author: Banke, Presiding Judge. Beasley, Judge,

text:
    76719.
    CANAL INSURANCE COMPANY v. HARRISON.
    (376 SE2d 923)
   Banke, Presiding Judge.

Harrison sued Canal Insurance Company to recover casualty insurance benefits allegedly due him for damage to a truck. Canal denied liability, contending that the loss was not covered by the policy in question and that any contrary representations which may have been made to Harrison by the independent broker who had secured the policy on his behalf were not binding on the company due to the absence of any agency relationship between itself and that broker. The case was tried before a jury, which determined that Canal was liable for benefits in the amount of $5,650.85, plus a bad-faith penalty in the amount of $565 and attorney fees in the amount of $4,000. Canal appeals.

Harrison is a self-employed asphalt paving contractor who performs work in several states. In April of 1986, while working on a job in Lexington, South Carolina, he telephoned Wright (the president of Allied Assurance Agency located in Columbia, South Carolina) seeking casualty insurance coverage for two dump trucks used in his business. Allied was an independent broker which placed coverage with several insurance companies, including Canal. In response to Harrison’s call, Wright obtained premium information from Canal, gave Harrison a quote, and mailed him a policy application. Harrison signed the application form (which he contends was uncompleted) and returned it to Wright, along with money orders for the down payment on the premium. Wright then mailed the completed application and down payment to Canal, which thereupon issued the policy in question and mailed it to Wright. The effective date shown on the policy was the date Canal received the completed application and premium payment from Wright.

Consistent with the language of the completed application and with the amount of the premium charged for the insurance, the policy did not provide coverage outside a radius of a hundred miles from Lexington, South Carolina, the location where Harrison had been working at the time he initiated contact with Wright. While the policy was in effect, one of the covered vehicles rolled down a hill at a job site in Chattanooga, Tennessee, and sustained the damage upon which the present claim is predicated. A copy of the policy had not as of that date been forwarded to Harrison. Harrison notified Wright of the mishap, and Wright notified Canal, which ultimately denied the claim on the ground that the accident had occurred outside the radius of coverage. Held:

1. “The ‘authority of the agent’ has been defined as the power of the agent to affect the legal relations of the principal by acts done in accordance with the principal’s manifestations of consent to him. The authority of the agent is the very essence of the principal and agent relationship; unless otherwise agreed, it includes only authority to act for the benefit of the principal, and the source of the authority is always the principal, and never the agent.” 3 AmJur2d 574, Agency § 71. See generally OCGA § 10-6-1.

It is apparent without dispute from the evidence in this case that if Wright was acting as Canal’s agent in this transaction, he was acting as a dual agent — i.e., as an agent for both parties. There is no suggestion either that Canal was aware of the preliminary discussions between Harrison and Wright regarding the coverage to be procured or that it was otherwise in complicity with Wright with respect to any misrepresentations he may have made to Harrison in this regard. It follows that Canal cannot be held liable to Harrison in tort for any negligence or wrongdoing on Wright’s part. “ ‘It is generally recognized that where an agent represents two adverse parties in a transaction with the knowledge and consent of both, neither principal is liable to the other for the tortious acts of the agent so situated where the opposite principal is not in complicity with the agent or in no way participates in the tortious act.’ ” Home Materials v. Auto Owners Ins. Co., 250 Ga. 599, 602 (300 SE2d 139) (1983), citing Hodges v. Mayes, 240 Ga. 643, 644 (242 SE2d 160) (1978). Accord Southern Guaranty Ins. Co. v. Cotton States Mut. Ins. Co., 176 Ga. App. 140, 144 (4) (335 SE2d 598) (1985).

However, “although the principal may be relieved of liability in tort, equity will not allow him to be relieved of responsibility for misrepresentations of the dual agent upon which the other principal relied to his detriment when the action is in contract. . . . The issue here is simply whether an insurer may clothe an agent with [actual or] apparent authority to enter into an insurance contract and then escape the usual effect of estoppel because the agent is also the agent of the insured party.” Home Materials v. Auto Owners Ins. Co., supra, 250 Ga. at 603. Thus, there remains the question of whether Canal may be held contractually liable to Harrison on the basis of Wright’s alleged misrepresentations regarding the extent of coverage, on the theory that it had clothed Wright with actual or apparent authority to contract with him on its behalf.

“Independent insurance agents or brokers are generally considered the agent of the insured, not the insurer.” European Bakers v. Holman, 177 Ga. App. 172, 173 (338 SE2d 702) (1985). There is no basis in the record before us for an inference that the situation was otherwise in the present case. Canal’s assistant vice-president for claims testified unequivocally that the independent brokers, including Wright, through which it sold its policies were not empowered to bind coverage, that “the company is the only one that can bind the coverage.” Consistent with that testimony, the record reflects that the coverage at issue in the present case did not become effective on the day that Wright mailed the application and premium payment to Canal but on the day Canal actually received the application and premium payment from him.

The only evidence offered by Harrison as support for a contrary finding — i.e., that Wright was authorized to enter into an insurance contract with him on Canal’s behalf — consists of the following testimony by Wright: “When I first called Canal, I represented Jack Harrison. But after I consummated permission with Canal to quote this insurance and bind it, then I may have been representing Canal then.” (Emphasis supplied.) Only if the existence of the alleged agency may otherwise be inferred from the circumstances, apparent relations and conduct of the parties surrounding the transaction may the declarations of the alleged agent be considered in establishing the agency. See Mullis v. Merit Fin. Co., 116 Ga. App. 582, 585 (158 SE2d 415) (1967); Akridge v. Atlanta Journal Co., 56 Ga. App. 812, 815 (194 SE 590) (1937). Thus, in the face of Canal’s unequivocal denial that Wright was empowered to act as its agent, and in the absence of any circumstantial evidence which could be said to conflict with this denial, we hold that Wright’s equivocal, speculative statement that he “may” have been acting as Canal’s agent is not sufficient to warrant an inference that he had actual authority to consummate the transaction — i.e., to bind the insurance company to coverage. Accord Booth v. Watson, 153 Ga. App. 672 (1), 674-5 (266 SE2d 326) (1980).

Similarly, there is no evidence in the present case from which it could be inferred that Canal, by course of dealing or otherwise, had cloaked Wright with the appearance of authority to bind coverage on its behalf. Harrison testified that he had never even heard of Canal until after the accident occurred and that up until then, he thought his coverage was with Wright or Wright’s firm, Allied Assurance Agency. Thus there is no evidentiary basis whatever upon which the company could be considered bound by Wright’s actions. We must accordingly conclude that Canal’s liability is limited as a matter of law by the terms of the policy which it issued, with the result that the trial court erred in denying Canal’s motion for directed verdict.

2. Harrison’s motion for imposition of damages against Canal for filing a frivolous appeal is, perforce, denied.

Judgment reversed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Carley, Sognier, Pope, and Benham, JJ., concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

I respectfully dissent.

The evidence is to be viewed most favorably toward Harrison, see Eddie Parker Interests v. Booth, 160 Ga. App. 15, 17 (285 SE2d 753) (1981).

1. Appellant claims that there was no evidence at trial that an agency relationship existed between it and Allied. It asserts that there was no evidence that its “conduct, representations, course of dealing, or knowledge of material facts” led Harrison to believe that such an agency relationship existed and that this, coupled with denial of agency by Canal and Allied, required a finding of no agency as a matter of law.

