THE VERDICT

A publication of GAPTA, Inc.

(Georgia Association of Plaintiffs' Trial Attorneys)

Vol. 1, Nos. 5 and 6

EDITOR'S NOTE

You will notice that herein we have combined the November and December issues of THE VERDICT.

Our able President, Cullen M. Ward, was unable to write his help­ful column for this issue because of the death of a close friend and client.

I would like to call the reader's attention particularly to the article of our Associate Editor, Ross Arnold, on the GAPTA Brief Bank. This fund of informa­tion is a great asset to our mem­bers, for from it members may obtain briefs on a variety of matters for the nominal cost of reproducing the briefs.

GAPTA extends its wishes to each of you for a Merry Christmas and a Happy and Prosperous New Year.

Yours for a greater GAPTA,

WILLIAM W. DANIEL Secretary-Editor

STAFF OF THE VERDICT

Editor . . . . . William W. Daniel

Associate Editor . . . Ross Arnold

P. O. Address:

925 Grant Building

Atlanta 3, Georgia

BRIEF BANK

Members of GAPTA will remember that in THE VERDICT of two issues ago an announcement was made of the forma­tion of a Brief Bank for GAPTA mem­bers. All members were requested to send copies of available briefs to the Bank, so that such briefs would be available to all other members for a nominal photocopying charge. This should save members a tremendous amount of time in the preparation of their future briefs.

Upon receipt of this issue of THE VERDICT, will YOU please stop long enough to pull-out of your files any briefs which should be interesting and useful to other GAPTA members through the Brief Bank and forward such briefs to the Brief Bank, c/o Ross Arnold, Arnold & Harris, 904 Grant Building, Atlanta, Georgia.

You will recall also that in the event you need a brief on a particu­lar point, please get in touch with Ross at the Brief Bank to see if he has one available. If so, you are welcome to have a copy for the nomi­nal photocopying charge plus furnish­ing a brief of your own to the bank.

RECENT GEORGIA CASES OF INTEREST

SUIT BY ULTIMATE CONSUMER AGAINST A MANUFACTURER FOR BREACH OF IMPLILED WARRANTY UNDER PROVISIONS OF GA. LAWS OF 1957, PAGE 405 (ANN. CODE SEC. 96­307). Bookhalt v. General Motors Corp., 215 Ga. 391 (1959). Held, Act constitutional. An action for breach of an implied warranty is not action ex contractu. The Court pointed-out that no privity was necessary and that other states have reached the same result with­out the aid of such a statute. (Citing Continental Copper & Steel v. Cornelius (Fla.) 104So.2d 40). Note: If your Editor understands Bookhalt case correctly, it is now possible in many cases for the ultimate consumer to sue a manufac­turer in two counts: one based on negligence under the rule of Macpherson v. Buick Motor Co., 217 N.Y. 382, III N.E. 1050 (1916), cf. Simmons Co. v. Hardin, 75 Ga. APP:" 420; and the second based on breach of' an implied warranty: (liability without fault or liability regard­less of the negligence of the de­fendant). Prior to the Bookhalt case, many Georgia lawyers regarded a warranty as contractual and, therefore, felt that in State court an election must be made to sue either in Warranty or in negligence (tort). This seems to no longer be necessary, if it ever was. Cf. Rogers v. Toni Home Permanent Co., (Ohio, 1958) 147 N.E. 2d 612. For an exhaustive treatment of the sub­ject, see Patterson, Manufacturer's Statutory Warranty Tort or Con­tract?, 10 Mercer L. R. 272-321 (1959). In most states actions for breach of warranty are controlled by statute of limitations for torts rather than the contract statute, Ann. 37 A.L.R. 2d 703.

