THE VERDICT

A publication of GAPTA, Inc. (Georgia Association of Plaintiffs' Trial Attorneys)

Vol. 1. No.1

PRESIDENT'S COLUMN

July. 1959

First. I would like to thank you for the honor which you have bestowed upon me by electing me your President for the current year of 1959-60. With the help of my fellow officers and our Editor, I hope to serve you well.

We are deeply indebted to our past President. Hugh G. Head, Jr., for an admirable record of service in behalf of GAPTA. Through his efforts our organization was incorporated, and it received respect and recogni­tion by virtue of his continuing edu­cation program as evidenced by his attending various medical-legal seminars throughout the United States. Under his leadership last year GAPTA held an excellent seminar in Atlanta, featuring Melvin M. Belli of the California Bar. Mr. Belli, who is nationally recognized as the "King of Torts," is the most prolific writer in the personal injury field. His three volumes entitled "Modern Trials" contain numerous Georgia citations which have assisted plain­tiffs' lawyers throughout Georgia in all types of tort cases. While in Atlanta Mr. Belli also gave a lecture at Emory University Law School.

Tony Alaimo of the Brunswick Bar is also due a debt of gratitude for his excellent work as the first Editor of THE VERDICT. This publication requires a great deal of hard work and cooperation on the part of all members. We regret that no issues were published last year but look for­ward to regular editions in the future.

I urge all GAPTA members to furnish our new Editor, William W. Daniel, 925 Grant Building, Atlanta, Georgia, information on all cases in which large verdicts are obtained as well as those involving unique principles of law. Our Editor now receives a secretarial expense allowance of $50.00 a month to take, care of the paper work involved in publishing THE VERDICT.

An application for GAPTA membership is printed on the last page of this issue of THE VERDICT. To be qualified for membership, an attorney must be engaged primarily in representing injured plain­tiffs. This does not necessarily mean that his practice must be limited entirely to this type of litigation. It is recog­nized that in many of the smaller cities of Georgia the same attorney may be active in both plaintiffs' and defend­ants' work, and such lawyers, on request, will be considered for membership.

Two types of GAPTA membership are available. Regular membership requires the payment of $5.00 per year dues. Sus­taining memberships are available at $25.00 per year, and sustaining members receive an attractive and impressive certificate appropriate for framing.

Last year your Legislative Committee prepared twenty bills, seven of which were introduced in the State Legislature. Two of them passed, and the Committee has favorably reported all except one. The pending bills will be carried over to the coming session of the General Assembly, and your Legislative Committee will again seek the enactment of these bills.

At our last annual meeting in Savannah, your President appointed a Seminar Com­mittee with the hope that a seminar may be held this fall at a time and place to be designated by the Committee. I know that the Committee will have some of the 1eading trial lawyers of the United States present to deliver lectures and answer pertinent questions. We will also have outstanding doctors of the Southeast to assist us with the medical aspect of our legal problems.

I will apprec1iate any suggestions which you may be ab1e to make for improving GAPTA and making it of greater benefit to our members.

Yours for a greater GAPTA,

CULLEN M. WARD, President

Newly elected GAPTA officers are-­

President: Cullen M. Ward, Atlanta

Vice Presidents: A. A. Nathan, Brunswick

Earnest MacDonald, Dalton

Gerald Kunes, Tifton

Paul Jones, Dublin

Beverley Irwin, Atlanta

Treasurer: Alford Wall, Atlanta

Secretary-Editor: William W. Daniel, Atlanta

Associate Editor: Ross Arnold, Atlanta

The following members have been appointed as a Seminar Committee:

Osgood Williams, Atlanta

Reuben A. Garland, Atlanta

Ernest MacDonald, Dalton

Paul Jones, Dublin

A. A. Nathan, Brunswick

RECENT GEORGIA CASES OF INTEREST

AGAINST POWER COS.- TV ANTENNA- ­ELECTROCUTION CASE - BOY ELECTROCUTED WHEN TV AERIAL HE WAS HELPING TO MOVE CAME IN CONTACT WITH UNINSULATED HIGH VOLTAGE WIRE MAINTAINED 12' ABOVE MOTHER'S LAND - SUFFICIENCY OF PETITION - ADMISSIBILITY OF NATIONAL ELECTRIC SAFETY CODE ON NEGLIGENCE ISSUE.