Contrary to appellant’s assertion, the evidence does not conclusively show a denial by Allied of the agency relationship with Canal. In fact, in his deposition introduced at trial, Wright stated, when questioned about whom he represented in the transaction: “When I first called Canal, I represented Jack Harrison. But after I consummated permission with Canal to quote this insurance and bind it, then I may have been representing Canal then.” Also, when he stated there was no “explicit authority” he went on to explain that “It is on a case by case basis. In other words, we have no blanket authority from Canal.” Thus, Wright did not unequivocally deny that he became the insurer’s agent during the course of the transaction with plaintiff Harrison.

Furthermore, there was evidence that Canal accepted the actions of Wright on its behalf in the dealings with Harrison. The insurer accepted the premiums, issued the policies bearing its name as the insurer, sent its chosen adjuster to investigate the claim, and authorized repair pursuant to the estimate.

It is true that “[independent insurance agents or brokers are generally considered the agent of the insured, not the insurer. [Cit.] [But] [i]n many cases, the nature of the relationship between the parties [is] a jury question. See, e.g., Wright Body Works v. Columbus &c. Ins. Agency, 233 Ga. 268 (210 SE2d 801) (1974); Stewart v. Boykin, 165 Ga. App. 868 (303 SE2d 50) (1983); Johnson v. Pennington Ins. Agency, 148 Ga. App. 147 (251 SE2d 116) (1978).” European Bakers v. Holman, 177 Ga. App. 172, 173 (2) (338 SE2d 702) (1985).

Even the bare assertion of the existence of an agency relationship is a statement of fact when made by one of the purported parties to the relationship. Salters v. Pugmire Lincoln-Mercury, 124 Ga. App. 414 (184 SE2d 56) (1971); accord Chrysler Credit Corp. v. Barnes, 126 Ga. App. 444, 453 (191 SE2d 121) (1972); Oglesby v. Farmers Mut., 128 Ga. App. 387, 389 (5) (196 SE2d 674) (1973); Stone v. First Nat. Bank, 159 Ga. App. 812, 814 (4) (285 SE2d 207) (1981). The assertion as well as the denial of agency by a party may not be disregarded by the trial court. Commercial Union Ins. v. Taylor, 169 Ga. App. 177, 180 (312 SE2d 177) (1983).

There was evidence that at a specific point in the transaction with Harrison, Canal gave Allied the authority. “ ‘An essential characteristic of an agent is his ability to bind his principal. [Cit.]’ General Warranty Corp. &c. v. Cameron-Hogan, Inc., 182 Ga. App. 434, 436 (356 SE2d 83) [1987].”

Inasmuch as there is some evidence of agency, the nature of the relationship between Allied and Canal became a question for the jury. European Bakers, supra.

The trial court properly refused to direct a verdict for the insurer on this issue, OCGA § 9-11-50 (a), and instead fully instructed the jury on the legal principles of agency applicable here.

2. Appellant contends that even if there was an agency relationship between itself and the broker, the policy did not provide coverage for the mishap because the policy contained exactly the same information, including particularly the geographical limitation, as the application signed by the insured.

The problem with appellant’s argument is twofold. Although the insurer maintained that the insurance application was filled in when it was sent to Harrison for his signature, including the one-hundred-mile limitation at issue, Harrison claimed that it was blank when he received it. While generally, “[i]f a writing is signed with blanks left to be filled in by the other party, the person signing is bound by it. [Cit.]” Butts v. Atlanta Fed. Savings &c. Assn., 152 Ga. App. 40, 42 (262 SE2d 230) (1979), the person is not bound if some type of fraud prevented him from reading the document. Haralson v. Pope Chevrolet, 180 Ga. App. 650, 653 (3) (350 SE2d 255) (1986). It was for the jury to determine whether Wright’s statements to Harrison regarding the coverage constituted misrepresentations, and if so, whether such misrepresentations induced Harrison “ ‘to pursue some course which he would not otherwise have pursued except for the fraud.’ ” Id.

In addition, the policies were not sent to Harrison until after the accident, so he had no notice prior to then of the restriction in the policies. If the jury determined that Harrison had given truthful answers to agent Wright’s questions about the scope of his business and his insurance requirements and that the agent mistakenly or fraudulently recorded the requirements on the application, Harrison would not be charged with knowledge of the policies’ contents. See O’Kelly v. Southland Life Ins. Co., 167 Ga. App. 455 (305 SE2d 873) (1983), which applies these principles to life insurance.

“ ‘ “In an action on a contract of insurance, the insurance company is generally considered estopped to deny liability on any matter arising out of the fraud, misconduct, or negligence of an agent of the company. If either party must suffer from an insurance agent’s mistake, it must be the insurance company, his principal. . . Id. at 457.

3. Appellant contends that a finding of bad faith could not be authorized by the evidence.

“ ‘In an action to recover penalties and attorney’s fees for the refusal of an insurer to pay a claim it must be shown that the refusal was in “bad faith,” [OCGA § 33-4-6 ...]..., and the burden is on the insured to show that such refusal was made in bad faith. [Cits.] “Bad faith” . . . means “any frivolous and unfounded refusal in law or in fact to comply with the demand of the policyholder to pay according to the terms of the policy.” [Cits] ....’” Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703 (1) (302 SE2d 605) (1983).

Construing the evidence described above in favor of the verdict, it supported a finding of misrepresentation on the part of the insurer’s agent, which led to the unfounded refusal to comply with Harrison’s demands for payment under his policy. “ ‘ “(T)he proper rule is that the judgment [for bad faith penalties and attorney’s fees] should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer.” ’ [Cit.]” Id. at 707 (1). Since the latter is not the case, the court did not err in denying a directed verdict to insurer on this issue.

Decided December 5, 1988 —

Rehearing denied December 20, 1988

Gray, Gilliland & Gold, John B. Austin, for appellant.

Nicholas E. Bakatsas, for appellee.


source: Caselaw Access Project

author: Carley, Judge. Sognier, Judge,

license: Public Domain

text:
    76858.
    CITY OF EATONTON v. FEW et al.
    (377 SE2d 504)
   Carley, Judge.

This is the second appearance of this wrongful death case before this court. In Few v. City of Eatonton, 179 Ga. App. 110 (345 SE2d 657) (1986), we reversed the grant of summary judgment in favor of appellant-defendant City of Eatonton. Thereafter, the case was tried before a jury and a verdict in favor of appellee-plaintiffs was returned. After judgment was entered on the jury’s verdict, appellant filed a motion for judgment notwithstanding the verdict or, in the alternative, for new trial. Appellant now appeals from the denial of its alternative motions and from the judgment which was entered by the trial court on the jury’s verdict in favor of appellees.

1. Appellant enumerates the general grounds, urging that there was insufficient evidence to authorize a finding of its liability for the death of appellees’ decedent under a nuisance theory.