GA. UNIFORMBUSINESS RECORDS ACT, ANN. CODE SEC. 38-711 (GA. LAWS OF

1952, PAGE 177) DOES NOT MAKE WRITTEN OPINION, IMPRESSIONS, AND DIAGNOSES OF PHYSICIANS ADMISSIBLE EVIDENCE WHERE SUCH DOCUMENTS ARE CONTAINED IN A HOSPITAL RECORD. THE RESOLUTION OF THE GENERAL ASSEMBLY (GA. LAWS 1958, PAGE '542­544) DECLARING THE LEGISLATIVE INTENT IN PASSING THE BUSINESS RECORD ACT IS VOID AS AN ATTEMT BY THE LEGISLATURE TO PERFORM A JUDICIAL FUNCTION. Martin v. Baldwin, 215 Ga. 293 (1959). "(b) Letters purporting to be signed by named persons as doctors, found in the file kept by the Veterans' Administration on the testator, a veteran, were not a memorandum or record of any act, transaction, occurrence, or event made in the regular course of business by the Veterans' Administration within contemplation of Code (Ann. I 38-711. (c) Records of a Veterans' Administration hospital and a Veterans Administration office, made in the regular course of the business of the hospital or office, which contain opinion evidence, conclusions, impres­sions, matter of conjecture, diag­noses of physicians or other parties, are not admissible in evidence under Code (Ann.) I 38-711, since they are not the contemporaneous records of events, acts, transactions, or occur­rences as required by the act, but are opinions or conclusions which may or may not be based upon facts, and lack that reliability of records which exist in the routine recording of facts in regular business books or other records. (d) Photostatic copies of an Army dis­charge and Army clinical records, pro­duced from a Veterans' Administration file, are not admissible in evidence - under- Code (Ann.) r 38-9-11 a s record made in the regular course of business of the Veterans' Administration, as they are obviously records of the War Depart­ment or the Defense Department, but are not offered as such with necessary proof that they are records of that department made in the regular course of its business. 3. The court proper­ly excluded from evidence an incor­rect, typed copy of microfilms which were in evidence. 4. A record or writing is not admissible under Code (Ann.) I 38-711 without the testimony of a witness whose evidence shows that the writing or record offered is a memorandum or record of an act, transaction, occurrence, or event made in the regular course of the business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter.

I T IS NEGL IGENCE PER SE FOR ANY PERSON TO DRIVE, OR KNOWINGLY-PERMIT T O BE ­DRIVEN, ANY VEHICLE WHICH IS UNSAFE TO THE EXTENT THAT ANY PERSON MIGHT BE INJURED. Beck v. Wade, 100 Ga. App. 79 (1959). In this case the rear door of the car was defective in that the device which held the door open was sprung so that door slammed on the passenger's finger fracturing it. The taxi driver had warned her of the defective door, but he did not offer to help and she had arms full of books. The negligence of the passenger was a jury question.

RECENT CASES INVOLVING PER DIEM AND BLACKBOARDTREATMENT OF PAIN AND SUFFERING-­

Note: Older cases on this subject are summarized in 60 A.L.R. 2d 1347.

DAMAGES - PER-DIEM MEASUREMENT OF DAMAGES FOR PAIN & SUFFERING UPHELD- BLACKBOARD - USE OF PLACARD ITEM­IZING ELEMENTS OF DAMAGES DURING PLATNTIFF'S SUMMATION HELD NOT ERROR - COLLISION BETWEEN AIRPLANE TAKING OFF & ONE LANDING -$198,339 AWARD FOR ARM DISABLEMENT WHERE PLAINTIFF'S OTHER ARM HAD PREVIOUSLY BEEN DISABLED - REJECTION OF BOTTA V. BRUNNER, 138 A. 2d 713 (N.J. 1958) - VERY IMPORTANT CASE, AFF'MING

TRIAL CT'S PERMITTING PLAINTIFF'S COUNSEL TO SUGGEST A PER-DIEM AMOUNT TO JURY FOR PA IN & SUFFERING. Ratner v. Arrington, 111 So. 2d 82 (Fla. App. 1959) (the convinc­ing answer to the flawed holding in Botta case, which foreclosed mention of amount sued for in ad damnum clause & prohibited plaintiff's counsel from urging per-diem assessment of damages in final argument re pain & suffering).

DAMAGES - BOTTA V. BRUNNER REJE CTE D - PER-DIEM ASSESSMENT OF DAMAGES FOR PAIN & SUFFERING MAKES MORE SENSE THAN THE "BY GUESS AND BY GOLLY" METHOD, HELD, AFF'D - IMPORTANT DECISION ON DAMAGES, UPHOLDING PER­DIEM MEASUREMENT OF PAIN & SUFFERING. Continental Bus System, Inc. v. Toombs, 325 S .V. 2d 153 (Tex Civ. App. 1959) (in his well-reasoned opinion, Massey, C.J., relied upon Fabrizi v. Griffin, 162 F. Supp. 276 (W.D. Pa. 1958), aff'd, 261 F. 2d 594, (3d Cir. 1958)).