Planters Electric Membership Corp. v. Burke, 98 Ga. App. 380 (1958), 105 S.E. 2f

787 (court upheld sufficiency or petition which alleged that "defendant negligently strung wires charged with high electric voltage in an uninsulated state, at a height in a location where persons igno­rant of the danger involved would prob­ably come in contact with them and be injured;" however, the court ordered stricken an allegation that the lines were maintained at a height lower than that specified by the National Safety Code) (Court stated that to permit pleading of & admitting code in evidence "would pre­clude the exercise of the valuable right of cross-examination of the witnesses who compiled the code" (at 794)) (see Brillheart v. Edison Light & Powerr Co., 82 A.2d 44 (pa. 1951), electrocution from contact of well-pump pipe with high voltage wire - Code inadmissible by defendant) (on TV antenna-electric shock injuries, see Kingsport Utilities, Inc. v. Lamson, 257 F. 2d 553 (6th Cir. 1958)).

AUTO ACCIDENTS - ILLEGALLY PARKED ICE CREAM TRUCK SELLING ICE CREAM TO CHILDREN - 5-YR. OLD CHILD ON CURB STRUCK BY ONE ­OF 2 CARS BEING RACED 70 M.P.H., SIDE-BY-SIDE THROUGH THE STREETS - HELD, REVERSING DISMISSAL OF PLAINTIFF'S PETITION, SAID PETITION STATED CAUSE OF ACTION AGAINST ALL 3 DEFENDANTS - ALL THOSE WHO RACE CARS ON PUBLIC STREET DO SO AT THEIR PERIL, ARE JOINTLY & SEVERALLY LIABLE, REGARDLESS OF WHICH OF THE RACING CARS ACTUALLY INFLICTS THE INJURY. Landers v. French Ice Cream Co., 98 Ga. App. 317 (1958), 106 S. E. 2d 325 (Court relies on Oppenheimer v. Linkous' Adm'x, 159 Va. 250,165 S.E. 385). Note: a verdict in the child's case of $21,000 was obtained on trial.

HOSPITALS - NEGLIGENCE - FAILURE TO RESTRAIN OR PROTECT PATIENT - MENTALLY DERANGED CARDIAC PATIENT JUMPED OR FELL OUT OF WINDOW. Emory University v. Lee, 97 Ga. App. 680 (1958), 104 S.E. 2d 234 (where hospital employees negligently failed to replace sideboard temporarily taken down to give patient injection & also failed to persuade or physically restrain plaintiff who left his room & wandered down hall, & either fell or jumped from window, held, aff'ming judgment for patient, hospital was liable for deranged cardiac patient's resulting injuries) (N.B., while expert disagreed as to whether physical restraint should have been used on a cardiac patient, they all agreed efforts should have been made to persuade plaintiff to go back to his room).

AGAINST BEAUTY SHOP PROPRIETORS - ­NEGLIGENT APPLCATION OF COLD WAVE TO PATROH'S HAIR - ERROR TO NONSUIT PLAIN­TIFF. Patterson v. Carpenter, 98 Ga. App. 889 (1959), 107 S.E. 2d 245 (jury could properly find that chemical cold wave solution had been left on plain­tiff's hair & scalp an unreasonable length of time).

AUTO ACCIDENTS - JOINT ENTERPRISE - IMPUTED CONTRIBUTORY NEGLIGENCE ­PASSENGER-OWNER V. NEGLIGENT DRIVER OF OWNER'S CAR & DRIVER OF 2D CAR ­EXISTENCE OF JOINT ENTERPRISE NO BAR TO PASSENGER - OWNER' S ACTION AGAINST DRIVER OF HIS CAR. Morris v. Cochran, 98 Ga..App. 786 (1958), lO6 S.E. 2d 836 (action by owner-passenger against driver of owner's car & driver of other car for harm suffered by plaintiff as result of improper braking by former & improper passing by latter: held, reversing judgment sustaining demurrers of each defendant. (1) Complaint stated cause of action against both defendants; (2) "even assuming owner & his driver were engaged in a joint enterprise, driver's negligence would not bar owner's recovery from his driver) (valuable reminder that the vicarious liability designed to pro­tect 3d persons against the risk of a joint enterprise does not extend to the parties themselves - after all, a negligent servant is liable to his master).

The above notes with slight changes, were taken from the May and June 1959, NACCA News Letters.

CHARGE TO JURY- IT IS NEGLIGENCE PER SE TO VIOLATE CODE SECTIONS 68-1626 (a) - THE FACT THAT A STATUTE IS TOO VAGUE AND INDEFINITE TO BE ENFORCED DOES NOT PREVENT ITS VIOLATION FROM BEING NEGLI­GENCE PER SE. Teague v. Keith, 214 Ga. 853 (1959). Violation of Code Section 68-1626 (a) and (c) Ga. Ann. Code held to be negligence per se even though the statute provides a general rule of con­duct which only amounts to the duty to exercise ordinary care. Notice that while the present case did not cite the case of Cobb v. Coleman, 94 Ga. App. 86, it, in effect, reversed much of the objectionable dicta of that case.