In this very same case, we have previously dealt with the evidentiary requirements for proving the existence of an actionable nuisance and found that the evidence was sufficient to authorize a finding of appellant’s liability under a nuisance theory. Few v. City of Eatonton, supra. In Few, we held: “ ‘In City of Bowman v. Gunnells, 243 Ga. 809 (2) (256 SE2d 782) (1979), the Supreme Court set out three guidelines to define a nuisance for which a city may be held liable. First, the defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. Second, the act must be of some duration. Third, the city must have failed to act within a reasonable time after knowledge of the defect or dangerous condition.’ Rainey v. City of East Point, 173 Ga. App. 893, 894 (328 SE2d 567) [(1985)]. Applying these guidelines to the case sub judice we find evidence which would authorize a jury to conclude that the manner in which the pool was operated created a nuisance. The evidence stated most favorably to the non-moving party shows that the water in the pool was sufficiently cloudy or dirty that one could not see the bottom of the pool at the deep end (12 feet deep). This condition existed when the pool opened for the summer and continued through the time of the death of plaintiffs’ son in late June. The machine which would clean the water was broken and the city received repeated notice of that fact. An employee of the defendant City of Eatonton attempted to correct the problem without success. Also, while there was conflicting evidence as to the division of responsibilities in regard to the pool between the City of Eatonton and Putnam County, there is evidence which could authorize a conclusion that the city was responsible for the operation and maintenance of the pool.” Few v. City of Eatonton, supra at 111.

Only in a rare case will the evidence which is adduced during the pre-trial discovery process be mirrored exactly by the evidence which is adduced during the subsequent trial. However, insofar as sufficiency is concerned, a review of the evidence upon which the jury in this case returned its verdict shows that it is substantially the same as that which was in the record before this Court in Few. Appellant’s primary contention relates to the sufficiency of the evidence of its prior knowledge of the dirty or cloudy condition of the pool. While exactly the same deposition testimony of Coach Robert Woods, who was the pool manager, may not appear in the trial transcript, the following is in the trial transcript: Coach Woods was asked: “Do you have a recollection of how many times you attempted to contact or attempted to get Mr. [Edwin] Hodges [, appellant’s employee in charge of the municipal water system,] over to the pool before [the] death [of appellees’ decedent]?” Coach Woods responded: “Off the top of my head I would have to say about five times.” Immediately after this testimony concerning Coach Woods’ attempt to contact Mr. Hodges “about five times” the following questions and answers appear:

“Q: Did [Mr. Hodges] ever come over before [appellees’ decedent] drowned and work on the pool?
“A: Yes he did.
“Q: Did the problem go away?
“A: Well, it went away and it came back. It went away and it came back. It was that type of thing.
“Q: Do you know what the problem was [Mr. Hodges] was trying to fix?
“A: Well, I don’t know the anatomical words that you use. But I think it was to drain the dirty water out and to clear it out some kind of way. I’m not — I’m not really sure of the terminology that he used.”

Later during the examination of Coach Woods, he was asked:

“Q: Did Mr. Hodges, before [appellees’ decedent] drowned, ever get the thing straightened out to where the pool stayed clear for several days?
“A: There was one particular time I know of that he worked real, real hard on it because I had been complaining about the cloudiness, and he worked on it, and I guess — I guess when you add a lot of chlorine it’s called shocking the pool and I think that’s what he did, he shocked the pool. But, I guess it stays like that maybe one or two days and after that you saw the cloudiness coming back again.” (Emphasis supplied.)

In addition to the testimony of witnesses called by the appellees, one of appellant’s own witnesses was asked on cross-examination the following:

“Q: . . . After the pool opened, did Edwin Hodges run it or did Coach Woods?
“A: Edwin Hodges ran it.”

Finally, another of appellant’s witnesses, on cross-examination, stated that Mr. Hodges would stop by the pool occasionally and work in the pump room. The witness stated that Mr. Hodges would usually stay about 15 to 20 minutes. Most importantly, in response to the inquiry as to why Mr. Hodges was at the pool on those occasions, the witness stated: “Trying to clear the condition.”

Based upon the above portions of the record, we again “find evidence which would authorize a jury to conclude that the manner in which the pool was operated created [an actionable] nuisance. . . . The machine which would clean the water was broken and the city received repeated notice of that fact. An employee of the defendant City of Eatonton attempted to correct the problem without success.” Few v. City of Eatonton, supra at 111. As indicated, this Court in Few reversed the grant of summary judgment because a jury would be authorized to find the existence of an actionable nuisance. Now, the jury, having heard substantially the same evidence, has found just that. The jury verdict being supported by sufficient evidence, it was not reversible error to enter judgment thereon.

2. Contending that there was no evidence to authorize a finding that it operated and maintained the swimming pool as a “joint enterprise” with Putnam County, appellant moved for a directed verdict as to that issue. The trial court denied appellant’s motion and that ruling is enumerated as error.

“ ‘Broadly, there is a joint enterprise or adventure when two or more combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control, provided the arrangement does not establish a partnership.’ [Cit.]” Bowman v. Fuller, 84 Ga. App. 421, 425 (1) (66 SE2d 249) (1951). Appellant urges that, under the evidence, the elements of a profit motive and of mutual control are otherwise lacking in its agreement with Putnam County as to the operation and maintenance of the pool, preventing that agreement from being found to be a “joint enterprise.”

Notwithstanding appellant’s reliance upon certain appellate decisions which discuss “joint enterprise” as that concept is “broadly” defined, it is clear that a “joint enterprise” may nevertheless be found to exist even though a profit motive and mutual control are otherwise lacking. See Seckinger & Co. v. Foreman, 252 Ga. 540, 541 (1) (314 SE2d 891) (1984). The Constitution of this state specifically authorizes a county and a municipality to enter into joint agreements. The Constitution provides that they “may contract . . . with each other . . . for joint services, for the provision of services, or for the joint or separate use of facilities or equipment. ...” (Emphasis supplied.) Ga. Const, of 1983, Art. IX, Sec. Ill, Par. I (a). Pursuant to this constitutional provision, appellant and Putnam County, in effect, entered into a “joint enterprise” whereby the swimming pool would be operated and maintained for the mutual benefit of their citizens. The evidence shows that appellant retained both the ownership of its municipal swimming pool and the responsibility for the maintenance of the pool equipment and that Putnam County assumed responsibility for the actual day-to-day operation of the pool. Thus, by combining appellant’s property and the maintenance labor of its employees with the operation labor of Putnam County’s employees, a swimming pool was jointly maintained and operated for the residents of the city and the county. On this evidence, a finding was authorized that the swimming pool was a “joint enterprise,” regardless of the lack of a profit motive and notwithstanding the parties’ determination, as between themselves, how the control over the facility would be exercised. Cf. Seckinger & Co. v. Foreman, supra. It follows that the trial court did not err in failing to grant appellant a directed verdict as to the “joint enterprise” issue.

3. Appellant enumerates as error the trial court’s giving of several charges relating to the legal principles applicable to a “joint enterprise.” Appellant’s only contention is that the evidence did not authorize a finding of the existence of a “joint enterprise” and, therefore, the giving of any charge relating to that issue was not authorized. As discussed in Division 2, however, the evidence did authorize a finding that the maintenance and operation of the swimming pool was a “joint enterprise.” Accordingly, the charges were not erroneously given.

4. Appellant requested a charge which was to the effect that, under the doctrine of governmental immunity, liability could not be predicated upon its alleged negligence in the operation and maintenance of the swimming pool. The failure to give this charge is enumerated as error.