DAMAGES - BOTTA V. BRUNNER ADOPTED ­VA. SUPREME COURT HOLDS THAT PERMIT­TING PLAINTIFF'S COUNSEL TO USE PER DIEM MATHEMATICAL FORMULA ON BLACK­BOARD FOR ASSESSMENT 0F DAMAGES FOR PAIN & SUFFERING, IN SUMMATION ARGU­MENT, IS PREJUDICIAL ERROR - NEW TRIAL ON DAMAGES ONLY - SHELF IN DEFENDANTS STORE, UPON WHICH T.V. SETS WERE DISPLAYED, COLLAPSED UPON PREGNANT PLAINTIFF, CUSTOMER IN STORE - DEFENDANT'S LIABILITY AFF'D. Cer­tified T.V. & Appliance Co v. Harrington, 109 S.E. 2d 126 (Va. 1959) (restrictive decision; contrary to weight of authority; for superior view, see Ratner v. Arrington, 111 So. 2d 82 (Fla. App. 1959); 60 A.L.R. 2d 1347; and cases cited in 19 Ohio St. L.J. 780; 12 Rutgers L. Rev. 522 (1958); 28 U. Cinn. L. Rev. 138 (1959); Imperial Oil, Ltd. v. Drlik, 234 F. 2d 4 (6th Cir.) cert. denied, 352 U.S. 941 (1956)).­

DAMAGES - PER DIEM ASSESSMENT OF DAMAGES FOR PAIN & SUFFERING UPHELD -

BOTTA V. BRUNNER REJEC TED - $150,000 AWARD TO 39-YR.-OLD RAILROAD ENGINEER FOR TOTAL DISABLEMENT, "ENORMOUS MENTAL AND PHYSICAL PAIN " HELD, NOT EXCESSIVE - FELA CASE. Louisiana & Ark_R_Co. v. Mullins, 326 S.W. 2d 263 (Tex. Civ. App_ 1959) (in reject­ing the Botta v. Brunner argument, ct. said, "The use of a mathematical formula for illustrative purposes has had the sanction of the Texas courts and in other jurisdictions . . ."(citing cases) (at p. 268).

FOREIGN CASES OF INTEREST FROM RECENT NACCA NEWSLETTERS

7th Circuit

INTOXICATING LIQUORS - DRAM SHOP ACTS - CONFLICT OF LAWS - INTERSTATE TORTS- COMPLAINT ALLEGING THAT ILLINOIS TAVERN KEEPERS ILLEGALLY SOLD LIQUOR TO INTOXICATED OWNER & DRIVER OF CAR WHO, IN MICHIGAN, COLLIDED WITH CAR IN WHICH PLAINTIFF'S WERE RIDING, CAUS­ING DEATH & INJURY, HELD TO STATE CAUSE OF ACTION UNDER MI CHIGAN COMMON LAW - CT REACHES THIS SOUND RESULT­ EVEN THO' IT HOLDS THAT NEITHER STATE'S DRAM SHOP APPLIED TO THE COLLISION - VICTIMS IN MICH. OF DRUNKEN DRIVING HELD TO HAVE ACTION AGAINST ILL. LIQUOR DEALERS UNDER MICH. COMMON LAW. Waynick v. Chicago's Last Department Store, 269 F. 2d 322 (7th Cir. 1959) (on extraterritorial application of

Dram Shop Acts, denied in instant case, see 20 NACCA Law Journal 220; cf. 15 NACCA Law Journal 498-501 (dealing with common law liability of vendors of intoxicating liquors).

Alabama

AGAINST BUS COS.. - MANUFACTURERS' LIABILITY - PRODUCTS LIABILITY ­AGAINST TIRE MANUFACTURER - COM­MON CARRIERS & PASSENGERS - BUS PASSENGER RECOVERS FROM BUS CO. & TIRE MANUFACTURER FOR HARM WHEN BUS LEFT ROAD & ROLLED OVER AFTER TIRE BLEW OUT AS BUS WAS ROUNDING CURVE. Greyhound Corp. v. Brown, 113 So. 2d 916 (Ala. 1959) (field, affirming plaintiff's judgment against both carrier & tire manu­facturer (1) jury could find Good­year's negligence concurred with that of Greyhound; (2) res ipsa loquitur applied in passenger's action against bus co. & had effect of shifting ultimate burden of proof to carrier; (3) evidence upheld jury's finding that tire's failure resulted from defect in manufacture & not from road hazard).

