Jones v. Doe

238 S.E.2d 555, 143 Ga. App. 451, 1977 Ga. App. LEXIS 2360

• Court: Court of Appeals of Georgia
• Decided: September 9, 1977
• Docket: 54154, 54155
• Status: Published

Opinions

Quillian, Presiding Judge.

Plaintiffs, Dwight and Willie Jones, were passengers in a car owned and operated by Clyde Weaver, when they were struck from the rear by another vehicle. The other vehicle did not stop and the identity of the driver was never ascertained. The Weaver car was insured by Associated Indemnity Corporation, and included uninsured motorist coverage. ■ Both plaintiffs and Mr. Weaver were injured and hospitalized as a result of those injuries.

Plaintiffs brought suit under Code Ann. § 56-407.1 (Ga. L. 1963, p. 588, as amended through 1976, pp. 1195, 1196), against John Doe as the unknown driver of the hit and run vehicle. Associated answered and filed defensive pleadings. After discovery, Associated moved for summary judgment on the ground of failure of compliance with Code Ann. § 56-407.1 (c), supra, which provides in part: "If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured be unknown, the insured, or someone on his behalf... in order for the insured to recover under the indorsement, shall report the accident as required by Chapter 92A-6.”

Code Ann. § 92A-604 (Ga. L. 1951, pp. 565, 568 as amended through 1964, pp. 224, 226) provides, in part, that the operator of a vehicle involved in an accident in which death or injury occurs, or property damage of one person amounts to $100 or more, shall "within 10 days” after the accident make a report thereof to the director. An attached affidavit to Associated’s motion was that of an assistant supervisor of the Georgia Department of Public Safety, which showed the records of that office failed to reveal any record of an accident report being filed by or on behalf of either of the plaintiffs.

Plaintiffs submitted an affidavit of Mr. Weaver which stated he was released from the hospital on February 14,1975, and on February 17,1975, obtained an "Accident Report Form from the Department of Public Safety; filled it out, and mailed it to them in a properly addressed and stamped envelope to the address given on the form. The Report was not returned. . .”

Associated’s motion for summary judgment was granted. Plaintiffs appeal. Held:

Assuming arguendo that defendant is correct in his contention that the requisite report was not filed as required by Code Ann. § 56-407.1 (c), supra, granting of summary judgment was error. Code Ann. § 92A-604 requires the report to be filed within 10 days after the accident, or if the individual is physically unable to do so — then as soon as possible. However, Code Ann. § 92A-9918 (a) (Ga. L. 1951, pp. 565, 575), states that a failure to file such accident report shall be punished by a fine not in excess of $25 and suspension of the license of the person failing to make such report "until such report has been filed. . .” A clear reading of this section in pari materia with Code Ann. § 56-407.1 (c), supra, reveals that when an individual fails to file this report within the allotted time, he may achieve full compliance with this chapter by filing such report at any time thereafter. Thus, the failure to file in accordance with Code Ann. § 56-407.1 (c), supra, results only in abatement of the right to file an action against an insurance carrier until the report is filed — provided the statute of limitation is not involved.

Our Supreme Court held in Ogden Equip. Co. v. Talmadge Farms, Inc., 232 Ga. 614, 615 (208 SE2d 459), that our summary judgment statute, Code Ann. § 81A-156 (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238; 1975, pp. 757, 759) "contemplates a judgment on the merits, and cannot be properly utilized to raise matter in abatement.” See Carlson v. Hall County Planning Comm., 233 Ga. 286 (2) (210 SE2d 815);Dunlap v. Dunlap, 234 Ga. 304 (1) (215 SE2d 674). Thus, a failure to file the accident report merely abates the right to institute suit until compliance with the statute. Therefore it is not a proper subject for summary judgment.

Judgment reversed.

Shulman and Banke, JJ., concur. Argued July 11, 1977 Decided September 9, 1977 Rehearing denied October 11, 1977 Richard R. Kirby, for appellants. Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, F. Clay Bush, for appellee.