THE VERDICT

A publication of GAPTA, Inc.

(Georgia Association of Plaintiffs' Trial Attorneys)

Vol. 1, No.4

October 1959

PRESIDENT'S COLUMN

The October VERDICT is late because of my heavy trial calendar and also because a great amount of time has been spent in making plans for our fall seminar program.

By virtue of my office as President of GAPTA, I was invited by the Board of Governors of the Georgia Bar Association to attend their meeting in Brunswick. Plans for the mid-winter Bar Association meeting to be held in Atlanta were discussed, and our organization was invited to participate.

After a long series of negotiations between our Seminar Chairman, Osgood Williams, and a committee of the Georgia Bar Association, it was agreed that our seminar would be held on Saturday, December 12, in conjunction with the mid-winter Bar meeting, December 10-12. We feel that this is an excellent arrange­ment. The registration fee for this seminar will be only $10.00, which is considerably less than past registrations; also, all details, including registration, will be handled through the staff of the Georgia Bar Association. I personally think that this arrange­ment will be mutually advantageous and will tend to increase attendance at both meetings.

In arranging our program, we made an effort to obtain Dr. Alton Oschner from New Orleans, Dr. Rigdon of Texas, and Senator Alva Brumfield of Baton Rouge to appear on a cigarettes vs. lung cancer program.

This, however, did not work out, as Dr. Oschner has just returned from Europe, and a heavy schedule will not permit his appearance. Although only local doctors will take part, we feel that we will have a well-balanced pro­gram dealing with the most common medi­cal problems which confront the personal injury lawyer.

A splendid program of social acti­vities has been planned for the mid­winter meeting, and GAPTA is sponsoring a cocktail party on Friday afternoon, December 11.

We plan to send programs and invita­tions to all plaintiffs' attorneys in the southeast. Please try to attend yourself and bring a lawyer friend with you. We will have, in addition to our program, displays of brochures and blown­up photographs used in the trial of personal injury cases.

On a separate page you will find the committee appointments for the year 1959-60. We consider the Legislative and Judiciary Committees of particular significance at this time because the Legislature convenes in January. We now have seven bills pending in the State Legislature left over from the last session. These bills are not for the sole benefit of the plaintiff's law­yer, but rather for the benefit of the general public. Later on you will receive a list of these bills by number and a brief statement about each, so that you may contact your local repre­sentative.

Yours for a better and larger GAPTA.

Sincerely,

CULLEN M. WARD, President

GAPTA STAFF

Editor. . . .. William W. Daniel

Associate Editor. . . Ross Arnold

Address:

925 Grant Building Atlanta 3, Georgia

COMMITTEES FOR 1959-60

Legislative Committee

Sam D. Hewlett, Jr., Atlanta, Chair­man

George Bagby, Dallas, Vice-Chairman

Ernest MacDonald, Dalton, Secretary

Carl E. Sanders, Augusta

Harry Dicus, Columbus

Asa D. Kelley, Jr., Albany

Frank S. Cheatham, Savannah

Nick Long, Jr., Atlanta

Osgood o. Williams, Atlanta

Will Hayes Pickett, Jasper

Randall Evans, Jr., Thomson

Fred H. Walker, Valdosta

Judicial Committee

S. Gus Jones, Macon, Chairman

Samuel D. Hewlett, Jr., Atlanta, Vice-Chairman

Wilson Brooks, Atlanta

Judge Robert Carpenter, Atlanta

Hugh H. Howell, Jr., Atlanta

Martin McFarland, Atlanta

C. Wesley Killebrew, Augusta

Harvey J. Kennedy, Jr., Barnesville

Ronald F. Adams, Jesup

Judge Roy B. Rhodenhiser, Jr., Macon

Owen J. Adams, Thomaston

Public Relations and Membership Committee

Wilson Brooks, Atlanta, Chairman

Hugh H. Howell, Jr., Atlanta

Joseph B. Kilbride, Atlanta

Mrs. Grace W. Thomas, Atlanta

Alford Wall, Atlanta

Franklin H. Pierce, Augusta

Anthony A. Alaimo, Brunswick

William S. Cain, Columbus

Charles Hyatt, Decatur

Paul J. Jones, Jr., Dublin

Robert M. Heard, Elberton

E. W. Fleming, Hogansville

Loeb C. Ketzky, LaGrange

Fred Bentley, Marietta

Gary Hamilton, Rome

Jack Miller, Savannah

Marcus Calhoun, Thomasville

Seminar Committee and/or Continuing Education Committee

Osgood O. Williams, Atlanta, Chairman

Ernest MacDonald, Dalton, Vice-Chairman

Abe Nathan, Brunswick

E. W. Fleming, Hogansville

Hugh Head, Jr., Atlanta

Calhoun A. Long, Atlanta

Clifford Seay, Barnsville

E. W. Highsmith, Brunswick

E. J. Clower, Rome

William F. Braziel,. Savannah

Frank L. Forester, Thomasvi1le

RECENT GEORGIA CASE OF INTEREST

FAMILY CAR DOCTRINE - The 1iabtlity of a defendant is not affected by the feet that the car was kept and maintained by him primarily for business purposes where it was also kept for the pleasure and conven­ience of some of the members of his family. Temple v. Chastain, 99 Ga. App.

719.