Appellant’s refused request is a correct statement of the law. See generally Robinson v. City of Decatur, 253 Ga. 779 (1) (325 SE2d 752) (1985), overruled on other grounds, Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301 (2) (357 SE2d 569) (1987). However, the record shows that the jury was otherwise instructed that appellant’s liability for the death of appellees’ decedent was dependent upon its operation and maintenance of the swimming pool as a nuisance, which required the showing of a “defect or degree of misfeasance . . . to such a degree as would exceed the concept of mere negligence.-. . .” (Emphasis supplied.) Thus, although the trial court did not employ the words of appellant’s refused request, it did instruct the jury that appellant’s liability was dependent upon a showing of more than the mere negligent maintenance and operation of the swimming pool. Under these circumstances, it was not reversible error to fail to give the request to charge. See generally Hutcheson v. City of Jesup, 132 Ga. App. 84, 87 (3) (207 SE2d 547) (1974).

5. Appellant enumerates as error the failure to give a requested charge on assumption of the risk.

“The doctrine of assumption of risk applies in tort cases when a person without coercion of circumstances, pursues a course of conduct with full knowledge of its danger thereby exercising a free choice as to whether to engage in the act or not. [Cits.]” Kitchens v. Winter Co. Bldrs., 161 Ga. App. 701, 702 (1) (289 SE2d 807) (1982). The evidence did not demand a finding that appellees’ decedent, by voluntarily leaving the clear shallow end of the swimming pool, assumed, as a perceived risk, the likelihood that he, as a poor swimmer, would not be rescued should he encounter difficulties in the cloudy deep end of the pool. The evidence was, however, sufficient to create a jury issue in this regard. “[Assumption of the risk of the circumstances existing when [appellees’ decedent] placed himself into the picture was arguably a factor. The jury was authorized to find that [,] by knowingly choosing to [venture into the cloudy deep end of the swimming pool, appellees’ decedent] unreasonably assumed the risk incident thereto, which would be a complete bar to recovery. Or it could have found that such action did not invoke a choice of an obviously perilous course of conduct with full appreciation of the danger involved. If the latter had been the jury’s finding, then there would be no basis for precluding recovery.” Newman v. Collins, 186 Ga. App. 595, 597 (1a) (367 SE2d 866) (1988). By refusing to give the request to charge, the trial court erroneously denied appellant the opportunity to have the jury consider assumption of the risk as a complete defense to its liability. Since this error was not harmless, the grant of a new trial is mandated.

6. The trial court’s failure to give a requested charge on the avoidance doctrine is enumerated as error. A review of the record shows, however, that the trial court did give an adequate instruction to the jury on the avoidance doctrine, albeit in language which did not employ the exact wording of appellant’s request. Accordingly, there was no error.

7. The trial court’s failure to give appellant’s requested charge on the definition of an actionable nuisance is enumerated as error. The record shows that this issue was likewise adequately covered in the charge as given.

8. The remaining enumeration of error need not be addressed as it is unlikely to recur at the retrial of the case.

Judgment reversed.

Been, P. J., McMurray, P. J., Pope, Ben-ham and Beasley, JJ., concur. Birdsong, C. J., Banke, P. J., and Sognier, J., dissent. .

Sognier, Judge,

dissenting.

I respectfully dissent. Although I agree with the majority that the trial court’s refusal to give appellant’s requested charge on assumption of the risk was erroneous, I would not reach that issue, as I cannot agree with the majority that the evidence presented at trial was sufficient to withstand appellant’s motions for a directed verdict as to the issues of nuisance and joint venture.

(a) Appellees asserted at trial that appellant was liable for their son’s death under the theory of nuisance because appellant had failed to correct a hazardous condition in the pool it maintained. Conflicting testimony exists in the record regarding the condition of the pool, specifically the appearance of the water in the pool. Both the pool manager, Robert Woods, and one lifeguard testified that it had been “cloudy” in appearance off and on since the pool opened, and a second lifeguard agreed with them that it was cloudy on the day in issue. However, none of the pool personnel thought the condition of the water posed any danger, or that the pool should be closed. The lifeguards testified that after the pool closed on that particular day, they both swam and could see the bottom clearly. Judy Franklin testified that she and her five-year-old daughter were frequent users of the pool, and she never thought the pool had a murky or cloudy appearance. Franklin testified that on that particular day, her daughter had been allowed by Coach Woods to swim while the pool personnel were cleaning the pool after the pool closed, and that during that time, she was watching her daughter dive. She was certain she could see the bottom.

Unlike the majority, I find substantial material evidentiary differences in the record before this court at the prior appearance of this case and at present. The record in the prior case contained depositions, including that of Woods. However, Woods testified at trial, and since his deposition was not introduced at trial it did not become part of the trial record. Maloy v. Dixon, 127 Ga. App. 151,153-154 (1) (193 SE2d 19) (1972). Of course, the record in the summary judgment appeal did not contain trial testimony. I have examined the depositions in the prior record and find that at his deposition, Woods testified that the city’s employee in charge of the water system “had showed me how to, well, clean out the dirty water, but that machine was broken and on many occasions I came by here to let him know that. You know, he came when he was here and when he wasn’t here, he didn’t come.” This court obviously relied on that testimony in finding that the city had “repeated notice” of a problem with the water in the pool. Such testimony, however, was not given by Woods in his testimony at trial, nor were the depositions introduced at trial. They are thus not a part of the instant record. Maloy, supra. Consequently, the record on this appeal does not contain the same indication that appellant had actual notice. (This discrepancy between the record on summary judgment and at trial did not escape the notice of the trial court, for when appellees opposed appellant’s motion for directed verdict on the issue of nuisance, counsel for appellees stated to the trial court that “[t]he facts as they went up to the Court of Appeals [in the appeal from grant of summary judgment to the city] are the identical facts that have been proved here today,” to which the trial court responded, “I don’t believe that’s true.”)

It is well established law that a municipality is not liable for negligence in the exercise of governmental functions. Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 838 (165 SE2d 141) (1968). The operation of recreational facilities is a governmental, rather than a ministerial, function. Brannan v. City of Brunswick, 49 Ga. App. 62, 68 (174 SE 186) (1934). However, “[a] municipal corporation, like any other individual or private corporation, may be liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or municipal function. [Cits.]” Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 426 (3) (g) (249 SE2d 224) (1978).

“Based on the holdings in Town of Ft. Oglethorpe v. Phillips, Mayor &c. of Savannah v. Palmerio, . . . and many other cases . . . the following guidelines appear [for deciding when a nuisance is established]: (1) The defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. (A single isolated act of negligence is not sufficient to show such a negligent trespass as would constitute a nuisance, [cit.]) (2) The act must be of some duration (two weeks in Ft. Oglethorpe, four hours held insufficient in [City of Atlanta v. Roberts, 133 Ga. App. 585 (211 SE2d 615) (1974)]) and the maintenance of the act or defect must be continuous or regularly repetitious (Palmerio and Roberts, supra). (3) Failure of the municipality to act within a reasonable time after knowledge of the defect or dangerous condition. (Ft. Oglethorpe, supra.)” (Emphasis supplied.) City of Bowman v. Gunnells, 243 Ga. 809, 811 (256 SE2d 782) (1979). Applying these guidelines to the facts of the case at bar, even assuming the first two requirements are present, I am unable to find in the record any evidence that appellant had actual knowledge or notice of a dangerous condition. Conceding that the county may be held to have had notice of the alleged cloudy water through its employees, the pool manager and lifeguards, no evidence at trial established that the existence of this condition was actually communicated by the county to anyone employed by or representing appellant city.