AGAINST ROAD CONTRACTORS - AUTO ACCIDENTS - CONTRACTORS' FAILURE TO MARK DANGEROUS INTERSECTION WI TH WARNING SIGNS, AS REQUIRED UNDER CONTRACT WITH STATE, RESULTING IN INTERSECTION COLLISION BETWEEN 2 CARS - HELD, AFF'MING AS NON­ EXCESSIVE AWARD OF $25,000 TO PLAINTIFF, PASSENGER IN ONE OF THE CARS: (1) HIGHWAY CONTRACTOR BUILD­ING ROAD FOR STATE DOES NOT ENJOY STATE'S IMMUNITY FROM SUITS BY TRAVELERS ON HIGHWAY: (2) WHILE DEFENDANT OWED PLAINTIFF TRAVELER ONLY A COMMON LAW DUTY OF DUE CARE, THE CONTRACT BETWEEN DEFENDANT & STATE, REQUIRING DEFENDAN T TO MARK DANGEROUS INTERSECTIONS, CAN BE CON SIDERED IN DETERMIING WHAT WOULD BE DUE CARE IN THE CIRCUMSTANCES). Evans v. Patterson, 112 SQ. 2d 194 (Ala. 1959).

Connecticut

DAMAGES - INJURY TO SELF-EMPLOYED PERSON - ERROR TO REFUSE PLAINTIFF'S REQUESTED CHARGE THAT PERSON WHO HAS TO HIRE OTHERS TO DO WORK WHICH, BUT FOR HIS INJURIED, HE WOULD HAVE PER­FORMED FOR HIMSELF, WAS ENTITLED TO BE COMPENSATED FOR REASONABLE COST OF HIRING SUBSTITUTE. Moiger v. Connecticut Ice Creme Co., 152 A. 2d 925 (Conn. 1959)(ct. cites 37 A.L.R. 2d 364,366).

Kansas

PRACTICE & PROCEDURE - AUTO ACCIDENTS - INTERSECTION COLLISION - "UNAVOIDABLE ACCIDENT" - INSTRUCTION ON, CON­DEMNED - IMPUTED CONTRIBUTORY NEGLIGENCE Kreh v. Trinkel, 343 P. 2d 213 (Kan. 1959) (action by auto guest against oncoming motorist for harm suffered in intersection collision when- host. driver (plaintiff's husband) made left turn in front of oncoming motorist; held, reversing judgment on jury verdict for defendant: (1) evidence was insufficient to warrant giving of ­ unavoidable accident instruction; (2) where it is evident that there must have been negligence on part of defend­ant or plaintiff or both, unavoidable ­accident instruction is improper; (3) husband-driver's contributory fault is not imputable to wife-passenger to bar her action against other motorist; (4) refusal to charge that 2d motor­ist would not be excused from lia­bility by fact that accident was caused by concurrent negligence of host-driver was error) (on judicial condemnation of unavoidable-accident instruction, see 23 NACCA Law Journal 55,18 id. 317-320).

Minnesota

AUTO ACCIDENTS - GUEST CLAIMS - CASE OF THE SLEEPING MOTORIST - DRIVER

FELL A SLEEP A T WHEEL WHILE PASSING OTHER CARS, HARMING GUEST OCCUPANT WHO WAS ASLEEP AT THE TIME - GUEST KNEW THAT DRIVER HAD DRUNK 3-5 BOTTLES OF BEER WITHIN 4-HOUR PERIOD - BUT GUEST DID NOT KNOW THAT DRIVER AS ON DIET (REDUCED FROM 220-170 LBS.) WHICH HAD WEAKENED OR IMPAIR­ED DRIVER'S GENERAL PHYSICAL CONDI­TION - HELD, ERROR TO DIRECT VERDICT FOR DRIVER ON GROUND OF ASSUMP­TION OF RISK. Stotzheim v. Djos, 98 N.W. 2d 129 (Minn. 1959) (very well-reasoned case; on the liability of the sleepy motorist, see 25 N.Y. U.L.Q. 362; 28 A.L.R. 2d 12).

AUTO ACCIDENTS - IMPUTED CONTRIBUTORY NEGLIGENCE - WHERE HUSBAND & WIFE ARE CO-OWNERS OF A CAR, WIFE DRIVING, CONTRIBUTORY NEGLIGENCE. OF WIFE DRIVER NOT IMPUTABLE TO HUSBAND­ PASSENGER SO AS TO BAR HIS ACTION AGAINST OTHER DRIVER - NO IMPUTATION OF CONTRIBUTORY NEGLIGENCE SIMPLY BECAUSE OF CO-OWNERSHIP OF CAR OR MARITAL RELATIONSHIP - NO JOINT ENTERPRISE MERELY BECAUSE H & W, CO-­OWNERS, ARE DRIVING THEIR CAR TOGET­HER. Burdick v. Bongard, 96 N. W. 2d 868 (Minn. 1959) (well-reasoned opinion; see 22 NACCA Law Journal 29­_.55) .

