A Publication of GAPTA, Inc.

(Georgia Association of Plaintiffs' Trial Attorneys)

Vol. 2, No.1 January, 1960

PRESIDENT'S COLUMN

I was so impressed with the NACCA News Letter from the Home Office in Boston, Massachusetts, that I have asked the Editor to set forth the contents of the President's Column contained in the January NACCA News Letter.

This demonstrates what our National President is doing in connection with the performance of the duties of his high office. NACCA is now a respected Bar Association, and one of the strongest continuing education groups in the Legal Field.

I would also at this time like to comment on the last issue of "The Verdict" which was prepared for distribution at our Medical Seminar on December 12,1959. This is certainly one of our best issues and is bringing to the fore­front the fact that most jurisdic­tions permit you to use a blackboard and to argue the monetary value of pain and suffering to the Jury. We now have a Bill pending in the Senate on this very subject, House Bill No. 315 now in the Judiciary Committee. I suggest you contact your Senator and have I that Bill reported out of Committee favorably so that it will pass in the Senate and become the Law in this State. Most of our Courts in Georgia permit this to be done, but some Judges are restricting this right of counsel to argue to the Jury. I have asked one of our members to prepare us a brief to be published in "The Verdict" later on this subject.

We now have pending in the State Legislature the following Bills to help the Trial Attorneys in Georgia:

House Bill 164 - To Make Track­less Trolleys Subject to the Law, Regulating Motor Vehicles on the Highways. There is no law now regulating trackless trolleys, as they were exempt from the definition of motor vehicle in the uniform traffic code of 1953.

House Bill 386 - To Provide that in Civil Cases the Exceptions Must Be Made to the Judge's Charge Immediately after the Judge Gives the Charge as the Federal Rules Require.

House-Bill 400 - To Provide that the Plaintiff May Move for Directed Verdict on Liability in an Unliquidated Damage Case. The Law is not now clear on this.

There are two other Bills, which are now in Committee and have not been reported out that are very im­portant to the Trial Attorney. They are:

House Bill 305 - To Permit a Doctor to Testify as to the History Given Him by the Patient and Subjective Complaints. This is now in the Industrial Relations Committee in the House and the Bill is sponsored by Emory Roland of Johnson County.

House Bill 399 - To Provide that Motion for a New Trial in a Civil Case Must be Filed within 15 Days after Verdict and Judgment and Passed on within 60 Days, and it furthermore provides that it is not necessary that the tran­script be ordered out. This Bill has quite a number of sponsors and would save a lot of delay on motions for new trial and would fit right in with the Federal Rule.

Any help that you can give your Association in connection with these Bills would be appreciated by all Trial Attorneys in Georgia.

I will give you a brief report now on our Medical Seminar that we gave in conjunction with the Georgia Bar Association at the Mid-Winter Meeting.

I regret that we did not have as many registrants attending this Medical Seminar as I felt we should have. It was an excellent program and since it has been given, we have had several requests for transcripts of it, but we did not have it recorded this year as we have done in the past.

As a result of this Medical Seminar, we acquired five (5) new members, one of whom is a sustaining member. Many who attended were astonished to find out what your Association was doing to promote continuing education in the Legal Field.

There were eighty (80) registrants attending, for which we received $800.00, and our expenses ran about the same. We had a cocktail party and re­ception for all members of the Georgia Bar. This was given in honor of Senator Ervin of North Caro1ina, who was the speaker at the banquet. This was well-attended by the members of the Georgia Bar, as well as our own Association.

We paid our speakers $50.00 each as a token payment, the re­mainder of the expense was for printing, long distance calls and the like. The two biggest items were, of course, the cocktail party and the payment of the Doctors who gave their lectures.

Attending from out of the State were lawyers from South Carolina, Tennessee and Alabama, and in fact, the President of the Alabama Plaintiff's Lawyers Association was present.

This is our first experience of giving a Seminar in connection with the Georgia Bar Association, and

because of the difficulty with de­tails, it would be my recommendation that in the future we have our seminars for our own Association of at least two days in length and, that we handle all of the details connected with it.

I certainly hope that the New Year will be a good one for every member of the Association.

Our Editor advises me that he would welcome "Letters to the Editor" with suggestions of ways and means of better-serving you.

With my very best wishes I am.

Sincerely yours,

CULLEN M. WARD President

PRESIDENT'S COLUMN

I. ON THE MOVE

Boston, Massachusetts - We are pausing en route to Baltimore and Washington D.C., for conferences ­at the Home Office where the industrious staff is operating in its efficient way to service the requirements of our growing organization. I have discovered the complete utility of drip-dry haberdashery.

In retrospect, these past 13 days have been exciting, provocative and at times dramatic. First, to Minnesota for the Eighth Circuit Conference, where we had reason for genuine Thanksgiving in the crisp, cold air of Minnesota where Si Weisman and Jim Courtney, co-chair­men, produced a superb program. Honoring us at the Banquet Table, were the great and liberal Governor of Minnesota, our own Orville Freeman, a number of Justices of the Minnesota Supreme Court, judges of the trial courts and Members of the Board of Governors.

