Ditch v. Royal Indemnity Co.

Pope, Judge.

Plaintiff/appellant Michael T. Ditch filed a complaint for personal injury arising out of an automobile collision. Plaintiff alleged the collision was caused by the negligence of the driver of a tractor trailer truck and plaintiff named as defendants the common carrier trucking company for whom the driver worked and the company’s insurer. Having learned that the defendant’s driver claimed the collision was caused by a phantom vehicle, plaintiff also named as a defendant John Doe and served the complaint upon his uninsured motorist insurer. The complaint alleged that the collision was caused either by the negligence of the truck driver, the negligence of John Doe or the combined negligence of both. Instead of simply making both claims, however, in apparent anticipation of the truck driver’s defense that the collision was caused by John Doe, the plaintiff made an unnecessary statement expressly denying the existence of John Doe. The complaint contained the following assertion: “Plaintiff denies that an unknown or uninsured motorist caused or contributed to the cause of said collision but, prophylactically, has nonetheless brought this claim against defendant John Doe so that in the event there should be a finding that John Doe caused or contributed to the cause of the collision, plaintiff’s right of recovery against John Doe will have been preserved.” The trial court granted summary judgment to John Doe and plaintiff’s uninsured motorist insurer on both plaintiff’s complaint and the cross-claim of the other defendants. Plaintiff appeals.

This court has previously ruled that the plaintiff in an automobile collision case may plead alternatively that the collision was caused by the negligence of a known defendant and a John Doe defendant. Smith v. Doe, 189 Ga. App. 264 (375 SE2d 477) (1988). The holding in Smith, however, does not save plaintiff’s claim against John Doe in the case now before us because instead of merely pleading alternatively that a known and an unknown defendant caused the collision, the plaintiff expressly denied the collision was caused by the acts of defendant John Doe. An allegation made by a plaintiff in the complaint is an admission which “cannot be disputed” by the plain*479tiff. Reynolds v. Estate of Reynolds, 238 Ga. 1, 4 (230 SE2d 842) (1976) . Where, as here, the admission contained in the pleading was never withdrawn, plaintiff was bound by the admission. See Strozier v. Simmons U. S. A. Corp., 192 Ga. App. 601, 603 (385 SE2d 677) (1989); Greene v. Gulf Oil Corp., 119 Ga. App. 87 (2) (166 SE2d 626) (1969).

The Civil Practice Act which permits alternative pleadings (OCGA § 9-11-8 (e)) does not change the rule of evidence that a party is bound by its judicial admissions (OCGA § 24-3-30). “The CPA did not wipe out or destroy the law in Georgia to the effect that a party to an action is bound by material allegations made in his pleadings . . . .” Martin v. Pierce, 140 Ga. App. 897, 898-899 (232 SE2d 170) (1977) . The plaintiff here could easily have pleaded that both the known and unknown defendants were liable for his injuries without making the unnecessary admission denying the existence of John Doe. As Professor Green warned in Ga. Law of Evidence, § 238 (2d ed. 1982), a party should beware of the evidentiary effect of alternative pleadings.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., and Andrews, J., concur. Carley, P. J., Beasley, Cooper and Johnson, JJ., dissent.