Quattlebaum v. Allstate Insurance Company

119 Ga. App. 791 (1969) 168 S.E.2d 596

QUATTLEBAUM, by Next Friend
v.
ALLSTATE INSURANCE COMPANY.

44454.

Court of Appeals of Georgia.

Argued May 5, 1969. Decided May 16, 1969. Rehearing Denied June 13, 1969.

Calhoun & Kernaghan, Herbert Kernaghan, William C. Calhoun, for appellant.

Allgood & Childs, Thomas F. Allgood, for appellee.

FELTON, Chief Judge.

1. A condition precedent to an action against an insurer to recover benefits under uninsured motorists coverage, pursuant to Ga. L. 1963, p. 588; as amended, Ga. L. 1968, pp. 1415, 1416 (Code Ann. § 56-407.1), is the bringing of an action and the recovery of judgment against the known uninsured motorist. Gulf Amer. Fire &c. Co. v. McNeal, 115 Ga. App. 286, 292 (154 SE2d 411) and cit.

2. A motorist whose identity is known does not become an "unknown" motorist under the above statute merely because his whereabouts is unknown.

3. "Where there is no service at all there is no suit." Toole v. Davenport & Smith, 63 Ga. 160 (2).

4. Accordingly, where there was no service of process in the plaintiff's action against the known, allegedly uninsured, motorist, the verdict and judgment in favor of the plaintiff therein were null and void and the condition precedent to the plaintiff insured's present action against the insurer does not exist; therefore, the court did not err in its judgment granting a summary judgment in favor of the defendant insurer.

Judgment affirmed. Pannell and Quillian, JJ., concur.