THE VERDICT

A publication of GAPTA, Inc.

(Georgia Association of Plaintiffs' Trial Attorneys)

Vol. 11 No.2

PRESIDENT'S COLUMN

Our Editor plans to continue to publish THE VERDICT monthly, and this will afford me the opportunity of keeping in contact with you through this column.

I am pleased to report to you that Robert M. Heard, Past President of the Georgia Bar Association, is now a member of our organization.

DETERMINING VALUE OF A PERSONAL INJURY CASE­

How much is my case worth in settlement? How much shall I sue for? Shall I pick a figure out of the air? NEVER ... NEVER ... pick a figure out of the air because there is no way to effectively argue your damages to the jury unless the amount can be sub­stantiated. It is possible, and much more feasible, to mathemati­cally calculate the amount to sue for. First, determine your special damages - medical expenses, loss of wages, automobile and other property damages. Then consider pain and suffering, even if you do not have a permanent injury. We know that insurance companies place a good part of the settle­ment of tile case on pain and suffering, for they use a rule of thumb that the settlement value of a case is three times the special damages, i.e., if you have $3,000.00 special damages, your case is worth $9,000.00. But how do I mathematically calcu­late pain and suffering? Use the element of time. How long did your client suffer? How many days? How many hours? Was the pain more severe at first? All you need do is ask yourself, "Would I have gone through that for $5.00 per hour for the first two weeks and $1.00 per hour for six months?" By doing this you can cal­culate the value of your case and the amount to sue for. You can most effec­tively argue your damages to the jury by use of the blackboard. One fine trial lawyer that I know calls the above damages past damages, they have already occurred they are out­-of-pocket damages. And then he says, "Gentlemen of the Jury, how about the future?"

In my next column I will discuss damages in a case where there is permanent injury or death.

MEDICINE

I am informed that the Insurance Claims Associations in the larger cities of Georgia are now paying doctors to lecture to them at their dinner meetings on such subjects as anatomy, injuries to back and nervous system, etc.

The Law School at Emory Univer­sity has conducted two short evening courses instructed by local doctors for practicing attorneys on medical terms, anatomy, and injuries to muscles, head and back. Our firm attended these courses and felt that they were excellent as far as they went.

A personal injury lawyer must understand enough about medicine to examine his own doctor and the defendant's doctor. There are cer­tain "medical truths" which the defendant's doctor must admit on cross-examination.

It may be wise and fruitful for us as plaintiffs' attorneys to sponsor a medical seminar with two days packed full of medical lec­tures by leading doctors in Georgia who are specialists in their fields.

Yours for a greater GAPTA,

CULLEN M. WARD, President

­

STAFF

Editor.William W. Daniel­

Associate Editor.. Ross Arnold

RECENT GEORGIA CASES OF INTEREST

EXPLOSION CAUSED BY CONSTRUCTION COMPANY TURNING OVER GAS-HEATED TABLE TO PLAINTIFF'S EMPLOYER IN DEFECTIVE CONDITION. The end of the gas line which was below table had not been plugged. The trial court sustained a general demur­rer. Held, reversed in part. Hand v. Harrison, 99 Ga. App. 429 (1959). Petition filed in two counts. (I) The first count stated a cause of action for the reason that the instrumentality released by the defendant was so negligently defective as to be imminently dangerous to third persons. {2} The plaintiff may not recover on a count predicated on the contractual obligation existing between his employer and the contractor as to the type of workmanship to be performed and warranties against defects in workmanship. Therefore, the second count was subject to general demurrer. See Code Section 105-106. {3}The duty to prevent third persons from being injured by one's negligence is the duty to exercise ordinary care "in not releasing upon the public a defective mechanism which the actor knows or must reasonably anticipate will be dangerous if defective. The amount {....of care varies with the instrumentality dealt with; where it is inherently dangerous more care is necessary in regard to it than where it is, accord­ing to common experience, a thing relatively harmless even when defectively constructed or negligently used. Therefore, what amounts to the exercise of ordinary care under all the circumstances is a question for the jury."

SEQUWSTRATION OF WITNESS -Remova1 of a witness from the court room is mandatory in all cases upon timely request by any party, end refusal of the trial judge to grant the request requires a new trial; however, no new trial will be granted in such cir­cumstances unless there is an objection to the presence of the witness or to the testimony of the witness. Smith v. State, 215 Ga. 51, 53 (1959). The disregard of sequestration rule sub­jects witness to punishment for contempt but does not as matter of law render his testimony incompetent. Scoggins v. State, 98 Ga. App. 360,

363 (3) {l958}. .

ACTION FOR WRONGFUL DEATH JOINED WITH AN ACTION TO SET ASIDE A FRAUDULENT CONVEYANCE . Downs v. Powell, 215 Ga. 64 (1959). A mother whose minor

child had been killed by the negli­gence of another may proceed in one action against the tortfeasor and the grantee of a voluntary deed and obtain a judgment for damages against the tortfeasor and a decree adjudging null and void the conveyance of real and personal property excused by the tortfeasor subsequent to the___________________ the tort.

