The Verdict

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

Vol. 2, No. 4 June 1960

PRESIDENT'S COLUMN

GAPTA MEETING IN SAVANNAH­

During the annual meeting of the Georgia Bar Association held in Savannah in the latter part of May, our organization, the Georgia Association of Plaintiff's Trial Attorneys, held their meeting on Friday, May 27th, in the DeSoto Hotel.

This annual meeting, at which the officers for the ensuing year were elected, was well attended, and there was much enthusiasm on the part of the members with res­ pect to the progress that had been made under the administration of the outgoing President, Cullen M. Ward. All present expressed their gratitude for his work during the past twelve months.

There was also a lively discussion among the members as to the future progress of GAPTA, and many of those present offered many fine suggestions which were noted by the Secretary.

The following officers for, the ensuing year were elected it this meeting.

Osgood O. Williams, Atlanta, Presi­dent

William F. Braziel, Savannah, Exe cutive Vice President

J. R. Cullens, Cartersville, Vice President

Gerald Kunes, Tifton, Vice Presi­ dent

Gus Jones, Tifton, Vice President

Harry Dicus- Columbus, Vice President

Abe Nathan, Brunswick, Vice President

Dean Joseph Kilbride, Atlanta, Vice President

The following officers were reelected all of whom have served faithfully in their respective posts for several terms:

Alford Wall, Treasurer

William W. Dani el, Secretary

William W. Daniel, Editor of "THE VERDICT"

Ross Arno, Associate Editor of "THE VERDICT"

Elsewhere in this issue of "THE VERDICT" is the appointment of com­mittees for the ensuing year, 1960­-1961.

IMPORTANT CASE NOW PENDING

There i s now pending in the Court of Appeals of Georgia the case of Betty S. Cochran vs. James Addison Bell, Jr. being Case No. 38437, in that Court. This is a highly im­ portant case to all plaintiffs' trial lawyers in Georgia, and I wish to call it to your attenti on so that you may watch the outcome. Briefly, the case poses the question of what happens when an insurance company settles a claim with a claimant with­out the knowledge or consent of its insured, and later its in­sured brings action against the claimant with whom the company has settled and thereupon the claimant files a cross action against the plaintiff likewise seeking damage for personal injury. Whatever right, if any, the claimant had was pre­viously settled in a release given by him to the insurance company but all without knowledge of the plain­tiff. Upon the trial of this case the plaintiff put the defendant upon the stand and examined him about his settlement. The testi­mony was he had settled with the insurance company of the plaintiff, and he had signed a release. None­theless counsel for plaintiff at the conclusion of the evidence made a motion to strike the cross action and the motion was granted. Thereupon counsel for the defendant made a motion to strike the plaintiff's petition upon the ground that the plaintiff was relying upon the re­lease which had been executed by the defendant to her insurer and the court dismissed plaintiff' s petition.

In the event insurance companies are permitted to settle claims with­out the knowledge or consent of their insured, and the claimant with whom they settle are permitted later to bring a cross action once they are sued, then virtually every plaintiff damage suit is in jeopardy in this state.

It is well recognized that an insurance company may settle with claimant without the consent or authority of their insured but the point here is, once they have so settled, the defendant should not be permitted to bring a cross action. See 101 U. S. 1076; 24 S. E. 2 nd 74; 202 Ga. 201; 57 Ga. App. 500; 202 Federal 2 nd 8; 91 S. E. 926.

As your President of Georgia Asso­ciation of Plaintiff's Trial Attor­neys, we shall exert our very best efforts so that our organization may grow and make much progress in the future as it has in the past. To that end I ask the cooperation of all members, and if at anytime this office may be of assistance, you may promptly let me know.

Yours for a greater GAPTA,

OSGOOD O . WILLIAMS President

STAFF OF THE VERDICT

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

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

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The following Committees have been appointed by o ur GAPTA President, Osgood O. Williams:

