dismissal see Universal Credit Co. v. Service Fire Ins. Co., 69 Ga.App. 357, 25 S.E.2d 526. As to the release see Pennsylvania Cas. Co. v. Thompson, 130 Ga. 766, 61 S.E. 829; Southern Bell T. & T. Co. v. Smith, 129 Ga. 558, 59 S.E. 215.

Thereafter Phillips made claim against State Farm under his policy for certain medical payments and for the collision loss on his automobile. State Farm recognized the claim for medical payments and offered to pay it, but denied the claim for the collision loss, asserting that Phillips had already received payment for this item, had settled his claim therefor and that he was not entitled to a double payment on it. Phillips sued for the two items and for attorneys' fees, alleging bad faith. State Farm paid into court the amount of the claim for medical payments and defended as to the collision loss.

State Farm moved for summary judgment, relying on the release and the stipulation of dismissal, and Phillips moved for summary judgment on the matter of liability. After hearing, the court sustained the motion of State Farm, denied the motion of Phillips and Phillips appeals.

Walter W. Calhoun, Atlanta, for appellant.

Smalley & Cogburn, Robert H. Smalley, Jr., Griffin, for appellee.

EBERHARDT, Judge.

1. In his suit against Humphrey, Phillips claimed damages for specified personal injuries which he had received in the collision and which he alleged to have been occasioned by Humphrey's negligence. He also alleged in his petition that 'As a result of being struck by the automobile of the defendant, the plaintiff's automobile, a 1964 Oldsmobile sedan, was a total loss, the same having a fair market value before the collision of $1,015 and a fair market value thereafter of only $200,' and further that 'plaintiff brings this action against the defendant for personal injuries, pain and suffering, loss of consortium and services of his wife, loss of an automobile, and such expenses as may be incurred * * *.'

It was entirely proper for plaintiff to include in his suit his claim for personal injuries, his claims for loss of his wife's services, etc. and his claim for damage to his automobile. Indeed, if he had proceeded without including his personal property damage he would have been deemed to have waived it. Georgia Railway & Power Co. v. Endsley, 167 Ga. 439, 145 S.E. 851; Gregory v. Schnurstein, 212 Ga. 497, 93 S.E.2d 680; House v. Benton, 42 Ga.App. 97, 155 S.E. 47; Universal Credit Co. v. Service Fire Ins. Co., 69 Ga.App. 357, 25 S.E.2d 526, supra; Giles v. Smith, 80 Ga.App. 540, 56 S.E.2d 860; Kelly v. McCoy, 85 Ga.App. 514, 69 S.E.2d 652; Kransner v. O'Dell, 89 Ga.App. 718, 80 S.E.2d 852; Bennett v. Dove, 93 Ga.App. 57, 90 S.E.2d 601; Coleman v. State Farm Mutual Auto Ins. Co., 104 Ga.App. 328, 121 S.E.2d 833. ¹

Consequently, it must follow that when plaintiff effected the settlement, signed the release and the stipulation for dismissal and caused his suit to be dismissed, his claim for the damage to his automobile, having been included in the action, was fully satisfied and terminated, and, as was declared in Donaldson v. Carmichael, 102 Ga. 40, 42, 29 S.E. 135, 136, 'there can be no double recovery of the amount of damage which one has sustained.' This was the basis for the holding in Universal Credit Co. v. Service Fire Ins. Co., 69 Ga.App. 357, 25 S.E.2d 526, supra, which we think is controlling here.

That State Farm has tendered and paid into court the amount of the medical expense which plaintiff claims under other provisions of his policy does not alter the matter. Cf. Wrightsman v. Hardware Dealers Mut. Fire Ins. Co., 113 Ga.App. 306, 147 S.E.2d 860. The tender or payment into court simply eliminated these items as an issue.

Nor does it matter that State Farm happened to be the insurer of both plaintiff and defendant. That did not affect its right of subrogation to plaintiff's claim for the damage to his automobile if settlement for the damage were made under his collision coverage; and if that right...