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

Citation171 S.E.2d 735,120 Ga.App. 560
Decision Date07 October 1969
Docket NumberNos. 1,2,44362,3,Nos. 44361,s. 44361,s. 1
PartiesSTATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. J. W. GODFREY. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Ruby GODFREY
CourtUnited States Court of Appeals (Georgia)

Syllabus by the Court

When in a suit under the Uninsured Motorist's Act against John Doe (an alleged unknown owner or operator of a vehicle causing injury or damage to the plaintiff), the insurer moved for a summary judgment with supporting evidence establishing the identity of the owner and operator, and the plaintiff offered no probative evidence to rebut that presented by the insurer, the trial court erred in denying a summary judgment.

In each of these 'John Doe' actions filed against the allegedly unknown motorist pursuant to Ga.Laws 1963, p. 588, as amended (Code Ann. § 56-407.1(d)), the trial court certified for direct appeal its order denying the motion for summary judgment of the defendant and intervenor, the plaintiff's uninsured motorist insurer. The following summary and opinion relates to each of the actions.

Hitch, Miller, Beckmann & Simpson, Luhr G. C. Beckmann, Jr., Martin Kent, Savannah, for appellant.

Richard D. Phillips, Ludowici, for appellees.

HALL, Judge.

The insurer filed several defenses on behalf of the defendant and intervenor, raising the issue whether the owner or operator of the vehicle causing injury or damage was 'unknown' so as to authorize an action to be instituted against the unknown defendant as John Doe and served on the uninsured motorist insurer as prescribed by the statute, supra.

The statute respecting uninsured motor vehicles, supra, provides, 'A motor vehicle shall be deemed to be uninsured if the owner or operator thereof be unknown,' and 'If either the owner or operator of any vehicle causing injury or damages be unknown, an action may be instituted against an unknown defendant as 'John Doe,' and a copy of such action 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, and the insurance company shall have the right to file pleadings and take other action allowable by law in the name of John Doe or itself.' Code Ann. § 56-407.1(b), (d).

The following evidence was presented on the motion for summary judgment: The plaintiff testified that he was also the plaintiff in the case of J. W. Godfrey v. Hilton C. Hall, Jr. He filed this suit through his attorney against the alleged person named in the defendant's traverse of service filed in the 'John Doe' action. He filed the suit based on the best information he had and relying on whatever the investigation of his attorney and others showed. The plaintiff was hit on the highway about 2 miles from Jesup by an 'old covered truck.' The driver drove on off from the scene. The plaintiff asked someone in a restaurant to call the sheriff and then drove on toward Jesup. He met a state trooper and described the truck to him as 'an old covered truck.' The plaintiff did not know what kind or color it was. At Jesup he saw a truck pulled up in front of a produce market. The plaintiff went to the sheriff's office and got a deputy to go back with him to the truck. The truck had a cover on it and looked kind of like the one that hit him, but he couldn't swear that it was; but he knew he 'was hit by an old covered truck, looked like an old produce truck.' He saw no one around the truck. He left the sheriff and state patrolman and said, 'There it is, boys, I'm going. If you need me I'll be at the hospital.' He could not describe and had never seen the fellow driving the truck. The plaintiff gave the insurance agent information as to how the accident happened which was contained in an 'Automobile Claim Report' which the plaintiff signed, but did not give the agent the name or himself write the name of the driver of the other vehicle and this was not on the report when he signed and gave it to the agent. He did not know the named person and would not know him if he walked in.

The Solicitor of the City Court of Jesup testified that he issued an accusation charging Hilton Causby Hall, Jr., with speeding and with hitting and damaging Jake Godfrey while operating an automobile on the highway and unlawfully failing to stop. The accusation was based upon an affidavit of State Trooper Hendrix based on information contained in the police officer's report. The records of the court indicate and the solicitor knew of his own knowledge that the defendant entered a plea of guilty; he signed the plea as solicitor. The plea of guilty on the accusation (identified by the solicitor and exhibited with the deposition) is signed by 'W. Glenn Thomas, Defendant's Attorney,' and by the solicitor.