Thence, to Chicago, for the Seminar of the Association of Plaintiffs' Trial Lawyers of Illinois on November 28 and a planning meeting with Walter Beall, Chairman and Governors Horen and Friedman, for the Mid-Winter Conference at Cincinnati, February 19,20 and­21st.

Participants Jim Dooley, Abe Freedman, Harry Gair, Tom Lambert, Mel Belli and a number of out­standing defense counsels made the meeting memorable and stirring to the senses. "Colonel" Leo Karlin, Program Chairman, was last to the Kentucky Militia on the process, but spirits remained high.

II. CHIQAGO - CONGESTION

Operating from a courthouse 53-years-old, with some 60 judges less than are constitutionally required, Cook County is virtually in a stage of administrative emergency. Even as we spoke of the "Five Year Plan" for getting to trial in Chicago - it was made clear that the figure is 6 years and approaching 6 and one-half years! Delay, in Chicago, the ninth largest city in the world, like a war of attrition, serves but one purpose - to wear the claimant down, to strengthen the defendant's bargaining position, and effect a practical denial of equal justice.

We are reminded here that Justice, like our democracy which would perish without it, does have a price tag. Justice may even be a luxury, but in our democracy.it is quite an appropri­ate form of national self-indulgence.

Not enough, this interminable and unjustifiable delay, those respons­ible in a great measure for the exist­ing situation have cast about for a "whipping boy," and they have been aided in this attempt by irresponsible forces well equipped to influence public opinion. In Chicago, as in many other areas, the "brainwashing" of potential jury panels continues unabated, and we have asked - how do these forces seek to identify them­selves with the public good by aligning one element of the public against the other - the uninjured against the injured; the living against the dead?

One New York Insurance Company president put it candidly:

"Appealing to the pocketbook of the masses to promote lower claims and settlements may be logical from a short range financial viewpoint. In certain eyes, however, it might appear to constitute an organized attempt to gang up on Innocent victims... by even risking to appear as if we are ganging up on that many vic­tims we are likely to be caught with our public relations down."

III. OKLAHOMA

On December 1st, 2nd and 3rd, we joined our enthusiastic, energetic NACLA colleagues at Oklahoma City. Here, the "wind comes sweeping down the plain" with inspiring results.

The program started with a special dinner for the distinguished Chief Justice and the majority of this progressive Supreme Court. It was an evening we shall, with good cause, long remember. Next day, at the Banquet, NACCA's "Blueprint For Public Service" was presented to our Oklahomans and their dis­tinguished guests. Sheparded by Paul Pugh, Gene Seigel and Homer Bishop, it was our pleasure to address the Oklahoma University Law School classes. It was a genuine joy to see the future Bar of America and to note its hunger for learning and than ac­ceptance of the idea that an enlightened and effective advocacy is one of the requirements of the American Trial Bar.

On Thursday, the 3rd, we met and addressed the Negligence Section of the Oklahoma Bar Association and then traveled by quick flight to Kansas City, Missouri, to attend the meeting of the Kansas City­ Bar Association, featuring a Seminar on Workmen's Compensation and made an address to the stu­dents at the city's University Law School. Ben Swofford, Arthur Schmahlfeldt, Frank Mattes, and other Missourians, made this a singular occasion.

Presently, we are headed for Baltimore and the Maryland Plain­tiffs' Bar Association, thence to Washington, D.C., for a meet­ing with some major committees planning interprofessional ac­tivities. En route home, I shall be joining with two national com­mittees in Chicago for conferences the results of which I feel will be salutary and in the public good.

I am grateful increasingly to be in the service of NACCA ­Counsel For The Public. Through­out the country, one discovers anew, and with immense pride, the endeavors of the plaintiffs' trial bar of America in behalf of the public. NACCA, in its maturity, has emerged as a force for good and as one of the great and benevolent sociological developments of our times. Slowly, the unwarranted attacks upon its motives are serv­ing but to emphasize and underscore the true nature and quality of its services. NACCA' s blueprint for public service does and will include the assertion of its total vigor and militant strength in support of trial by jury and in defense of those cons­titutionally created concepts of equal justice which give meaning and reason to the living law.

I trust the holidays will serve to refresh your energies and that we shall enjoy a bright new year, free of illness or despair, and full of vigor and success in our personal trial and national tribulations.

NACCA which has given unself­ishly to all of us, asks one gift for the New Year. Will you each get one new member in the next 30 days? Do it now - as a small measure of thanks to those who have given so much to so many."