Woods, the pool manager, was asked at trial: “[d]o you have a recollection of how many times you attempted to contact or attempted to get Mr. [Edwin] Hodges [appellant’s employee in charge of the city water system] over to the pool before Roger’s death?” (Emphasis supplied.) To this question, he responded “[o]ff the top of my head I would have to say about five times.” However, other than before the pool opened, there is no indication in the record that Hodges was ever at the pool working on the equipment, that he was ever actually reached by Woods, or that he was called about a problem regarding water cloudiness. The lifeguard who is quoted by the majority as testifying that Hodges was there “[t]rying to clear the condition,” had admitted only moments before that she did not “know exactly what he was working on.” Hodges testified that he did not recall there being any problems with the system, and although he did recall Woods calling him back once, he testified that it was because the coach was out of the chemical reagents used for testing the pool. Hodges testified that he never failed to respond to any messages left by Woods, and that Woods never contacted him about the water being too cloudy or any other condition characterized as dangerous.

Since I find that the evidence of record does not support actual notice to appellant and notice or knowledge of the defect is one of the elements necessary to establishing the maintenance of a nuisance, see City of Bowman, supra, in my view a directed verdict in favor of appellant would have been proper on this issue unless the required knowledge by appellant was established constructively, through proof that appellant was engaged in a joint venture with the county, which clearly had notice. If it was, then notice to the county, its co-joint venturer, and its employees would also constitute notice to appellant under agency principles. See generally Boatman v. Geo. Hyman Constr. Co., 157 Ga. App. 120, 122-124 (276 SE2d 272) (1981). I turn, therefore, to the question of whether appellant’s motion for a directed verdict on the issue of the existence of a joint venture was properly denied.

(b) The record reveals that a group of citizens approached James P. Marshall, appellant’s mayor, in 1981 and requested that the public pool, which was owned by appellant but had been closed for some time, be reopened. Marshall testified at trial that he told the citizens’ group appellant was not in a financial position to operate the pool, but that as a result of their request a committee was appointed to approach the Putnam County commissioners about the matter. The committee subsequently reported that they had reached an agreement with the county, the exact terms of which were the subject of conflicting testimony at trial, particularly as to the division of responsibility between the county and appellant for maintenance of the pool. However, the minutes of the county commission for June 22, 1981 were introduced into evidence, and show, in pertinent part, the following: “We have an estimate of $1,500.00 to put the swimming pool in operating order. We respectfully request that the County assume this cost and the operation of the pool for the benefit of the people of the entire county who wish to pay the usage fee. The second proposal was that the City [appellant] will put the pool in operating Condition and asks that the County operate [it] thereafter. The City to maintain the grounds outside of the swimming pool area. The City to furnish water and chemicals to operate the pool. A1 Reaves, Director of [the County] Recreation Dept., was called in for discussion on the matter. A1 stated that to operate the pool at least three certified people would be needed — two at the pool and one in the bath house area. He also suggested that advertisement for the jobs should be placed in [the] paper. Employees for these jobs will be paid $4.00 per hour [by the county].” Although the minutes do not so reflect, it is uncontroverted that appellant’s offer to ready the pool was accepted and the plan went forward. The county commissioner’s minutes for June 23, 1982, which were also admitted into evidence, indicate (and Mayor Marshall so testified) that the plan was again adopted in the following year: “[t]he Board [of Commissioners] was advised that the swimming pool is being readied and will be operated by the [CountyJ Recreation Department. Director A1 Reaves was advised to obtain life guards for the operation of the pool.” (Emphasis supplied.) A small fee was charged to the users of the pool, and all such revenue was retained by Putnam County.

Traditionally, in speaking of the earmarks of a joint venture, it is said that “ ‘there is a joint enterprise or adventure when two or more combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control, provided the arrangement does not establish a partnership.’ [Cit.]” Bowman v. Fuller, 84 Ga. App. 421, 425 (1) (66 SE2d 249) (1951). Although there is no question that a municipal corporation such as appellant has the authority to enter into an arrangement with a county to provide recreational amenities for the citizens of both, OCGA § 36-34-3, it is problematic to me whether such an arrangement, in which the intangible benefit of the citizenry is substituted for the traditional profit motive, could be termed a “joint venture.” See generally City of Brunswick v. Taylor, 87 Ga. App. 751, 754 (75 SE2d 203) (1953). This is particularly true here, where all revenue from the undertaking was retained by the county. However, even assuming that such a joint venture by a governmental body is possible, it does not resolve the question of whether such a joint venture existed here, as the record before us does not establish the crucial element of “rights of mutual control.” “There must be not only a joint interest in the objects and purposes of the undertaking, but also a right, express or implied of each member of the joint venture to direct and control the conduct of the other. [Cits.]” Security Dev. &c. Co. v. Williamson, 112 Ga. App. 524, 525 (1) (145 SE2d 581) (1965). See also Time Fin. Svcs. v. Hewitt, 139 Ga. App. 270, 272 (2) (228 SE2d 176) (1976). In my opinion, Seckinger & Co. v. Foreman, 252 Ga. 540, 541 (1) (314 SE2d 891) (1984), relied on by the majority, is persuasive as authority for the proposition that a joint enterprise may be found despite the absence of a profit motive and mutual control, only in the most limited of circumstances such as were there found. In Seckinger, the Supreme Court (using the “any evidence” standard because Seckinger was a workers’ compensation case) found that a statement in the agreement itself providing that it was a joint venture agreement and should be deemed and construed as such, was sufficient to authorize a finding there of joint venture. Those narrow circumstances are not present here.

The question of whether or not the facts proved show a joint venture between the parties is generally a jury question. Bowman, supra at 426. However, a court may decide as a matter of law that no joint venture exists. See, e.g., Castleberry v. Gold Agency, 124 Ga. App. 694, 696 (1) (185 SE2d 557) (1971); Georgia-Pacific Corp. v. First Nat. Bank of Atlanta, 147 Ga. App. 292 (248 SE2d 554) (1978). In the case at bar, the minutes of the county commission clearly indicate that the pool would be “operated by” the county, thereby establishing the day-to-day operation and control of the pool as a county responsibility, rather than a joint one. The record is devoid of any indication that this control was mutual or joint. In my view there is, thus, no conflict in the evidence on the material issue of the terms of the agreement, regardless of any testimony from individuals purporting to give their “understanding” of the agreement. It follows that since the material element of right of joint control was missing, there was no joint enterprise, and I believe the trial court erred by denying appellant’s motion for a directed verdict as to this issue. See generally Citicorp Indus. Credit v. Rountree, 185 Ga. App. 417, 422 (1) (364 SE2d 65) (1987).

(c) Having determined that no joint venture existed, the crucial element of knowledge of a dangerous condition, necessary to showing appellant’s maintenance of a nuisance, may not be supplied constructively. Accordingly, I also conclude that the trial court erred by denying appellant’s motion for a directed verdict in its favor as to the issue of nuisance. See id.