State Trooper Hendrix testified that he looked at the truck and saw some damage to the front; he got the tag number and found that the tag was issued to a fellow Hall. Later he procured a warrant for the arrest of Hilton Causby Hall. He parked close by and was watching the produce market, was given information that the fellow who had been driving the truck was inside, and called the sheriff's office to send a deputy. When the deputy arrived they went inside and asked a fellow standing there if he was Mr. Hall, and he said yes. They arrested him. Hendrix could not remember whether he asked or whether Hall admitted being the driver of the truck, but what he could gather from investigation indicated that he was. He did not see the man driving or around the truck. His investigation was based mainly on what Mr. Godfrey and another man said.

The deputy sheriff testified that he went with Trooper Hendrix into the place where they asked the name of the person pointed out as the driver of the truck, and got his driver's license, arrested him and put him in jail. He did not talk to him. He talked with Mr. Godfrey during the investigation. He was present in court when the man was represented by an attorney, Glenn Thomas, Jr. and heard him plead guilty. He had no indication that Hall was driving the truck other than statements of other persons. Hall did not deny he was the truck driver.

A certified copy of an Accident Report from the file of the State Patrol relating to the incident, signed by Trooper Hendrix, shows Hilton Causby Hall as the driver of a 1959 Chev. 1 ton truck.

The affidavit of the plaintiff states that the driver of the truck was unknown at the time of the collision and is still unknown; the driver did not stop, and no witnesses are known who can identify him.

While some of the evidence stated above might have been subject to an objection based on the 'best evidence rule,' an objection was not made in the trial court prior to the ruling on the motion for summary judgment. Therefore, such evidence will be considered by this court as part of the evidence which was before the trial court. Planters Rural Tel. Co.-op., Inc. v. Chance, 108 Ga.App. 146, 132 S.E.2d 90. We will not so consider the evidence of hearsay, which is without probative value.

The evidence that Hilton Causby Hall, Jr., pleaded guilty to the accusation charging him with hitting and damaging Jake Godfrey while on the highway and unlawfully failing to stop was admissible as a voluntary admission and prima facie evidence of the facts admitted. Henderson v. Henderson, 94 Ga.App. 64, 72, 93 S.E.2d 822; Akin v. Randolph Motors, Inc., 95 Ga.App. 841, 848, 99 S.E.2d 358. The plaintiff contends that this evidence was not admissible because Hall is not the real party in interest in this case. We disagree. The question of law in the case sub judice is whether the evidence presented by the insurer that Hall was the driver of the truck would be sufficient proof of identity in a suit brought by the plaintiff against Hall. If the finding is affirmative then the driver is not unknown. The issue of the identity of the driver is the same in each case and the answer here is derivative of what the answer would be in a suit against Hall. It would be ludicrous to exclude evidence in this case that would be admissible in a suit against Hall or admit evidence in this case which would be excluded in a suit against Hall.

The evidence of the plea of guilty plus the other admissible and probative evidence contained in the above summary 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. Crutcher v. Crawford Land Co., Inc., 220 Ga. 298, 302, 138 S.E.2d 580; General Gas Corp. v. Carn, 103 Ga.App. 542, 545, 120 S.E.2d 156; Brawner v. Martin & Jones Produce Co., Inc., 116 Ga.App. 324, 157 S.E.2d 514; Morrison v. Bonnie Davis Chevrolet, Inc., 120 Ga.App. 370, 170 S.E.2d 437.

The plaintiff relies on decisions of the Supreme Court of Appeals of Virginia applying the Virginia uninsured motorist statute which contains provisions like those in the Georgia statute quoted above. However, the facts in those cases are unlike those in the present case. In Mangus v. John Doe, 203 Va. 518, 125 S.E.2d 166, 168, at the time of the accident it did not appear that the plaintiff 'had sustained any damage to his automobile or that he had suffered any bodily injury, and under the circumstances there was no necessity for him to obtain the name and address of the operator, whom he did not know, or the license number of his vehicle,' and the court stated that in applying the statutory provision that if the owner or operator of the offending vehicle be unknown he shall be...

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