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

• Decision Date: 16 May 1966
• Docket Number: 3,2,Nos. 1,No. 41867,41867,s. 1
• Citation: 113 Ga.App. 815,149 S.E.2d 852
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. William GLOVER et al
• Court: Georgia Court of Appeals

Page 852

149 S.E.2d 852

113 Ga.App. 815

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. William GLOVER et al.

No. 41867.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

May 16, 1966.

Rehearing Denied June 13, 1966.

Syllabus by the Court

Under the uninsured motorist law the plaintiff's insurer has the constitutional right to urge the non-liability of the uninsured motorist where the case is in default as to the uninsured motorist, and to contest the jurisdiction of the court over the uninsured motorist. Under the facts of this case there is no conflict of interest as to the plaintiff's insurer and the plaintiff.

This is an appeal from the City Court of Sylvester, by State Farm Mutual Automobile Insurance Company, which had filed defensive pleadings as intervenor (as allowed by order of the trial judge) in an automobile damage suit pending in the City Court of Sylvester. Appellant had issued its policy of automobile liability insurance containing 'uninsured motorist' coverage which applied to the collision being sued on. Certain orders and rulings of the trial judge adverse to appellant are appealed to this court as being in error. For convenience, appellant is sometimes referred to herein as 'State Farm' and/or 'Intervenor,' and Arthur Guarnieri is sometimes referred to herein as 'plaintiff' the position he occupied in the trial court. On May 13, 1965, Arthur Guarnieri, by next friend, filed his suit for personal injuries in the City Court of Sylvester, against Junior Lee Jordan, alleged therein to be a resident of Colquitt County, Ga. and against William Glover, alleged therein to be a resident of Worth County. The petition alleged that the plaintiff sustained personal injuries and property damage for which the action was brought, allegedly caused by the negligence of the defendant, Junior Lee Jordan, while operating an automobile belonging to defendant William Glover which was involved in a collision with the motorcycle being operated by plaintiff. This petition was served on Junior Lee Jordan but was never served on William Glover. Plaintiff caused a copy of the petition in this matter to be served on State Farm as provided by Georgia L., 1964, pp. 306-309, which Act relates to uninsured motorists. No defensive pleadings or appearance has ever been made in the case by either Junior Lee Jordan or William Glover. State Farm filed its petition in the trial court for leave to intervene in the cause, alleging that it had issued an automobile liability insurance policy providing coverage to plaintiff for damages caused by an 'uninsured motorist' under provisions of such insurance policy; that it had been served with a copy of the petition filed by the plaintiff; that it was necessary to protect State Farm's rights that it be given leave to intervene, made a party to the cause, and allowed to file an answer and other defensive pleadings to the plaintiff's petition; and that State Farm should be given an opportunity to resist the rendition of a judgment operating to its prejudice in the case. On June 19, 1965, at a time when no party was in default, the trial judge entered an order extending the time within which the insurance company might file 'an answer demurrers, pleas or any other pleadings' in the case for an additional period of time after the entry of the final order of the court granting or denying the petition for leave to intervene. This order was consented to in writing by the plaintiff's counsel. The trial court ordered the petition for leave to intervene filed and set a date for hearing thereon. The trial court entered an order on July 10, 1965, reciting that the petition to intervene having come on regularly to be heard on July 9, 1965, the court ordered that the petition for leave to intervene by State Farm be granted, and ordered that State Farm be made a party intervenor 'authorized to make such appearances and to file such answer and other pleadings as it deems appropriate.' Thereafter, State Farm filed a timely plea to the jurisdiction of the court on July 21, 1965 before filing its answers or demurrers to the petition. In this plea State Farm alleged that (1) Junior Lee Jordan is a resident of Colquitt County, Ga., is not a resident of Worth County, Ga., and that the Superior Court of Colquitt County has jurisdiction of this case and the City Court of Sylvester has not; (2) that at the time of filing of the plea to the jurisdiction by State Farm, Junior Lee Jordan has failed to file a plea to the jurisdiction or other defensive pleadings, though more than thirty days have elapsed since the time he was served with process and suit; (3) that intervenor has not waived jurisdiction as to the parties herein and any waiver by Junior Lee Jordan of jurisdiction would be prejudicial to this intervenor; and (4) that as of the date of the