Decided December 5, 1988 —

Rehearing denied December 20, 1988

Burnside, Wall & Daniel, James W. Ellison, for appellant.

Andrew M. Scherffius III, John P. Batson, for appellees.

I am authorized to state that Chief Judge Birdsong and Presiding Judge Banke join in this dissent.


text:
    76939.
    CHITWOOD et al. v. SOUTHERN GENERAL INSURANCE COMPANY.
    (377 SE2d 210)
   Carley, Judge.

While driving an automobile owned by her husband, appellant Harold Chitwood, appellant Mrs. Fern Chitwood was involved in a traffic incident with an uninsured motorist, Gregory Scott Kelly. Appellants filed suit against Kelly in Fulton County to recover for damages received in the incident and they secured a default judgment. Appellants then brought suit against appellee, as their uninsured motorist insurance carrier, for recovery of the amount of the judgment entered against Kelly. On cross-motions for summary judgment, the trial court denied appellants’ motion and granted appellee’s motion based upon its finding that “proper service was never obtained on the alleged uninsured motorist in the underlying action.”

1. The issue to be resolved is whether appellee can defend against appellants’ claim for uninsured motorist benefits by collaterally attacking their underlying judgment against the alleged uninsured motorist or whether appellee’s attack on appellants’ underlying judgment can only be made by the filing of a motion to set aside in the court of rendition. OCGA § 9-11-60 (a) provides that “[a] judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods prescribed in this Code section.” (Emphasis supplied.) Accordingly, unless appellants’ underlying judgment against the uninsured motorist was shown to be “void on its face,” OCGA § 9-11-60 (a) would statutorily preclude appellee from defending this action by advancement of a collateral attack upon the validity of that judgment. See generally Logan v. Nunnelly, 128 Ga. App. 43 (195 SE2d 659) (1973).

The return of service of the complaint in appellants’ action against the uninsured motorist clearly shows, on its face, compliance with OCGA § 9-11-4 (d) (7) “by leaving copies thereof at [the uninsured motorist’s] dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. . . .” See generally Adams v. C & S Nat. Bank, 132 Ga. App. 622, 623 (2) (208 SE2d 628) (1974). This “return of service in [the underlying] case constitutes a prima facie showing that personal service was accomplished on the [uninsured motorist].” Harvey v. Harvey, 147 Ga. App. 154 (1) (248 SE2d 214) (1978). Compare Barnes v. Continental Ins. Co., 231 Ga. 246 (201 SE2d 150) (1973); McGhee v. Kroger Co., 150 Ga. App. 291 (1) (257 SE2d 361) (1979). Accordingly, appellants’ underlying judgment against the uninsured motorist is not “void on its face” for insufficient service. “[T]he invalidity of ... a judgment does not appear on the face of the record where a proper entry of service, complete and regular on its face, is made on the original process filed in the office of the clerk. The establishment of its invalidity, therefore, becomes a question of fact. . . and until this is done, such a judgment is not void. . . .” Jennings v. Davis, 92 Ga. App. 265 (1b) (88 SE2d 544) (1955). Thus, in order to show the insufficiency of service of process and the consequent invalidity of the underlying judgment, appellee was necessarily required to rely upon evidence which was totally dehors the face of the record. Although appellee would be entitled to make such an evidentiary showing in the context of a direct proceeding brought for the express purpose of attacking the validity of the judgment, appellee could not, in the context of this action, rely upon such extraneous evidence as support for its collateral attack upon the judgment. OCGA § 9-11-60 (a).

The provisions of the Uninsured Motorist Act in no way alter this result. That Act requires that, as a condition precedent to initiation of a suit against the uninsured motorist carrier, the insured first pursues an action against the uninsured motorist to judgment. If that judgment is void on its face for insufficient service, it is subject to collateral attack by the uninsured motorist carrier. If, however, the underlying judgment shows on its fact that service was perfected, whether by personal service on the uninsured motorist or by authorized publication, it is not subject to collateral attack for insufficient service. The Uninsured Motorist Act is not an exception to the provisions of OCGA § 9-11-60. There is absolutely nothing within the terms of the Act to evince a legislative intent that a judgment, otherwise valid on its face, is not to be afforded the statutory protection against collateral attack simply because that judgment was obtained in an action against an uninsured motorist. Confining a review of the record to evidence which is admissible and probative shows that appellants filed suit against the uninsured motorist and obtained against him a default judgment which was not “void on its face” for insufficient service. Appellee was served with a copy of appellants’ complaint in that action and was authorized to file, in the name of the uninsured motorist, an answer which raised the insufficiency of service defense. Although appellee was certainly not required to file such an answer, it must abide by the legal consequences of its election not to do so. Included among those consequences is that appellee is statutorily precluded from relying upon insufficient service as the basis for its collateral attack upon the judgment. Accordingly, an unauthorized collateral attack upon appellants’ underlying judgment against the uninsured motorist could not provide the proper basis for a grant of summary judgment for appellee.

2. However, a judgment of the trial court will be affirmed if it is right for any reason. The evidence shows that, within several weeks of the collision, appellants accepted a sum of money from appellee with regard to property damage to the insured vehicle. In connection with this payment, appellant Harold Chitwood executed a loan receipt which contained the following provision: “In consideration of the making of the loan under the terms and conditions stated, [appellant Mr. Chitwood] hereby agrees with [appellee] that [he] will neither make any claims nor institute any proceeding at law or in equity against [appellee] for recovering therefrom with respect to the aforesaid loss or damage” to the insured vehicle. (Emphasis supplied.) Thus, in consideration of the payment of a stated sum, appellee obtained a covenant that it would not thereafter be sued “with respect” to property damage to the insured vehicle. A covenant not to sue “bars the holder of the cause of action from asserting it against the party or parties with whom he has covenanted. [Cit.] A covenant not to sue creates a personal right in the form of protection against suit. In essence, a covenant not to sue creates a defense to suit.” Brantley Co. v. Briscoe, 246 Ga. 310, 312 (1) (271 SE2d 356) (1980). By its terms, the covenant not to sue appellee “with respect” to the property damage to the insured vehicle extends to “any proceeding.” Thus, the covenant, if not otherwise shown to be unenforceable, would provide appellee with a viable defense to any subsequent suit brought “with respect” to such property damage, regardless of whether such suit was instituted pursuant to appellants’ collision coverage under the policy or pursuant to appellants’ uninsured motorist coverage thereunder. See generally James v. Tarpley, 209 Ga. 421, 423 (1) (73 SE2d 188) (1952). Compare Harden v. Clarke, 123 Ga. App. 142 (179 SE2d 667) (1971).

In opposition to this clear and unambiguous covenant not to sue, appellants offered only the bald assertion that, “at the time” the covenant had been executed, appellant Chitwood “was advised by [appellee’s] representative that [he] would be allowed to supplemental payments for later and other discovered damages.” “ ‘Where parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to, take from, or vary the written instrument.’ [Cit.] ‘Even assuming . . . [appellee’s representative] . . . misrepresented the purpose or extent of the [covenant not to sue], the record in this case does not disclose any artifice, trick, or fraud perpetrated upon appellant [s] to prevent. . . [them] . . . from reading [it]. [Cits.]’ [Cits.]” Yeager v. Poole Truck Lines, 162 Ga. App. 803 (2) (293 SE2d 64) (1982). “[T]he only fraud which would relieve a party from an obligation which he has signed, where that party can read and write and is not otherwise under any disability, is that fraud which prevents him from reading what he signed. [Cits.]” Wall v. Fed. Land. Bank of Columbia, 156 Ga. App. 368, 372 (2) (274 SE2d 753) (1980). Accordingly, appellants’ parol evidence regarding the alleged misrepresentations of appellee’s agent would not be admissible and probative of fraud and, thus, would not create a genuine issue of material fact as to the enforceability of the covenant not to sue.