FOREIGN CASES OF INTEREST FROM RECENT NACCA NEWS LETTERS­

MANUFACTURERS' LIABILITY - FOR NEGLIGENT MAHUFACTURE & DESIGN 0F BULLDOZER - WHEN OPERATOR STEPPED ON INSPECTION COVER OF DECK PLATE, HINGE ON COVER BROKE OFF BB­CAUSE OF DEFECTIVE WELD & PLAINTIFF'S LEG SLIPPED DOWNWARD INTO ENCLOSED MOV­ING PARTS OF CLUTCH ASSEMBLY - AMPUTATION ABOVE KNEE - $100,000 AWARD REDUCED ON REMITTITUR TO $80,000 - CT REJTECTS DEFENSE CONTENTION THAT SAFE USE & PASSAGE OF TIME BETEEN SALE 0F ULLOOZER IN 1949 & HINGE FAILURE IN 1952 NEGATES CAUSATION - NEGLIGENT DESIGN - JURY COULD FIND THAT DECK PLATE LIP SHOULD HAVE BEEN EXTENDED ALL THE WAY AROUND THE COVER ­IMPORTANT CASE: SQUARELY UPHOLDS PER­MISSIBLE JURY FINDINGS THAT DEFENDANT WAS GUILTY OF' CAUSAL NEGLIGENCE (1) IN DESIGNING DECK PLATE AND (2) IN WELDING OF HINGE. Darling v. Caterpiller Tractor Co., 341 P. 2d 23 (Ga. App. 1959).

OCCUPIERS' LIABILITY - TO SHEET-METAL WORKER, EMPLOYED BY FIRM HIRED BY DEFEND­ANT TO INSTALL ROOFING MATERIAL ON DFENDANT'S BUILDING - WORKER FELL THROUGH SKYLIGHT WHICH WAS ALREADY CRACKED & BROKE UNDER HIS WEIGHT - EMPLOYEE OF CONTRACTOR AN INVITEE OF OWNER ­ERROR TO DIRECT FOR DEFENDANT ­DEFENDANT'S DUTY UNDER LABOR CODE. Johnson v. A. Schilling &: Co., 339

P. 2d 139 (Cal. App. 1959) (held, as to unsafe conditions of employ­ ment existing at time owner turns place over to independent contrac­tor, owner is an "employer" within Labor Code &, as such, is obligated to furnish place of employment which is "safe for employees therein;" such statutory duty (unlike the com­mon-law duty of occupier to invitee) cannot be satisfied by mere warning or obviousness).

AGAINST VENDORS, MANUFACTURERS & SUPPLIERS - UNLAWFUL SALE OF RIFLE TO MINOR - SELLER HELD GUILTY OF STATUTORY NEGLIGENCE PER SE - CONTRIBUTORY NEGLIGENCE OF MINOR NO DEFENSE. Tamiami Gun Shop v. Klein, 109 So. 2d 189 (Fla. App. 1959) (where defendant firearms dealer, in violation of statute & ordinance, sold repeating rifle to minor plaintiff & while returning by car from target practice in Everglades, rifle discharged when car struck depression in road, shattering plaintiff's thumb, held, aff'ming summary judg ment for plaintiff: (1 ) con­tributory fault is not a defense when defendant's negligence consists in vio­lating statute or ordinance enacted for protection of specific class of persons from their inability to exercise self-protective care; (2) violation of the statute & ordinance was negligence per se & the proximate cause of the accident as a matter of law). (Editor's note: Ga. Code 126-5108-- makes it unlawful in case of a Pistol)

AGAINST INSURANCE COS. - BAD­ FAITH REFUSAL TO SETTLE HELD LIABLE FOR FULL JUDGMENT IN EXCESS OF POLICY LIMITS COULD HAVE SETTLED 4 PASSENGER CLAIMS (ONE F'ATAL) AGAINST ITS INSURED FOR 25% LESS THAN POLICY LIMITS - PACKAGE OFF TO SETTLE ALL 4 CLA1MS FOR $7,500, LIMITS OF $10,000, & ULTIMATE JUDGMENT OF $31,954 - DISCOVERY - COMMUNICATIONS BETWEEN LIABILITY INSURER & COMMON ATTORNEY REGARDING SETTLEMENT NOT PRIVI­LEGED AS TO INSURED - MEMO FROM INSURER'S CLAIM MGR. TO INSURER'S GENERAL SUPERVISOR OF CLAIMS, CONTAINING CAVALIER REJECTION OF INSURER'S LOCAL DEFENSE ATTORNEY'S EARNEST RECOMMENDATION TO ACCEPT PLAINTIFF'S SETTLEMENT OFFER, HELD PROPERLY ADMITTED - SUCH INTEROFFICE MEMO NOT PRIVILEGED SINCE NOT WORK PRODUCT OF ATTORNEY, JUST CLAIMS OFFICIAL - INSURED'S ACTION FOR WRONG­FUL REFUSAL TO SETTLE ARISES BEFORE PAYMENT OF JUDGMENT: INSURED CAN COLLECT FROM INSURER EVEN THO' HE HAS NOT PAID THE JUDGMENT. Henke v. Iowa Home Mut. Cas. Co., 97 N. W. 2d 168 (Iowa 1959)(very important & 1st-rate opinion on insurer's duty to settle).