filing of the plea the co-defendant, William Glover, has not been served with process or copy of the petition herein. Appellant filed demurrers to the petition and an answer. Appellant renewed its demurrers after the petition was amended by plaintiff. In its answer, appellant denied the material allegations of negligence contained in the petition. On August 12, 1965, appellant propounded interrogatories to plaintiff. On August 13, 1965, plaintiff propounded interrogatories to appellant. On August 21, 1965, appellant filed objections to the interrogatories propounded by plaintiff. On August 23, 1965, plaintiff filed objections to appellant's interrogatories. The attorney for plaintiff, H. P. Burt, filed an affidavit relating to the interrogatories on August 27, 1965. The attorney for appellant, Mr. George D. Busbee, filed an affidavit relating to the interrogatories on August 27, 1965. On August 28, 1965, the plaintiff filed an amendment striking paragraph one of the original petition, wherein plaintiff had alleged that Junior Lee Jordan was a resident of Colquitt County, Ga., and inserting in lieu thereof a new paragraph 1 alleging that Junior Lee Jordan was a resident of Worthy County, Georgia. On September 11, 1965, plaintiff filed three motions in the case. They are as follows: '1. Comes now plaintiff and moves the court to dismiss intervenor's (State Farm Mutual Insurance Company) answer with respect to contesting the alleged negligence charged against defendant, Junior Lee Jordan, on the ground that said case is in default as to Junior Lee Jordan and the only issue remaining is the question of damages. Plaintiff moves the court to strike the following paragraphs to defendant's answers: 1, 2, 3, 4, that portion of paragraph 1 denying paragraph 9 of plaintiff's petition and paragraph 8.' '2. Comes now plaintiff, and moves the court to dismiss intervenor's (State Farm Mutual Automobile Insurance Company) demurrers on the ground; (I) There is no provision of law authorizing intervenor to file said demurrers.' '3. Comes now plaintiff, and moves the court to dismiss intervenor's (State Farm Mutual Automobile Insurance Company) plea to the jurisdiction on the ground: (I) A plea to the jurisdiction is a personal plea, which can only be filed by the defendant, Junior Lee Jordan. (II) Said action is in default as to defendant, Junior Lee Jordon, who was served personally in said State and county. (III) There is no provision of law authorizing intervenor to file said plea.' Appellant filed a motion to dismiss the plaintiff's petition because plaintiff had willfully failed and refused to respond to interrogatories to which no objections were filed by plaintiff, and that plaintiff had willfully failed to answer interrogatories or cause any hearing to be held on his objections. On December 11, 1965, the court entered two orders. The first order reads as follows: 'The plaintiff's motion to dismiss intervenor's answer with respect to the alleged negligence charged against defendant, Junior Lee Jordan, coming on for a hearing, and after due consideration of same, it is ordered that said motion be sustained and that the case be marked in default as to defendant, Junior Lee Jordan.' The second order of December 11, 1965, reads as follows: 'The plaintiff's motion to dismiss intervenor's plea to the jurisdiction, coming on for a hearing, after due consideration of same, it is ordered that said motion be sustained, and the said plea be dismissed.' On January 3, 1966, the court entered an order overruling the demurrers of appellant as renewed. On January 3, 1966, the trial judge also entered the following order in this case: 'With respect to the pending motions as filed in court in the above stated case, by the plaintiff in said case, and also by the intervenor in said case, pertaining to the interrogatories as filed in court by each of said respective parties hereto and more specifically pertaining to the admissibility and execution of certain numbered questions as propounded and contained in interrogatories as filed with the clerk of the court by each of said parties hereto, and, it now appearing to the court that said case is, in default as to the defendant in said case, no answer having been filed. And it further appearing, that the question involved in this cause of action is one of unliquidated damages, which of course is incumbent on the part of the plaintiff to prove. Accordingly, all motions and objections as made by each of the parties hereto, plaintiff and intervenor, with respect to interrogatories, are hereby overruled and denied, excepting such evidence only as may be applicable and admissible in establishing the amount of unliquidated damages in said case, and/or in mitigation thereof and which evidence when so submitted, the intervenor herein is not precluded from contesting the same in mitigation of the amount of such damages claimed by due cross examination as he may deem proper.'

The insurance company appeals from the order of the court, dated January 3, 1966, overruling the general demurrers of Intervenor to plaintiff's petition as amended; the...