Parol evidence “is admissible to demonstrate that both parties to a release were honestly mistaken as to the legal effect of the instrument, and may establish a question of fact over the scope of the release which is most appropriate for jury resolution. [Cit.]” (Emphasis supplied.) Robertson v. Henderson Chem. Co., 171 Ga. App. 722, 724 (3) (320 SE2d 835) (1984). See also Fulghum v. Kelly, 255 Ga. 652 (340 SE2d 589) (1986); Vann v. Williams, 165 Ga. App. 457 (299 SE2d 908)' (1983). The evidence shows, however, that appellee, after engaging in negotiations as to its contractual liability for property damage to the vehicle, obtained a clear and unambiguous covenant that it would not be sued “with respect” to that single element of damage. Under the circumstances in which it was obtained and by its express terms, the covenant not to sue cannot be construed as having any legal effect other than to provide appellee with a personal defense to any subsequent suit brought by appellants to recover for such property damage. Compare Fulghum v. Kelly, supra (general release obtained after negotiations with only one joint tortfeasor); Roberson v. Henderson Chem. Co., supra (general release obtained after negotiations only as to property damage); Vann v. Williams, supra (general release obtained after negotiations only as to property damage). Since the covenant not to sue could only have that legal effect, its execution could not signify the parties’ intent that it have any other legal consequence. The parties either intended that the covenant not to sue would provide appellee with a defense to a subsequent suit for property damage, or its execution had no legal effect whatsoever. Compare Fulghum v. Kelly, supra (parties, although intending to contract, possibly mistaken as to unintended legal effect that execution of general release would have upon joint tortfeasors not parties thereto); Roberson v. Henderson Chem. Co., supra (parties, although intending to contract, possibly mistaken as to unintended legal effect that execution of general release, after negotiations only as to property damage, would have upon right to sue for personal injuries); Vann v. Williams, supra (parties, although intending to contract, possibly mistaken as to unintended legal effect that execution of general release, after negotiations only as to property damage, would have upon right to sue for personal injuries). Thus, appellants do not seek a reformation of the covenant not to sue so as to avoid a mutually unintended legal consequence of its execution. Instead, appellants urge a total cancellation of the covenant so as to avoid their unilateral mistake in relying upon an alleged misrepresentation as to its intended legal effect. Compare Fulghum v. Kelly, supra (reformation of general release into covenant not to sue sought); Roberson v. Henderson Chem. Co., supra (reformation of general release into release only as to property damage sought); Vann v. Williams, supra (reformation of general release into release only as to property damage sought). However, the parol evidence rule will not allow a total evasion of the legal consequences of executing a document by one who merely alleges that the legal effect of his execution of that document was misrepresented to him. “Where one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or Confidential relation, he can not defend an action based on it, or have it canceled or reformed, on the ground that it does not contain the contract actually made, unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it. [Cits.]” (Emphasis supplied.) Morrison v. Roberts, 195 Ga. 45 (1) (23 SE2d 164) (1942).

The evidence shows that appellee paid a sum of money for property damage to the vehicle and received, in return, a covenant that it would not be sued “with respect” to such property damage. Although appellants allege that the legal effect of this covenant was misrepresented by appellee’s agent, no legal excuse for relying upon his misrepresentation was adduced and there was no fiduciary or confidential relation between appellee and appellants. See Walsh v. Campbell, 130 Ga. App. 194 (202 SE2d 657) (1973). Under these circumstances, no genuine issue of material fact remains as to the enforceability of the covenant not to sue. The trial court correctly granted summary judgment in favor of appellee based upon the accord and satisfaction defense and, therefore, correctly denied appellants’ motion for summary judgment.

Judgment affirmed.

McMurray, P. J., Pope, Benham, and Beasley, JJ., concur. Birdsong, C. J., Deen, P. J., Banke, P. J., and Sognier, J., concur specially.

Sognier, Judge,

concurring specially.

I concur specially with the majority because, in contrast with the majority’s holding in Division 1, I find that the trial court correctly granted judgment in Southern General’s favor on the basis that proper service was never obtained on the uninsured motorist, Gregory Scott Kelly, in the underlying action.

The record reveals that in their suit against Kelly, the Chitwoods had a copy of the action served on Southern General pursuant to OCGA § 33-7-11 (e) and sought to serve Kelly on July 30, 1986, by having the marshal leave a copy thereof with a woman at Kelly’s notorious place of abode. At the time service was notoriously made, the Chitwoods’ attorney wrote a letter to Southern General informing it that there were problems with the service on Kelly, noting that the woman on whom service was made had stated that Kelly had been gone over a year. The record contains an affidavit submitted by Southern General from the woman residing at the address named in the return of service, in which she stated that Kelly had not lived there since June 1985, and that to the best of her knowledge, Kelly had lived outside of Georgia since June 1985 and never received any of the legal papers left for him at her address. Although the letter to Southern General shows that the Chitwoods knew service on Kelly was inadequate, the Chitwoods did not initiate service by publication on Kelly as set forth in OCGA § 33-7-11 (e). Southern General filed no answer in that suit either on behalf of Kelly or on its own behalf. The suit against Kelly subsequently went into default; the Chitwoods then instituted the instant suit against Southern General.

The Uninsured Motorist Act, OCGA § 33-7-11, provides that all policies issued or delivered in this state must contain a provision rendering the insurer liable to pay the insured “all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.” OCGA § 33-7-11 (a) (1). This language created a “condition precedent” requiring an insured, before instituting suit against his uninsured motorist carrier, to first sue and recover a judgment against the uninsured motorist tortfeasor. Wallis v. Cotton States Mut. Ins. Co., 182 Ga. App. 147, 148 (354 SE2d 842) (1987); Norman v. Daniels, 142 Ga. App. 456, 459-460 (2) (a) (236 SE2d 121) (1977). As the language in the Uninsured Motorist Act indicates, the Act is primarily directed to situations where the uninsured motorist tortfeasor is unknown or, as is the case here, where the tortfeasor is known but cannot be located because he resides out of the state, has departed the state, cannot be found within the state, or has wilfully concealed himself to avoid service. OCGA § 33-7-11 (e). Despite the unavailability of the known tortfeasor, the insured cannot proceed directly against the insurer but instead, in order to pursue his claim against his own insurer, must obtain a nominal judgment either by a John Doe proceeding or by means of service by publication, so as to fulfill the statutory condition precedent. As the courts have acknowledged and indeed stressed in the service by publication cases, such a judgment provides absolutely no foundation for an in personam judgment against the tortfeasor: the sole purpose of the “judgment” is to fulfill the condition precedent in OCGA § 33-7-11. Wentworth v. Fireman’s Fund &c. Co., 147 Ga. App. 854, 855 (I) (250 SE2d 543) (1978); Norman, supra at 460 (2) (b and c).

