A publication of GAPTA, Inc.

(Georgia Association or Plaintiffs' Trial Attorneys)

Vol. 2, No. 5 July 1960

PRESIDENT'S COLUMN

Your President feels strongly that a drive for new members needs to be immediately launched if GAPTA is to continue its progress.

While we do not feel the number of members in an organization necessarily is indicative of suc­cess, we do know there are a large number of Georgia lawyers who engage principally in plaintiffs' trial work who should be in the organization not only because GAPTA will aid them, but also because they could likewise contribute towards the success of our group.

You will note in the last issue of THE VERDICT, Which was the first issue following the election of new officers for the ensuing year, a Membership Committee was named. I have talked with several members of the committee and they join me whole-heartedly in the request that each member of GAPTA, in their res­pective communities, encourage the enlistment of additional members. You, the members of GAPTA, are far more familiar with plaintiffs' trial attorneys in your respective communities than either your President or the members of the Member­ship Committee. I, therefore, appeal to each of you to make in­quiry in your particular sections and lend your efforts towards this drive.

As you know at the end of each issue of THE VERDICT is an application for membership. The dues are quiet reasonable, being only $5.00 per year, and we sincerely hope by the time another issue of the Verdict reaches your desk, each of you shall have enrolled at least one member.

I am advised by Honorable Ross Arnold, of Atlanta, that the "Brief Bank" now has a goodly number of briefs involving important law questions, some of which are novel in character. I hope each of our members will avail themselves of the "Brief Bank" by not only call­ing for certain briefs in Which they might be interested, but al­so filing one with the Honorable Ross Arnold, Grant Building, At­lanta, Georgia. The cost of receiving the briefs is negligible and the only extra effort to file a brief in the bank is simply the making of an extra copy of your briefs which you file in the Court of Appeals and Supreme Court. In seeking new members, we hope you will call attention to the advant­ages of the "Brief Bank."

We are pleased to announce Mr. Cullen M. Ward, of Atlanta, immediate past president, and Mr. William F. Braziel of Savannah, Executive Vice President, attended the National Convention in San Francisco last week. I am sure they can give us a good report of the convention and probably will be able to give us some ideas Which will be help­ful for our own State organization.

Yours for a greater GAPTA,

OSGOOD O. WILLIAMS President

STAFF OF THE VERDTCT

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

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

RECENT GEORGIA CASES OF NOTE

ACTION FOR WRONGFUL DEATH - No surviving eyewitnesses to collision no positive testimony that wife of defendant was driving automobile at time of collision - there was evid­ence that the car was driven by the defendant's wife during some time on the day of the collision and that the automobile came within the family doctrine. Both women were thrown from the car before it stopped. Held, judgment for plaintiff affirmed, Pettigrew vs. Branch, 101 Ga. App. 534. Based on the evidence referred to above and the location of the bodies which were thrown from the car the jury could conclude that the wife of the defendant was driving the car at the time of the fatal collision. It was estimated that the car was being operated at from 100 to 115 miles an hour on a foggy night and the automobile struck numerous objects before it came to a standstill. The Court sa1d that it would not rule as a matter of law that a guest under certain circum­stances was not in the exercise of ordinary care for her own safety when it does not conclusively appear that the passenger knew the wife of the defendant was under the influ­ence of liquor.

In Burton vs. Brown 101 Ga. App. 527, 528, court considered the following charge: "I charge you that if you should believe from the evidence in this case that the plaintiff, Mrs. Viola Brown, could have, in the exer­cise of ordinary care, and by keep1ng a proper lookout ahead observed the movements and position of the automobile of the defendant, Burton, in time to control the speed and movement of her automobile so as to avoid colliding with the Burton auto­mobile, and if you find she fail­ed to exercise ordinary care in respect to such matter, the plaintiff would not be entitled to recover." The trial court had refused to give the foregoing charge the Court of Appeals affirmed stating: "This request did not correctly state the legal proposition sought by the defendant to be charged and the court did not err in refusing to instruct the jury in accordance with it. The mere failure of the plaintiff to exercise ordinary care for her own safety unless such failure was the sole proximate cause of her injury, or unless she fa1led to exercise ordinary care in avoiding the defendant's negligence after it became apparent to her, or after, by the exercise of ordinary care, she might have detected the defendant's negligence and then by the exercise of ordinary care have avoided it, will not bar her recovery. 'Negligence of the plaintiff not fal1ing into one of these categories which concurs with the negligence of the de­fendant in proximately, causing the injury but which does not equal or exceed the negligence of the defendant goes in mitigation but not in bar of the recovery. '"

WORKMEN'S COMPENSATION -- Where an employee is injured by an accident compensable under work­men's compensation and he dies as a result of the accident, is the expense of the last illness limited to $1,500.00? The case of United States Fidelity and Casualty Company vs. Taylor, 101 Ga. App. 544, held in such a situation that there was no fixed limit as to the amount allowed for the last illness of an employee and the employer and or his carrier is liable for any amount of expenses during such last illness-at least so long as expenses are reasonable.

While we usually do not con­sider divorce cases in THE VERDICT, the Editor feels that the case of Jolley vs. Jolley, 216 Ga. 5l if of such importance that it should be pointed out to all practicing lawyers in the State. This case holds that even since the act of 1958, a divorce case 1$ never deemed to be in default and the defendant has an absolute right to file an answer and cross-action at any time before the final decree without the payment of court costs.