New Jersey

FIREARMS - 15 ½-YR-OLD GIRL NEGLIGENTLY SHOOTS PLAINTIFF, 52-YR.-OLD BUSINESS VISITOR IN HER PARENTS' HOME - PARENTS NEGLIGENTLY PERMITTED DAUGH­TER TO HANDLE, WEAR, & PLAY WITH AUTO­MATIC REVOLVERS & ALLOWED HER TO SLEEP IN ROOM WHERE LOADED GUN WAS KEPT IN UNLOCKED DESK - DUTY OF PARENTS TO CONTROL & SUPERVISE CHILD­REN REACCESS TO & USE OF FIREARMS ­$100,000 AWARD UPHELD AGAINST GIRL & PARENTS. Stoelting v. Hauck, 153 A. 2d 339 (N.J. 1959) (see also, in accord, Kuhns v. Brugger, 390 Pa. 331,135 A. 2d 395 (1957) (citing many cases)).

Ohio

MANUFACTURERS' LIABILITY - ELECTRICITY - WRONGFUL DEATH - DECEDENT, WHILE ALONE IN MILK HOUSE, ELECTHOCUTED WHEN HIS HAND BECAME CAUGHT BETWEEN OP & LID OF MILK COOLER, MANUFACTURED BY DEFENDANT, IN WHICH THERE WAS A SHORT CIRCUIT - NEGLIGENT DESIGN & MANUFACTURE - FOR JURY WHETHER IT WAS NEGLIGENT TO MANUFACTURE MILK COOLER IN SUCH MANNER THAT WIRE OR SOLDERING LUGS PROTRUDED THROUGH HOLE IN METAL PLATE, CONNECTED WITH COOLER PLATE; CAUSING SHOHT CIRCUIT, "ELECTRIFYING" CABINET - EVIDENCE THAT CONTACTING METAL CAUSED THE LETHAL CHARGE - FAIL­URE OF VENDER TO GROUND COOLER NOT A SUPERSEDING CAUSE. Steele v. Westing­ house Electric Corp., 159 N.E. 2d 469 (Ohio App. 1958) (decedent was tenant of 1andlord vendee of milk cooler; held, error to direct for defendant manufacturer) .

Oklahoma

SUPPLIERS' LIABILITY - OF 2D-HAND AUTO DEALER - PLAINTIFF MOTORIST IN JURED WHEN STRUCK BY 2D-HAND CAR, OWNED BY DEALER & DRIVEN BY PROS­PECTIVE PURCHASER - WHETHER DEALER SHOULD HAVE KNOWN BRAKES WERE DEFECTIVE, FOR JURY - ERROR TO SUS­TAIN DEALER'S DEMURRER TO PLAINTIFF'S EVIDENCE - BUICK RULE APPLIED TO RECONDITIONER OF USED CARS. Bush v. Middleton, 340 P. 2d 474 (Okla. 1959) (dealer's liability to 3d person for permitting bailee to drive used car where dealer has reason to know car equipped with bad brakes or other substandard equipment).

Texas

AUTO ACCIDENTS - IMPUTED CONTRIBU­TORY NEGLIGENCE - JOINT ENTERPRISE

- AGREEMEN-TO-SHARE EXPENSES ONVACATION TRIP, OWNER DRIVING ON SUCH NON­-BUSINESS TRIP - HELD, AS A MATTER OF LAW, REVERSING LOWER CTS, SUCH ARRANGMENT DID NOT AMOUNT TO A JOINT ENTERPRISE - OWNER'S CONTRIBUTORY FAULT NOT IMPUTABLE TO PLAINTIFF OCCUPANT SO AS TO BAR HIS \ CLAIM AGAINST 2D NEGLI­GENT DRIVER (FOR BUS CO.) - TEST OF WHETHER CAR­POOL ARRANGEMENT OR AGREEMENT-TO-SHARE EXPENSES (IMPORTANT IN DETERMINING WHETHER OCCUPANT IS OUTSIDE HOST-GUEST STATUTE) IS NOT THE TEST FOR DETER­MINING WHETHER OCCUPANT HAS SUCH AN AGREED JOINT RIGHT OF CONTROL OF OPERATION OF CAR AS TO CREATE A JOINT ENTERPRISE. Bonney v. San Antonio Transit Co., 325 S.W. 2d 117 (Tex.1959) (important, well-reasoned on joint enterprise).

A RECENT VERDICT OF NOTE

Thomas R. McKinnon v. Great Southern Trucking Co. and William L. Barnes, Butts Superior Court. Plaintiff obtained a verdict for $50,000. We do not have a descrip­tion of the plaintiff's injuries but have been informed that this is the highest verdict ever obtained in Butts County in a personal injury' case. The highest verdict prior to this in such a case was $1,500.