In this case, the Chitwoods do not assert that they obtained a valid in personam judgment against Kelly. Nor do the Chitwoods claim they followed OCGA § 33-7-11 (e) and obtained a “judgment” by means of service by publication before they instituted suit against Southern General. Their appeal is based on the argument that Southern General waived all objections to the validity of the personal service on Kelly, an argument I find meritless, as addressed below. In turn, Southern General does not challenge Kelly’s tort liability nor does it seek to set aside the earlier judgment. Rather, Southern General claims it is not liable under the policy to the Chitwoods because they uncontrovertedly failed to satisfy the requirements 'of OCGA § 33-7-11. The propriety of the personal service on Kelly and the absence of service by publication were not raised in order to attack the underlying judgment, but to show that the condition precedent to Southern General’s liability “to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle,” OCGA § 33-7-11 (a) (1), had not been met. Southern General has not collaterally attacked the Chitwoods’ judgment against Kelly: It has merely demonstrated the absence of any questions of fact that the Chitwoods did not follow the procedure necessary under OCGA § 33-7-11 to obtain the type of “judgment” required as a condition precedent to suit against Southern General. Thus, the question whether the underlying judgment could be collaterally attacked is not relevant: the only issue here is whether the Chitwoods complied with the Uninsured Motorist Act.

The majority holds that because the judgment against Kelly was not void on its face, Southern General will have to return to the court rendering the judgment, OCGA § 9-11-60 (b), and move to have it set aside pursuant to OCGA § 9-11-60 (d), because the Uninsured Motorist Act “is not an exception to the provisions of OCGA § 9-11-60.” This reasoning misses the mark. It would be untenable to suggest that had the Chitwoods obtained a judgment against Kelly by means of service by publication, Southern General could have avoided its liability as the Chitwoods’ uninsured motorist carrier by attacking the underlying judgment for its lack of in personam jurisdiction by a motion pursuant to OCGA § 9-11-60, even though the courts have repeatedly stressed such a “judgment” is not valid, Wentworth and Norman, supra, and OCGA § 9-11-60 authorizes attacks on such judgments. The reason why such a suggestion is untenable is that, notwithstanding the apparent “exception” to OCGA § 9-11-60 created by OCGA § 33-7-11 (e), the validity of the underlying judgment is not an issue: only the judgment’s status as the qualifying “condition precedent” is in issue, so that the judgment’s defects are irrelevant in the sole context of an action under OCGA § 33-7-11. Thus, OCGA § 33-7-11 (e) is not an “exception” to OCGA § 9-11-60: despite the fact that a collateral attack on a judgment happens to share several characteristics in common with an uninsured motorist carrier’s procedural defense based on the insufficiency of an insured’s compliance with OCGA § 33-7-11, the purposes for which the two statutes were enacted simply do not overlap here. Since the General Assembly has statutorily rejected a collateral attack by an uninsured motorist carrier on a judgment obtained in compliance with OCGA § 33-7-11, so that an insurer cannot use OCGA § 9-11-60 to attack a judicially-acknowledged invalid judgment because it qualifies as a “condition precedent” under OCGA § 33-7-11, it follows that the insurer should not be required to question a judgment’s uncontroverted failure to qualify as a “condition precedent” under OCGA § 33-7-11 solely by means of OCGA § 9-11-60.

The majority asserts that because Southern General elected not to file an answer in the Chitwoods’ suit against Kelly, it must abide by the legal consequences of its decision. I cannot agree with this any more than I can agree with the Chitwoods’ argument that because Southern General knew personal service as to Kelly was inadequate but failed to raise that issue in the suit against Kelly, Southern General waived its objections and could not defensively assert that issue in the case sub judice to avoid liability under the contract of insurance between the parties. OCGA § 33-7-11 (e) “accords to the insurer issuing a policy providing uninsured motorist coverage to the plaintiff . . . the right at its election to participate” directly or indirectly in the insured’s suit against the uninsured motorist. Home Indem. Co. v. Thomas, 122 Ga. App. 641 (178 SE2d 297) (1970). Although once an insurer elects to participate in the suit, its actions are governed by the applicable rules of practice and procedure, id., an insurer is not required to participate but may elect not to participate in the proceedings and not be a party defendant. See Fisher v. Womack, 128 Ga. App. 62, 63 (1) (195 SE2d 753) (1973); see generally Hartford Acc. &c. Co. v. Studebaker, 139 Ga. App. 386, 387 (1) (228 SE2d 322) (1976). Regardless of what the result of such nonaction on the insurer’s right to contest the tort liability of the uninsured motorist or to assert its own defenses, see generally Public Nat. Ins. Co. v. Wheat, 100 Ga. App. 695, 701 (5) (112 SE2d 194) (1959); United States Fid. &c. Co. v. Bishop, 121 Ga. App. 75, 77 (172 SE2d 855) (1970), it is clear that responsibility for jurisdictional, procedural and other errors in the underlying suit does not rest on a non-party insurer. It follows that where a party, insurer or otherwise, is not involved in a suit, not obligated to answer the suit, and not required to respond to errors made therein, it cannot waive such errors as are made.

In the case sub judice, while Southern General had the right to participate and raise the jurisdictional issue if it so chose, see State Farm Mut. &c. Ins. Co. v. Glover, 113 Ga. App. 815, 820 (149 SE2d 852) (1966), the record is uncontroverted that Southern General chose not to exercise that right and did not participate, either directly or indirectly, in the Chitwoods’ suit against Kelly. Therefore, since Southern General had no obligation to answer the suit, the adequacy or inadequacy of service on Kelly was not a matter with which the insurer had to concern itself until the moment when its insureds, the Chitwoods, instituted suit against it based on the judgment in the Kelly suit. Thus, in answer to the Chitwoods’ argument, Southern General did not waive objection to the lack of service on Kelly in the underlying suit. As to the majority’s assertion that Southern General’s decision not to participate in the underlying suit means it must “abide by the legal consequences of its election,” i.e., must now return to the court rendering that judgment and have it set aside pursuant to OCGA § 9-11-60 (d), Southern General was informed by letter regarding a suit in which it had little interest, that its insureds had experienced problems obtaining in personam jurisdiction over the uninsured motorist tortfeasor. There was no reason for Southern General to believe its insureds would not follow in this commonplace situation the standard practice of seeking an order for service by publication under subsection (e). To require Southern General to return to the court rendering the underlying judgment to correct a mistake made by the Chitwoods in a suit in which Southern General had no involvement and where the Chitwoods had a specific statutory method for handling just such a matter, which they chose to ignore, would in essence penalize the insurer for the incompetence of its insureds.

Therefore, Southern General having established by uncontroverted and unobjected to affidavits that the Chitwoods did not obtain any type of “judgment” required under OCGA § 33-7-11 (e) in order to subject Southern General to liability under the policy, I would affirm the trial court’s order. Accordingly, I do not consider it necessary to reach the release issue addressed in Division 2 of the majority’s opinion.

Decided December 5, 1988 —

Rehearing denied December 20, 1988

William R. Hurst, for appellants.

Warner S. Fox, for appellee.

I am authorized to state that Chief Judge Birdsong, Presiding Judge Deen, and Presiding Judge Banke join in this special concurrence.