WAIVER OF PROOF OF LOSS - Insured had fire insurance on boat and motor. Property burned. Insurance company was notified promptly. Insured absconded owing plaintiff, a finance company. Plaintiff sued out attachment, and summons was served on insurance company. Held, verdict and judgment for plaintiff affirmed. American Casualty Co. v. Holloway Loan & Finance Co., 99 Ga. App. 471 (1959). Since the insurance company had actual knowledge of loss and attempted to salvage and have boat repaired, the jury could find that this was a waiver of proof of loss. An absolute refusal to pay waives a compliance with regulations prescribed by the insurer as to notice and preliminary proof of loss. 58-831. Also, if an insurer admits or declares its liability to pay a claim after loss, this con­stitutes a waiver of requirements of the policy as to notice and proofs of loss.

EVIDENCE - DEATH CERTIFICATE - NOT PRIMA FACIE EVIDENCE OF FACTS STATED UNLESS CODE 88-1116 IS STRICTLY COM­PLIED WITH. Aetna Casualty & Surety Co. v. Pulliam, 99 Ga. App. 406 (1959). Where there is an attending physician he must sign certificate; signature by another physician is not a com­pliance with Code Section, and, therefore, the certificate is not prima facie evidence of its contents.

AGAINST INSURANCE COS. - OMNIBUS­ CLAUSE COVERAGE - WHETHER INSURED GUILTY OF BREACH OF COOPERATION CLAUSE - RETRACTION BEFORE TRIAL OF STATEMENT PREVIOUSLY MADE THAT IN­SURED DID NOT PERMIT HIS SON TO DRIVE FATHER'S TRUCK - MISREPRESEN­TATIONS OF INSURED INEFFECTUAL UNLESS THEY PREJUDICE RIGHTS OF INSURANCE COS. - BEFORE TRIAL, INSURED CORRECT­ED & WITHDREW PRIOR MISSTATEMENT, HELD, NO VIOLATION OF COOPERATION CLAUSE. Nat'l Union Fire Ins. Co. v. Carmical, 107 S.E. 2d 700 (Ga. App. 1959) (held, aff'ming judgment for policy holder, misstatements by insured promptly & seasonably cor­rected or withdrawn prior to trial, do not constitute a violation or breach of cooperation clause of auto liability policy) (accord: Standard Accid. Ins. Co. v. Wingert, 197 F.2d 97 (9th Cir. 1952), 34 A.L.R. 250.

(Above case from the July NACCA NEWS LETTER)

FOREIGN CASES OF INTEREST FFROM RECENT NACCA NEWS LETTERS

D.C. Circuit

Against Contractors - Landlord & Tenant - Tenant's wife paralyzed when iron handrail repaired by defendant contractor in 1942, gave way in 1949, causing her to fall off steps into areaway - held error to direct verdict for contractor - For Jury to say whether contractor's omission to level step, seal seam at base of newel post nd close hole in upper collar facilitated moisture getting to anchor rod causing it to hasten metals in repair job, mild steel & cast iron, which in combination when joined by water created galvanic reaction - hence, excessive rusting. Hanna v. Fletcher, 261 F. 2d 75 (D.C. Cir. 1958) (famous case, 1 st noted, 18 NACCA Law Journal 273-287, now wending its agonized way through courts).

California

Against Manufacturers - Against Garagemen - Negligent manufacture, us, or installation of defective brake hose - brake failure & loss of control of car after traveling only 70 miles after installation - RES IPSA Loquitur Held Applicable. Dunn v. Vogel Chevrolet Co., 333 P. 2d 793 (Cal. App. 1958) (where plaintiff took his car to garage when brakes failed & mechanic installed new brake hose & after traveling only 70 miles after installation, while driving down hill, brakes failed and car went out of control, off a curve at bottom of hill & into a gully & it was found that threads on both male & female ends of the hose were stripped, held, reversing judgment of nonsuit in favor of garage and brake mfgr. & judgment on jury verdict in favor of garage, doctrine of res ipsa loquitur was applicable).

Michigan

Evidence - Admissability of police accident report - in pedestrian's action against taxicab Co., trial court sustained plaintiff's objection to police report offered by defendant - when officer allowed to use report for refreshing recollection & plaintiff cross-examined him on certain portions of report, trial court then permitted defendants to put in entire police report, containing hearsay, conclusions & information as to which officer lacked personal knowledge - held, prejudicial error to admit the entire police report containing inadmissible statements & conclusions. Derrick v. Blazers, 93 N.W. 2d 909 (Mich. 1959) (succinct opinion by Edwards, J. - court is patently correct in holding that plaintiff did not by his cross-examination render entire report admissible).