McLendon v. Lovejoy

305 S.E.2d 144, 166 Ga. App. 626, 1983 Ga. App. LEXIS 2270

• Court: Court of Appeals of Georgia
• Decided: April 28, 1983
• Docket: 66217
• Status: Published

Opinion

Banke, Judge.

The plaintiff appeals a judgment entered on a jury verdict in favor of the defendant in a negligence action arising from an automobile collision.

The defendant testified in his deposition that the car in front of his decelerated suddenly, causing him to collide with it and thus to be thrown unavoidably into the path of the plaintiffs vehicle, which was traveling in the same direction in another lane. On appeal, the plaintiff contends that the trial court erred in denying his request for permission to add this unknown motorist as a party defendant for the purpose of asserting a claim for uninsured motorist benefits in accordance with OCGA §§ 33-7-11 (b) (2) and 33-7-11 (d) [former Code Ann. §§ 56-407.1 (b) (2) and 407.1 (d)]. However, the plaintiff did not actually seek permission to add the unknown motorist as a defendant but moved rather for an “order requiring the defendant to name as a third-party defendant or as a co-defendant the unknown motorist referred to in the defendant’s deposition.” Held:

The court obviously could not require the defendant to name an additional defendant for the plaintiffs benefit. Consequently, although this may have been a proper case for joinder of the unknown motorist by the plaintiff pursuant to State Farm &c. Ins. Co. v. Carlson, 130 Ga. App. 27 (1) (202 SE2d 213) (1973), the trial court committed no error in denying the relief actually requested.

Decided April 28, 1983 Rehearing denied May 13, 1983 George P. Graves, E. Graydon Shuford, for appellant. Richard L. Ormond, for appellee.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.