Opinion
45095.
ARGUED FEBRUARY 3, 1970.
DECIDED MARCH 6, 1970.
Action on insurance policy. Fulton Civil Court. Before Judge Tidwell.
Walter W. Calhoun, for appellant.
Smalley Cogburn, Robert H. Smalley, Jr., for appellee.
1. Settlement of an action for personal injuries and for property damage to an automobile effectively terminated plaintiff's claim for the automobile damage. This rule is not changed by reason of the fact that plaintiff may have carried collision insurance coverage on his automobile with the same company that carried liability coverage on the defendant's vehicle.
2. (a) Affirmative defenses not pleaded are, as a general rule, waived. However, these may be raised in motions to strike or to dismiss or for summary judgment as well as by special pleas or in the answer, and if evidence sufficient to sustain the defense is admitted without objection as to lack of pleading and no surprise is claimed, there is a waiver of defendant's failure to plead it.
(b) An issue not raised in or passed on by the trial court cannot be raised for the first time on appeal.
ARGUED FEBRUARY 3, 1970 — DECIDED MARCH 6, 1970.
A collision occurred between the automobiles of J. C. Phillips and J. B. Humphrey, both of whom carried liability insurance policies with State Farm Mutual Automobile Insurance Company. Phillips had collision coverage included in his policy.
Phillips brought suit against Humphrey to recover for personal injuries which he received in the collision and for damage to his automobile. His wife brought suit for loss of consortium. The two suits were settled and Mr. and Mrs. Phillips executed releases to "John Bruce Humphrey, his heirs, executors, administrators, agents and assigns, and all other persons, firms, or corporations liable or who might be claimed to be liable . . . from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 7th day of April, 1968" on North Druid Hills Road — this being the collision above mentioned.
A stipulation of dismissal was signed by counsel for the plaintiffs and counsel for the defendant and filed in the court as a part of the record as follows: "All issues raised by the pleadings in the above stated matter having been fully and finally settled by and between the parties herein, and the defendant having been released of all liability, it is hereby stipulated by and between the parties, acting through their counsel of record, that said case be dismissed with prejudice and the Clerk of the Superior Court of Coweta County, Georgia, is hereby notified, authorized and directed to mark the same settled and dismissed with prejudice on his records upon payment of all costs of court by the defendant." The costs were paid and the dismissal was entered. As to the effect of the dismissal see Universal Credit Co. v. Service Fire Ins. Co., 69 Ga. App. 357 ( 25 S.E.2d 526). As to the release see Pennsylvania Cas. Co. v. Thompson, 130 Ga. 766 ( 61 S.E. 829); Southern Bell T. T. Co. v. Smith, 129 Ga. 558 ( 59 S.E. 215).
Thereafter Phillips made claim against State Farm under his policy for certain medical payments and for the collision loss on his automobile. State Farm recognized the claim for medical payments and offered to pay it, but denied the claim for the collision loss, asserting that Phillips had already received payment for this item, had settled his claim therefor and that he was not entitled to a double payment on it. Phillips sued for the two items and for attorneys' fees, alleging bad faith. State Farm paid into court the amount of the claim for medical payments and defendant as to the collision loss.
State Farm moved for summary judgment, relying on the release and the stipulation of dismissal, and Phillips moved for summary judgment on the matter of liability. After hearing, the court sustained the motion of State Farm and denied the motion of Phillips, and Phillips appeals.
1. In his suit against Humphrey, Phillips claimed damages for specified personal injuries which he had received in the collision and which he alleged to have been occasioned by Humphrey's negligence. He also alleged in his petition that "As a result of being struck by the automobile of the defendant, the plaintiff's automobile, a 1964 Oldsmobile sedan, was a total loss, the same having a fair market value before the collision of $1,015 and a fair market value thereafter of only $200," and further that "plaintiff brings this action against the defendant for personal injuries, pain and suffering, loss of consortium and services of his wife, loss of an automobile, and such expenses as may be incurred. . ."
It was entirely proper for plaintiff to include in his suit his claim for personal injuries, his claims for loss of his wife's services, etc. and his claim for damage to his automobile. Indeed, if he had proceeded without including his personal property damage he would have been deemed to have waived it. Ga. R. c. Co. v. Endsley, 167 Ga. 439 ( 145 S.E. 851, 62 ALR 256); Gregory v. Schnurstein, 212 Ga. 497 ( 93 S.E.2d 680); House v. Benton, 42 Ga. App. 97 ( 155 S.E. 47); Universal Credit Co. v. Service Fire Ins. Co., 69 Ga. App. 357, supra; Giles v. Smith, 80 Ga. App. 540 ( 56 S.E.2d 860); Kelly v. McCoy, 85 Ga. App. 514 ( 69 S.E.2d 652); Krasner v. O'Dell, 89 Ga. App. 718 ( 80 S.E.2d 852); Bennett v. Dove, 93 Ga. App. 57 ( 90 S.E.2d 601); Coleman v. State Farm Mut. Auto Ins. Co., 104 Ga. App. 328 ( 121 S.E.2d 833).
