McGhee v. Kroger Company

Court of Appeals of Georgia

McGhee v. Kroger Company

257 S.E.2d 361, 150 Ga. App. 291, 1979 Ga. App. LEXIS 2183

CourtCourt of Appeals of Georgia

DecidedJune 13, 1979

Docket57427

StatusPublished

Cited by5 cases

This text of 257 S.E.2d 361 (McGhee v. Kroger Company) 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

McGhee v. Kroger Company, 257 S.E.2d 361, 150 Ga. App. 291, 1979 Ga. App. LEXIS 2183 (Ga. Ct. App. 1979).

Pincite

Opinion

Smith, Judge.

Appellant McGhee filed a third-party action against appellees, Kroger Company and Insurance Company of North America, and it is from the grant of their motion to dismiss that this appeal arises. We affirm.

By an October 14, 1976 order of the State Board of Workers’ Compensation, appellees were ordered to pay Urban Medical Hospital for an as-of-then undetermined amount of expenses incurred there by appellant. Having received no compensation, on May 15, 1978, the hospital filed suit against appellant for a $695.10 indebtedness. Appellant filed a third-party complaint against appellees, seeking recovery both of any amount the hospital succeeded in recovering from her and of her attorney fees incurred in defending the hospital’s action and prosecuting the third-party complaint. Thereupon appellee Insurance Company of North America, prior to the filing of appellees’ answer and motion to dismiss, discharged the indebtedness to the hospital and the latter dismissed its action. The grounds of appellees’ motion to dismiss, which accompanied their answer, were that the appellee insurance company had discharged the indebtedness, and that, as to the insurance company only, venue was improper and service was insufficient.

1. The return of service by the DeKalb County *292 deputy marshal conclusively showed that service was not perfected upon the insurance company. Therefore, as to the insurance company, the grant of the motion to dismiss was proper. See Boyer v. King, 129 Ga. App. 690 (200 SE2d 906) (1973).

Argued March 12, 1979 Decided June 13, 1979. Paul C. Myers, for appellant. Smith, Cohen, Ringel, Kohler & Martin, Williston C. White, Steve Goldner, for appellees.

2. Citing Code §§ 56-1206 and 114-712 (Ga. L. 1920, pp. 167, 201, as amended; superseded by Ga. L. 1978, pp. 2220, 2234, effective July 1, 1978), appellant contends that the grant of the motion to dismiss was incorrect, because Kroger should be held liable for a 25% penalty and attorney fees. Code § 56-1206, however, does not pertain, as it applies only to an "insurer,” defined by Code § 56-103 as "every person engaged as indemnitor, surety or contractor who issues contracts of insurance.” Assuming it would otherwise be applicable, neither is Code § 114-712 here apposite, since the discharge of the indebtedness, as a matter of law, was a "reasonable ground” for Kroger’s defense. Code § 114-712.

Judgment affirmed.

Quillian, P. J., and Birdsong, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Smith, Judge.

Appellant McGhee filed a third-party action against appellees, Kroger Company and Insurance Company of North America, and it is from the grant of their motion to dismiss that this appeal arises. We affirm.

By an October 14, 1976 order of the State Board of Workers’ Compensation, appellees were ordered to pay Urban Medical Hospital for an as-of-then undetermined amount of expenses incurred there by appellant. Having received no compensation, on May 15, 1978, the hospital filed suit against appellant for a $695.10 indebtedness. Appellant filed a third-party complaint against appellees, seeking recovery both of any amount the hospital succeeded in recovering from her and of her attorney fees incurred in defending the hospital’s action and prosecuting the third-party complaint. Thereupon appellee Insurance Company of North America, prior to the filing of appellees’ answer and motion to dismiss, discharged the indebtedness to the hospital and the latter dismissed its action. The grounds of appellees’ motion to dismiss, which accompanied their answer, were that the appellee insurance company had discharged the indebtedness, and that, as to the insurance company only, venue was improper and service was insufficient.

1. The return of service by the DeKalb County *292 deputy marshal conclusively showed that service was not perfected upon the insurance company. Therefore, as to the insurance company, the grant of the motion to dismiss was proper. See Boyer v. King, 129 Ga. App. 690 (200 SE2d 906) (1973).

Argued March 12, 1979 Decided June 13, 1979. Paul C. Myers, for appellant. Smith, Cohen, Ringel, Kohler & Martin, Williston C. White, Steve Goldner, for appellees.

2. Citing Code §§ 56-1206 and 114-712 (Ga. L. 1920, pp. 167, 201, as amended; superseded by Ga. L. 1978, pp. 2220, 2234, effective July 1, 1978), appellant contends that the grant of the motion to dismiss was incorrect, because Kroger should be held liable for a 25% penalty and attorney fees. Code § 56-1206, however, does not pertain, as it applies only to an "insurer,” defined by Code § 56-103 as "every person engaged as indemnitor, surety or contractor who issues contracts of insurance.” Assuming it would otherwise be applicable, neither is Code § 114-712 here apposite, since the discharge of the indebtedness, as a matter of law, was a "reasonable ground” for Kroger’s defense. Code § 114-712.

Judgment affirmed.

Quillian, P. J., and Birdsong, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

257 S.E.2d 361, 150 Ga. App. 291, 1979 Ga. App. LEXIS 2183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcghee-v-kroger-company-gactapp-1979.

Opinion

Related

Cite This Page — Counsel Stack