Smith v. Doe

• Decision Date: 24 October 1988
• Docket Number: No. 76634,76634
• Citation: 189 Ga.App. 264,375 S.E.2d 477
• Parties: SMITH v. DOE et al.
• Court: Georgia Court of Appeals

Page 477

375 S.E.2d 477

189 Ga.App. 264

SMITH v. DOE et al.

No. 76634.

Court of Appeals of Georgia.

Decided Oct. 24, 1988.

Rehearing Denied Nov. 15, 1988.

Certiorari Denied Jan. 6, 1989.

John M. Beauchamp & Associates, Kermit S. Dorough, Jr., Albany, for appellant.

Allen & Kelley, Roy B. Allen, Jr., Tifton, Divine, Wilkin, Deriso, Raulerson & Fields, W. Douglas Divine, Albany, for appellees.

BENHAM, Judge.

The issue to be resolved in this case is whether a plaintiff can maintain in a single lawsuit a John Doe action against an unknown hit-and-run driver and, in the alternative, an action against a named person whom the plaintiff accuses of being the tortfeasor. We answer the question in the affirmative and reverse the judgment below.

The collision out of which this action arose occurred while appellant was sitting in the back seat of a car in front of his home. Another car collided with the one in which appellant sat, injuring him. Appellant did not see who was driving the other car, but two eyewitnesses called out that the car across the street had hit the one in which appellant sat. Those same two witnesses and appellant subsequently identified from a photograph a vehicle owned and operated by Waters. Waters has denied involvement in the collision and, so far as the record shows, has not been charged with any offense arising therefrom.

Appellant filed suit against John Doe and then amended his complaint to add another count naming Waters as the tortfeasor. Appellant's uninsured motorist carrier answered in the name of John Doe and moved for summary judgment on the ground that the tortfeasor was not unknown. In support of the motion, appellee points to the deposition testimony of appellant and his aunt and uncle, the eyewitnesses to the collision. In all three depositions, Waters' car is identified as the one which struck the car in which appellant was sitting. However, the record also contains an affidavit by Waters in which he asserts that his car was not involved in a collision on that date or any other date.

1. Relying on State Farm, etc., Ins. Co. v. Godfrey, 120 Ga.App. 560, 171 S.E.2d 735 (1969), the trial court granted summary judgment to John Doe, holding that, in Godfrey, "the Court stated that evidence concerning the identity of the driver previously said to be unknown creates no genuine issue of fact that the driver was unknown." What this court actually said in Godfrey was as follows: "The evidence of the plea of guilty [by the person whom the insured had named in another suit as the tortfeasor] plus the other admissible and probative evidence ... pierced the allegations of the complaint naming the defendant as John Doe (as the alleged unknown owner or operator of the vehicle causing injury or damage to the plaintiff). The evidence presented by the plaintiff and before the trial court (that the driver was unknown to him) in no way rebuts the evidence for the defendant that the driver of the vehicle was Hall and creates no genuine issue of fact that the owner or operator of the vehicle causing injury was unknown. [Cits.]" Id. at 564, 171 S.E.2d 735. It is clear, however, that in the present case the depositions of appellant and his aunt and uncle and the affidavit from Waters create a question of fact concerning Waters' identity as the driver of the car involved in the collision, a question of fact which would clearly preclude the grant of summary judgment to appellant against Waters. That being so, Godfrey is distinguishable, as is Fidelity, etc., Co. of N.Y. v. Wilson, 124 Ga.App. 444, 184 S.E.2d 21 (1971), where the identity of the tortfeasor was not in question.

2. The key to appellee's defense in this case has been its insistence that the tortfeasor is "known." In addition to asserting that there is no question of fact presented by the evidence, an assertion we have rejected above, appellee contends that appellant is bound by the allegation in the second count of the complaint that Waters is the tortfeasor. Appellee's argument on this issue ignores the liberal pleading provisions of our Civil Practice Act which permit a plaintiff to assert inconsistent claims in a single...