The defendant may waive the requirement that plaintiff include all elements of his damage, or may, by special agreement, settle some and leave the others outstanding to be adjusted by legal proceedings, or otherwise. James v. Emmco Ins. Co., 71 Ga. App. 196, 200 ( 30 S.E.2d 361).
Consequently, it must follow that when plaintiff effected the settlement, signed the release and the stipulation for dismissal and caused his suit to be dismissed, his claim for the damage to his automobile, having been included in the action, was fully satisfied and terminated, and, as was declared in Donaldson v. Carmichael, 102 Ga. 40, 42 ( 29 S.E. 135) "there can be no double recovery of the amount of damage which one has sustained." This was the basis for the holding in Universal Credit Co. v. Service Fire Ins. Co., 69 Ga. App. 357, supra, which we think is controlling here.
That State Farm has tendered and paid into court the amount of the medical expenses which plaintiff claims under other provisions of his policy does not alter the matter. Cf. Wrightsman v. Hardware Dealers Mut. Fire Ins. Co., 113 Ga. App. 306 ( 147 S.E.2d 860). The tender or payment into court simply eliminated these items as an issue.
Nor does it matter that State Farm happened to be the insurer of both plaintiff and defendant. That did not affect its right of subrogation to plaintiff's claim for the damage to his automobile if settlement for the damage were made under his collision coverage; and if that right has been destroyed, as it was by the settlement, State Farm is no longer obligated to pay under the collision coverage. It is immaterial, too, that if the collision claim had been settled prior to the settlement of the suit, subrogating State Farm to plaintiff's right against Humphrey, and State Farm had thereafter attempted to enforce the right against Humphrey it might have been obligated, under Humphrey liability policy, to pay the claim so that it would, in effect, have been collecting from itself. It might have been advantageous for it to do that for accounting purposes.
The case of Allstate Ins. Co. v. Austin, 120 Ga. App. 430 ( 170 S.E.2d 840), relied upon by appellant, in no way affects our holding here, nor does it require a different holding.
2. (a) While State Farm did not file a plea of accord and satisfaction as might have been done and as is generally required under Code Ann. § 81A-108 (c) by the filing of a special plea setting that up as an affirmative defense, it did raise the issue in its written motion to strike, and it was raised by the evidence presented in connection with the motion for summary judgment. Our rule in this respect is the same as that under Federal Rule 8 (c), concerning which Professor Moore asserts: "Rule 8 (c) might seem to imply that affirmative defenses may be raised only by a pleading (where one is required or permitted) and not otherwise. This, however, is too narrow a construction of the rule. A defendant may move for summary judgment under Rule 56 where `there is no genuine issue as to any material fact' and he `is entitled to a judgment as a matter of law'; and it is clear that summary judgment is proper where the defendant shows the existence of an affirmative defense even though he has filed no answer. Under the 1946 amendment to Rule 12 (b), it is also made clear that a defendant may raise an affirmative defense by a motion to dismiss for failure to state a claim; and that the court may treat such a motion as a motion for summary judgment. . . By analogizing the motion to a motion for summary judgment, however, the amended Rule 12 (b) clearly permits affirmative defenses to be raised by motion." 2A Moore's Federal Practice (2d Ed.), p. 1863, § 8.28. Accord: Butcher v. United Electric Coal Co., 174 F.2d 1003, 1005.
See Code Ann. § 81A-156.
See Code Ann. § 81A-112 (b).
The purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense. If it is not pleaded it is generally held that the defense is waived, but if it is raised by motion, or by special plea in connection with the answer or by motion for summary judgment there is no waiver. Systems, Inc. v. Bridge Electronics Co., 335 F.2d 465; Lindsay v. Collins, 96 F. Supp. 994. Moreover, "failure to plead an affirmative defense is immaterial if evidence of the defense is introduced and not objected to for failure to plead it, and no surprise is claimed." American Cas. Co. v. Morris, 51 F. Supp. 889, 896, affirmed in 146 F.2d 208; Tillman v. National City Bank of N. Y., 118 F.2d 631.
Here the defense was sufficiently set out in defendant's motion to strike, and uncontradicted evidence which would sustain the defense either on the basis of accord and satisfaction or on the basis of a destruction of defendant's right of subrogation was admitted without objection as to a lack of pleading.
(b) The lack of pleading, if such there was, was not raised in the trial court and that issue is not properly before us. "[T]he question was not submitted to the trial court, was not passed upon by that court, . . . and thus under the law of this State cannot be considered by this court." N.A.A.C.P. v. Overstreet, 221 Ga. 16, 30 ( 142 S.E.2d 816); Kohl v. Manning, 223 Ga. 755 ( 158 S.E.2d 375).
The defendant's motion for summary judgment was properly granted and that of the plaintiff was properly denied.
Judgments affirmed. Jordan, P. J., and Pannell, J., concur.