"LOU ASHE"

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"TACKING" VARIOUS CONCURRENT EMPLOYMENTS IN ORDER TO INCREASE WORKMEN'S COMPENSATION ENTITLEMENT

Idov had three jobs: one, working for a clothing company from 9:00 A.M. to 6:00 P.M. six days per week, a total of 48 hours per week, for a total compensation of $60 per week; second, for a liquor store from 6:30 to 11:45 four nights a week, a total of 21 hours per week, for a weekly compensation of $25; and third working for another liquor store from 6:30 to 11:45 two nights per week, a total of l0.5 hours per week, for a weekly com­pensation of $15. He worked 81.5 hours per week for a total of $100 per week. He was shot and killed by a robber one night while working on the two nights per week liquor store job. His Workmen's Compen­sation entitlement would obviously be considerably less if it were based on that job alone, rather than if he could "tack" the other two jobs to it so that his widow could obtain maximum compensation.

In a case of first impression in Georgia, the Court of Appeals held, the Supreme Court denied certiorari, that the various employments could be "tacked", and thus Idov's widow received maximum Workmen's Compensation. The Court held that the doctrine of con­current similar employment applied and, therefore, in effect, they could be tacked, quoting another case at 88 Ga. App. 700, "'Where an employee is working for several different employers and is injured, in order that he may be reasonably compensated for the loss of his earning powers, his total wages must be taken into consideration. Any other construction of the statute would result in great in­justice and lead to absurdities."

It may be noted that not all states are as enlightened on this partic­ular point as is Georgia. See

ST. PAUL-MERCURY INDEMNITY CO. vs. IDOV, 88 Ga. App. 697, 77 S.E. 2d 327; certiorari denied, 210 Ga. 256,78 S.E. 2d 799 (1953).

By Ross Arnold

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STAFF OF THE VERD ICT

Editor ....................... William W. Daniel

Associate Editor ....................... Ross Arnold

FOREIGN CASES OF INTERET FROM RECENT NACCA NEWS LETTERS

MANUFACTURERS' LIABILITY - PRODUCTS LIABILITY - STORE PATRON SUES MANU­FACTURER FOR HARM FROM FALL CAUSED BY COLLAPSE OF CHAIR IN RETAILER'S STORE - ERROR TO GRANT MANUFACTURER SUMMARY JUDGMENT - FACT THAT CHAIRS WERE SQLD "AS IS" BY MANUFACTURERTO RETAILER WHILE NEGATIVING WAR­RANTY BETWEEN SELLER AND BUYER DOES NOT NEGATIVE MANUEACTURER'S DUTY TO ANTICIPATE RESALE OF ARTICLE TO ULTIMATE USER - MANU­FACTURER "IS NOT FREED OF ALL DUTY TO THAT USER BY THE SIMPLE METHOD OF SELLING "AS IS" - SUMMARY RELIEF CANNOT BE IMPOSED AS TRIAL BY AFFIDAVIT - INTERVENING NEGLI­GENCE OF RETAILER WOULD NOT RELIEVE MANUFACTURER FROM LIABIL­ITY WHERE MANUFACTURER SHOULD HAVE ANTICIPATED RETAILER'S NEGLIGENT FAILURE TO REPAIR CHAIR - PLAIN­TIFF'S. CLAIM THAT CAUSE OF CHAIR IS COLLAPSE- WAS ALSO DUE- TO FAULTY DESIGN, APART FROM CON­STRUCTION DEFECTS, RAISED QUESTION OF FACT PRECLUDING SUMMARY JUDGMENT. Champlin v. Oklahoma Furniture Manufacturing Company, 269 F. 2d 918 (lOth Cir.1959).

New York

AGAINST RAILROADS - ­BREACH OF FENCING STATUTE - FRIGHT AND SHOCK WITHOUT IMPACT - ­PLAINTIFF'S COWS ES­CAPED THROUGH FENCE THAT RAILROAD HAD NOTICE WAS DEFECTIVE AND HAD DAILY TO MAIN­TAIN - COWS WERE INJURED WHEN TRAIN STRUCK ONE AND FRIGHTENED REST INTO STAMPEDE - HELD, AFFIRMING JUDGMENT FOR PLA INT IFF, EVEN IF SOME OF COWS WERE INJURED SOLELY AS RESULT OF INTERNAL OPERA­T ION OF FRIGHT WITHOUT IMPACT, OWNER COULD RECOVER AGAINST RAILROAD FOR HARM TO ALL OF THEM. Gonsenhauser v. N.Y. Central R. Co., 188 N.Y.S., 2d 901 (App. Div. 1959) (suppose the railroad negli­gently frightened the farmer who suffered a heart attack without impact: under Mitchell v. Rochester R. Co., 151 N.Y. 107, 4_N.E. 354 (1897), would recovery be denied the farmer, despite the fact (instant case) that his cows can recover? Is this the answer of an enlightened people to the hallowed question: "How much then is a man better than a sheep?" Matt. 12:11 and 12, Authorized Version). (On Liability for fright and shock cases negligently caused, see 28 ALR2d llOl)