Legislative Committee

J. R. Cullens, Cartersv1lle, Chairman

Randall Evans, Jr., Thomson, Vice Chairman

Carl E. Sanders, Augusta

Harry Dicus, Columbus

Frank S. Cheatham, Savannah

Fred H. Walker, Valdosta

Sam D. Hewlett Jr., Atlanta

Judiciary Committee

Wilson Brooks, Atlanta, Chairman

Judge Roy B. Rhodenhiser, Jr., Macon, Vice Chairman

Judge Robert Carpenter, Atlanta

C. Wesley Killebrew, Augusta

Judge Ronald F. Adams, Jesup

Public Relations and Membershi p Committee

Cullen M. Ward, Atlanta, Chairman

Anthony A. Alaimo, Brunswick, Vice Chairman

Robert M. Heard, Elberton

Alford Wall, Atlanta

William S. Cain Savannah

E. W. Fleming, Hogansville

Gary Hamilton, Rome

Jack Miller, Savannah

Seminar Committee and Continuing Education Committee_

Alford Wall, Atlanta, Chairman

Cullen M. Ward, Atlanta, Vice President

Anthony A. Alaimo, Brunswick

Hugh Head, Jr., Atlanta

William F. Braziel, Savannah

Frank L. Forester, Thomasville

Georgia Bar Association Liaison Committee

Marcus Calhoun, Thomasville, Chair­ man

Robert M. Heard, Elberton, Vice Chairman

Harvey J. Kennedy, Jr., Barnesville

Emory Rowland, Wrightsville

OCCUPIERS' LIABILITY-- SLIP & FALL -- IN DEFENDANT'S LIQUOR & DELICATESSEN STORE--WHO ARE INVITEES? --ADULT ACCOMPANYING FRIEND INTO STORE WHERE FRIEND INTENDED TO BUY HELD AN INVITEE RATHER THAN HERE LICENSEE- PLAINTIFF FELL ON "STICKY-LOOKING" SPOTS IN AREA IN FRONT OF ICE-CREAM & SOFT-DRINK CABINETS-INFERENCE COULD BE DRAWN SPOTS HAD BEEN ON FLOOR FOR SOME TIME -- TESTIMONY THAT IN AREA IN FRONT OF CABINETS, "THERE WAS ALWAYS DRIPPINGS FROM, COKE, ANY KIND OF SODA POP & ICE CREAM ON THE FLOOR." -- DEFENDANT TESTIFIED THAT WHILE HE TRIED TO DISCOURAGE CUSTQMERS FROM DRINKING ON THE PREMISES, "WE CAN 'T STOP IT." -HELD, REVERSING NONSUI T OF PLAINTIFF "WHERE A BUSINESS ITVITER HAS KNOWLEDGE ACTUAL OR CONSTRUCTIVE, OF A COURSE OF CONDUCT OF THIRD PERSONS ON HIS PREMISES WHICH MAY ENDANGER THE SAFETY OF HIS IN­VTTEES HE IS UNDER A DUTY TO EXERCISE ORDINARY CARE TO FORESTALL SUCH INJURY." FarrIer v. Levin, 1 Cal. Rptr. 742 (Cal. App. 1959).

NATURAL GAS EXPLOSION --INJURY TO HOUSE­ - WIFE-- ACTION AGAINST BUILDER-VENDOR

OF HOUSE, GAS CO. (SUPP LIER), & MANUFACTU­ RER OF GAS WATER HEATER -- FAILURE TO

EQUIP HEATER WITH SAFETY CONTROL WHICH WOULD CUT OFF GAS SUPPLY TO PILOT LIGHT IN EVENT IT FAILED -- BUILDER NEGLIGENT­ LY INSTALLED HEATER IN UTILITY ROOM WHICH LACKED PROPER VENTILATION -- IF GAS CO. CONTINUES TO SUPPLY GAS TO FIXTURES ON CUSTOMER'S PREMISES AFTER IT LEARNS GAS IS ESCAPING THEREFROM, S UPPLIER IS LIABIE FOR RESULTING EXPLOSION. Shepard v. Rheem Manufactur1ng Co. 112 S.E. 2d

377 & 380 (2 cases) (N.C. 1960) (proper to over-rule demurrers of builder gas supplier, & manufacturer of defective gas water heater; at pleading stage, inter­vening negligence of builder would not insulate negligence of manufacturer).

DAMAGES --$20,000 AWARD FOR WR ONGFUL DEATH OF 5-YR.-OLD CHILD --TRIAL-WHETHER PLAINTIFF'S SUMMATION PREJUCICAL-­HELD NOT PREJUDICAL FOR PLAINTIFF'S LAWYER TO COUCH VALUE OF CHILD'S LIFE ENTIRELY IN BIBICAL TERMS --DEFENDANT'S TRUC K DRIVER RAN BOY DOWN IN HIGHWAY -"IT DOES NOT. . . CONSTITUTE REVERSIBLE ERROR TO QUOTE THE GO SPEL ACCORDING MATTHEW" - "THE OBJECTION SEEMS TO BE THAT SINCE (PLAINTIFF'S ARGUMENT) WAS GOOD ENOUGH TO WIN IT WAS BAD, ENOUGH TO BE PRE­JUDICIAL" -- CLAIM AGAINST DEFENDANT EMPLOYER WAS, NEGLIGENT ENTRUSTMENT OF TRUCK TO DRIVER T OTALLY INCOMPETENT TO HANDLE IT -- HELD EVIDENCE OR DRIVER'S PAST DRIVING RECORD, INCLUDING PAST REVOCATIONS OF HIS DRIVER'S

LICENSE WAS PROPERLY ADMITTED & NOT RENDERED EXCLUDABLE BY STATUTE PROVIDING THAT NO EVID­ENCE OF CONVICTION OF A PERSON FOR VIOLATION OF LAW RELATING TO USE OF MOTOR VEHICLES SHALL BE AD­MISSIBLE IN ANY CIVIL ACTION.

Elli ott v. A. J. Smith Contracting Co., 100 N.W. 2d 257 (Mich. 1960) (splendid opinion by Justice Talbot Smith).

AUTO ACCIDENTS - LIABILITY OF LESSEE OF TRUCK­ SWITCHMAN GUARDING CROSSING STRUCK BY SWINGING RIGHT REAR DOOR OF DEFENDANT-LES­SEE'S TRUCK - RES IPSA LOQUITUR PROPERLY APPLIED TO ACCIDENT - RECOVERY FOR IMPAIRMENT OF ABILITY TO WORK O.K. WITHOUT HAV­ING TO SHOW FUTURE LOSS OF EARNINGS - BLACKBOARD ­ NOT ERROR FOR PLAINTIFF'S COUNSEL TO ARGUE $10,000 OR $.90 A DAY FOR 30 YRS. OF FUTURE PAIN --- NO ERROR IN PERMITT ING USE OF BLACKBOARD - "THERE IS NO ARBITRARY RULE AGAINST SUCH USE OF BLACKBOARD." Bone v. General Motors Corp., 322 S.W. 2d 916 (Mo. 959) (in holding res ipsa applicable to the swinging-door accident, ct cited, inter alia, -Adam Hat Stores v. Kansas City, 316 S.W. 2d 594 (Mo. 1958).