Goolsby v. Allstate Insurance

Court of Appeals of Georgia

Goolsby v. Allstate Insurance

213 S.E.2d 42, 133 Ga. App. 781, 1975 Ga. App. LEXIS 2282

CourtCourt of Appeals of Georgia

DecidedJanuary 29, 1975

Docket49781

StatusPublished

This text of 213 S.E.2d 42 (Goolsby v. Allstate Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Goolsby v. Allstate Insurance, 213 S.E.2d 42, 133 Ga. App. 781, 1975 Ga. App. LEXIS 2282 (Ga. Ct. App. 1975).

Pincite

Opinion

Bell, Chief Judge.

In a prior appearance (Goolsby v. Allstate Ins. Co., 130 Ga. App. 881 (204 SE2d 789)), we affirmed a judgment for plaintiffs relating to their claim for medical payments under an automobile insurance policy, but reversed the judgment that had been granted to defendant on the pleadings as to plaintiffs’ claim under the uninsured motorist coverage. The reason for our reversal was that even though plaintiffs’ complaint did not allege that a [782]*782judgment had been obtained against the uninsured motorist, compliance with this condition precedent to recovery could have been supplied by the evidence.

Submitted October 7, 1974 Decided January 29, 1975. John S. Boswell, Sr., for appellants.

After our remittitur was made the judgment of the trial court, defendant served a request for admissions of facts, which the plaintiffs did not answer. By not answering, plaintiffs admitted the substance of the request that they had not obtained a judgment against the uninsured motorist. Defendant thereafter moved for summary judgment based on the pleadings and plaintiffs’ "admissions” and the motion was granted. Held:

1. On appeal plaintiffs argue that since our prior judgment of reversal was without direction, this requires a hearing de novo on the issues before a jury. Plaintiffs rely on Worley v. Travelers Indemnity Co., 121 Ga. App. 179 (173 SE2d 248).

Worley, applied to this case, means that the parties were restored to the position in which they were before the erroneous judgment was pronounced. Thus, when this court reversed the trial court without direction and "[t]he judgment of this court was made the judgment of the court below, the former judgment was thereby vacated, and the case stood for trial de novo as in the first instance...” U. S. Fidelity &c. Co. v. Clarke, 187 Ga. 774, 782 (2 SE2d 608). Thus the provisions of the Civil Practice Act (Ga. L. 1966, p. 609 et seq.; Code Ann. § 81A-101 et seq.) were applicable to all proceedings in this case which included and permitted discovery and a motion for summary judgment.

As the plaintiffs have admitted that they have no judgment against the uninsured motorist, they cannot recover against the defendant insurer. Quattlebaum v. Allstatelas. Co., 119 Ga. App. 791 (1) (168 SE2d 596). The grant of summary judgment was correct.

2. The remaining enumeration of error has no merit.

Judgment affirmed.

Quillian and Clark, JJ., concur. Young, Young & Ellerbee, F. Thomas Young, for appellee.

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Bell, Chief Judge.

In a prior appearance (Goolsby v. Allstate Ins. Co., 130 Ga. App. 881 (204 SE2d 789)), we affirmed a judgment for plaintiffs relating to their claim for medical payments under an automobile insurance policy, but reversed the judgment that had been granted to defendant on the pleadings as to plaintiffs’ claim under the uninsured motorist coverage. The reason for our reversal was that even though plaintiffs’ complaint did not allege that a [782]*782judgment had been obtained against the uninsured motorist, compliance with this condition precedent to recovery could have been supplied by the evidence.

Submitted October 7, 1974 Decided January 29, 1975. John S. Boswell, Sr., for appellants.

After our remittitur was made the judgment of the trial court, defendant served a request for admissions of facts, which the plaintiffs did not answer. By not answering, plaintiffs admitted the substance of the request that they had not obtained a judgment against the uninsured motorist. Defendant thereafter moved for summary judgment based on the pleadings and plaintiffs’ "admissions” and the motion was granted. Held:

1. On appeal plaintiffs argue that since our prior judgment of reversal was without direction, this requires a hearing de novo on the issues before a jury. Plaintiffs rely on Worley v. Travelers Indemnity Co., 121 Ga. App. 179 (173 SE2d 248).

Worley, applied to this case, means that the parties were restored to the position in which they were before the erroneous judgment was pronounced. Thus, when this court reversed the trial court without direction and "[t]he judgment of this court was made the judgment of the court below, the former judgment was thereby vacated, and the case stood for trial de novo as in the first instance...” U. S. Fidelity &c. Co. v. Clarke, 187 Ga. 774, 782 (2 SE2d 608). Thus the provisions of the Civil Practice Act (Ga. L. 1966, p. 609 et seq.; Code Ann. § 81A-101 et seq.) were applicable to all proceedings in this case which included and permitted discovery and a motion for summary judgment.

As the plaintiffs have admitted that they have no judgment against the uninsured motorist, they cannot recover against the defendant insurer. Quattlebaum v. Allstatelas. Co., 119 Ga. App. 791 (1) (168 SE2d 596). The grant of summary judgment was correct.

2. The remaining enumeration of error has no merit.

Judgment affirmed.

Quillian and Clark, JJ., concur. Young, Young & Ellerbee, F. Thomas Young, for appellee.

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Bluebook (online)

213 S.E.2d 42, 133 Ga. App. 781, 1975 Ga. App. LEXIS 2282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goolsby-v-allstate-insurance-gactapp-1975.

Opinion

2. The remaining enumeration of error has no merit.

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