TIME TO AMEND - GENERAL DEMURRER OVERRULED IN TRIAL COURT - APPELLATE COURT REVERSES. Kiser v. Kiser, 214 Ga. 849 (1959). In such a situation the losing party may amend his petition only after the remit­titur from the appellate court has been filed in the trial court and before the remittitur is made the judgment of the lower court.

CODE SECTION 68-301 ANN. CODE HELD UNCON­STITUTIONAL. Frankel v. Cone, 214 Ga.

733 (1959). Ga. Laws 1955, 454, 455, incorporated in the Annotated Code as Sec. 68-301. has been held to violate the due process clause of both the Federal and State Constitutions "for the reason that it makes the owner of a motor vehicle liable if the vehicle is being used in the prosecution of the business or for the benefit of such owner, even though operated without notice to her or without her knowledge and without her consent." The court also held that it was immaterial that in the particular case the car was being driven with the know­ledge and consent of the owner.

COURT HAS NO JURISDICTION IN SUIT AGAINST JOINT TORTFEASORS LIVING IN DIFFERENT COUNTIES WHEN THE JURY FINDS RESIDENT DEFENDANT NOT LIABLE. Southeastern Truck Lines, Inc. v. Rann. 214 Ga. 813 (1959). "Where a single suit is brought against several joint tortfeasors in a county where one of them is a resident and where the others reside outside of the county, and where on the trial of the case, the resident defendant is found not liable by the jury, and the non­resident defendants are found liable, the court is without jurisdiction to enter a judgment against the non-resident defend­ants.

PLEADING - SPECIAL DEMURRER CALLING FOR EVIDENCE. Petition filed against insurance company for injury to child. Petition stated: "That at the time of the accident mentioned in Paragraph 7 of this petition, the petitioner was traveling from his school to his residence, within the terms of said insurance policy, and said accident occurred less than one hour after peti­tioner was dismissed from school." Defendant demurred specially "for the reason that the same constitutes a con­clusion in that it is not alleged . . . the direction of petitioners home from the school or the direction from the school to the place where any alleged accident occurred." Trial judge sustained. Plaintiff amended showing that he was injured 2 miles north of school and that he lived 3 miles south of school . A general demurrer was then renewed and sustained. The Court of Appeals was divided equally. The Supreme Court, on exception to the judgment sustaining the special demur­rer, reversed the trial court for the reason that ultimate facts need not, and should not, be set forth in pleadings. The ultimate fact to be proved was that the child was travel­ing" from school to his residence." Where the school was and where the plaintiff lived are matters of evi­dence. The court also pointed out that the plaintiff could attack the order even though he attempted to amend to meet it. Tanner V. National Casualty Co., 214 Ga. 606 (1959).

FELLOW SERVANT RULE - DEATH OF PERSON IN TRUCK CAUSED BY NEGLIGENCE OF DRIVER - NEGLIGENCE OF OWNER IN PERMITTING DRIVER TO DRIVE FOR OVER 10 CONSECUTIVE HOURS IN ­VIOLATION OF CODE SEC. 68-522. Roberts v. Bowman Transportation, Inc. 99 Ga. App. 61. Held, (1) deceased, who was making the trip as a prospective junior driver who was never permitted to drive or hired by the defendant, was not a servant of the defendant & the fellow servant rule does not apply; (2) since the driver had driven over 10 consecutive hours and this was charged as negligence per se of the defendant truck owner, a recovery could have been had even if deceased had been an employee. On the first point compare Buchsbaum T. Sadler, 4O Ga. App. 709, 151 S.E. 566, but see Smith v. Western & Atlantic R. Co., 134 Ga. 216 (1). 67 S.E. 818.

VERDICTS AND SETTLEMENTS OF NOTE

Death action arising out of Villa Rica tragedy - $63,000 verdict obtained in Coweta Superior Court. Dyar v. Southern Gas Co.

Settlement of $102,500 in bus-truck disaster. '­Truck driver almost rendered a paraplegic. John Spradlin v. Southeastern Greyhound Lines.

Personal Injury action for common whip-lash injury - No brace or operation - Repair bill on car $127 - $16,500 verdict obtained in Fulton Superior Court. Barbara Stallings v. Irvindale Farms Dairy.