The following quotation appeared in the dissenting opinion of Chief Justice Duckworth in the case of State Highway Dept. of Ga. Vs. Mc­Clain, 216 Ga. 1, 7. "Courts have a higher and more worthy mission than engaging in juggling or acro­batic stunts. When a litigant plainly presents the cause of his complaint, this court should devote its intelligence and energies to a decision of that cause rather than finding synthetic excuses for avoiding a decision on the merits, which will be of help and guidance to the parties.

Al Williams of Columbus, writes that Shakespeare indicates there was "some sort of traffic control system in England in the 16th Century, to wit:

'Look you, these are the stop!"­

Hamlet - Act III Scene 2.

"Come, the full stop!" -

Merchant of Venice - Act III,

Scene I.

"Stir not, until the signal" ­

Julius Caesar - Act V Scene 1.

"He: Hear the Carmen whistle!"­

Henry IV - Part II, Act III,

Scene 2."'"

FOREIGN CASES OF INTEREST FRO M RECENT NACCA NEWS LETTERS

MEDICAL-LEGAL --AGGRAVATION OF PRE­EXISTING WEAKENED CIRCULATORY

SYSTEM & IMPAIRED BLOOD SUPPLY TO BRAIN -- FOLLOWING 1951 OPERATION

TO DILATE BRAIN ARTERIES, PLAIN­TIFF GRADUALLY IMPROVED (NO LEG BRACE & SPEECH ALMOST NORMAL) - DUE TO NEGLIGENCE OF DEFENDANTS, OWNER & DRIVER OF CAR, PLAINTIFF WAS INJURED IN 1957 AUTO ACCIDENT RIGHT FOOT & ANKLE INJURED PLUS SNAPPING OF HER NECK -THEREAFTER SHE BEGAN TO HAVE SEVERE HEADACHES, DIZZY SPELLS, LOST HER ABILITY TO TALK COULD NOT ADD OR SUBTRACT OR DO HER HOUSEWORK --AT TRIAL HER DOCTOR TESTIFIED THAT IN HIS OPINION, 1957 ACCIDENT PRODUCED NEUROLOGICAL DIFFICULTIES PLAINTIFF COMPLAINED OF --HELD, RE­VERSING DIRECTED VERDICT FOR DEFENDANT, PLAINTIFF'S DOCTOR'S TESTIMONY WAS SUFFICIENT TO RAISE JURY QUESTION ON CAUSATION, DESPITE DR.'S GENERAL ANSWER ON CROSSEXAMINATION THAT PLAINTIFF'S BACK­GROUND OF WEAKENED CIRCULATORY SYSTEM & IMPAIRED BLOOD SUPPLY TO BRAIN MADE IT REASONABLY FORE­SEEABLE THAT OVER THE YEARS HER SYMPTOMS WOULD WORSEN OR REPEAT THEMSELVES -- EXCELLENT DECISION ON MEDICAL CAUSATION -- "SEQUENCE OF EVENTS, PLUS PROOF OF POSSIBLE CAUSAL RELATION, MAY AMOUNT TO PROOF OF PROBABLE CAUSAL RELATION, IN THE ABSENCE OF EVIDENCE OF ANY OTHER EQUALLY PRO­BABLE CAUSE - IN AGGRAVATION OF PREEXISTING DEFECT CASES, NO DEFENSE THAT DE­FENDANT'S NEGLIGENCE PRODUCED RESULT BECAUSE OF VICTIM'S UNUSUAL TENDENCY OR PREDISPOSITION TO THAT RE­SULT . " Walters v. Smith, 158 A. 2d 619 (Md. 960).

DAMAGES -- WHETHER EX­CESSIVE -- $250,000 AWARD --TO HEALTHY 5l-YR.-OLD MAN WITH LIFE EXPECTANCY OF 22 YRS, EARNING $19.40 A DAY AS OPERATOR OF HEAVY-DUTY TRENCHING MACHINE --LOST LEFT LEG BELOW KNEE WITH SHRINKING OF REMAINDER OF LEG & FURTHER SURGERY REQUIRED, WITH POST CONCUSSION SYNDROME IN­CLUDING POSITIONAL NYSTAGMUS & INJURY TO CENTRAL NERVOUS SYSTEM --TERRIBLE AGONY AT TIME OF ACCI­DENT --$250,000 AWARD HELD NOT EXCESSIVE -TRIAL CT DID NOT ERR IN PERMITTING PLAINTIFF'S COUNSEL TO TEST ATTITUDE OF PROSPECTIVE JURORS BE RETURNING $300,000 AWARD --ACTION WAS AGAINST OPERATOR & OWNER OF "BACKHOE," HEAVY-DUTY TRENCHING MACHINE WHO RENTED MACHINE & OPERATOR TO CITY -­ PLAINTIFF, A CITY EMPLOYEE WORKING IN SEWER TRENCH LOST LEG WHEN STRUCK BY BUCKET OF MACHINE -- GOOD DISCUSSION OF WHY NEGLIGENT OPERATOR WAS NOT CO-EMPLOYEE OF PLAINTIFF UNDER "LOANED SERVANT" DOCTRINE. Murphy v. Lindah1 165 N.E. 2d 340 (III. App. 1960).