THE VERDICT

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

Vol. 2, No.3 May 1960

PRESIDENT'S COLUMN

GAPTA MEETING IN SAVANNAH

Please, do not forget the annual meeting or the Georgia Association of Plaintiffs' Trial Attorneys which will be held at 2:30 P.M. Friday, May 27, in the Royalty Room of Hotel DeSoto in Savannah. We have been fortunate in the past in having a large number or GAPTA members attend the annual meeting or the Georgia Bar Association; however, the attendance at the GAPTA meeting has not been as great as we would like for it to be. The officers for the ensuing year will be elected at that time. Please, be sure to be present and remind any other GAPTA members you see to attend the meeting.

RECENT LEGISLATION

The following bills were passed by the State Legislature and are very important to members or GAPTA:

Act No. 521 (H.B. 315), Ga. Laws, 1960, p. 174, signed by the Governor on March 7,1960, provides that in the trial of civil suits for per­sonal injuries, counsel shall be allowed to argue the worth or mone­tary value or pain and suffering to the jury. The Act provides, "In the trial of a civil action for personal injuries, counsel shall be allowed to argue the worth or monetary value or pain and suffering to the jury. Provided, however, that any such argument shall conform to the evidence or reason­able deductions from the evidence in said case."

Act No. 751 (H.B. 974), Ga. Laws, 1960, p. 1037, signed by the Governor on March 17,1960, provides that in the trial of any civil suit, counsel for either party shall be permitted to use a black board and models or similar devices in connection with his argument to the jury for the purpose or illustrating his contentions with respect to the issues which are to be decided by the jury; provided that such counsel shall not in writing present any argument that could not properly be made orally."

Act No. 661, Ga. Laws, 1960, p. 968, provides that an illegitimate child dependant upon his mother shall have

a right of action for the wrongful death of his mother.

The pain-and-suffering and black­board bills have been used by the law firm or which I am a member.

They were used the last week in March in the Fulton Superior Court here, and the Court, after having the Act cited to it, permitted counsel for the plaintiff to argue pain and suffering by the day and to use a black board for the purpose of stating the conten­tions of the plaintiff with respect to the value or pain and suffering.

RECENT VERDICTS AND SETTLEMENTS OF NOTE

One of Atlanta's leading defense firms, representing a plaintiff in a personal injury action in Federal Court, during the trial of the case settled the case for $150,000.00. It was a death case involving a man 37-years-old, who was earning $18,000 a year at the time, of his death.

Attorneys in Savannah, one of whom is a member of GAPTA, recently ob­tained the highest verdict ever given in that county in a personal injury case in the amount of $60,000.00.

Attorneys in Albany recently obtain­ed a verdict in the amount of $65,000.00, and these same attorneys, in association with GAPTA Vice-Presi­dent Gerald Kunes, in a death case tried in Tift County, obtained a verdict in the amount of $35,000.00, which is the highest personal injury verdict which has been rendered in Tift County.

In a pitfall case recently tried in Atlanta, members of GAPTA obtained a verdict in the amount of $50,000.00.

GEORGIA BAR JOURNAL

In the February, 1960, issue of the Georgia Bar Journal (22 Ga. Bar J. 297), E. J. "Sandy" Clower, a member of GAPTA from Rome, Georgia, wrote an interesting. article entitled, "The Right to Open and Conclude the Argument in Tort Cases."

I recommend this article to all the plaintiffs' attorneys in Georgia. It was an eye-opener for me. I thought when the defendant did not put up any evidence he had the right to open and conclude. From reading this article, I see that is not, correct.

NACCA NEWS LETTER

I am still more than ever impressed with the NACCA News Letter. In the April, 1960, issue, which I have just received, there are three cases directly in point with cases which we have in our office. The News Letter alone is worth the $20.00 dues paid to the National Association.

REARER'S DIGEST ARTICLE, MARCH, 1960

This article was certainly unfair to attorneys in general, directing its criticism to specific instances of the abuse of the contingent fee system. I now quote from Tom Lambert, Jr., former Dean of Stetson Law School, instructor at various lead­ing law schools in the East, and now currently Editor-in-Chief of the NACCA Bar Association: "The contin­gent-fee system is the poor man's key to the Court House door." To do away with the contingent fee system is in effect to deny the poor the right to litigate their case and to deny them counsel. No mention is made in the article in the Reader's Digest of the doubtful liability case where the attorney for the plaintiff spends many laborious hours in preparation, inves­tigation, legal research, and then has to carry the case upon appeal or ­demurrer; if, at trial, he wins, the case is appealed, and if he loses, he has to appeal again, and often he gets nothing for his labor and ability.

Marcus Calhoun, a charter member of GAPTA, has been nominated for Vice President of the Georgia Bar Association. While your President was nomi­nated also, it was necessary for me to withdraw my name because of the heavy loan which I am now carrying. Marcus Calhoun is well qualified for job by virtue of his past experience his Georgia Bar Association activities and will make us an excellent Vice President. It is my belief that if all members of GAPTA would take an active part in the Georgia Bar Asso­ciation, it would tend to improve the organization.

I hope to see all of you at the Georgia Bar Association in Savannah, May 26-27.

Yours for a greater GAPTA,

CULLEN M. WARD President

STAFF OF THE VERDICT

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

Associate Editor Ross Arnold

GEORGIA WORKMEN'S COMPENSATION CASES OF INTEREST

Where a Georgia employer employed a Georgia resident in Ohio, through an agent of the Georgia employer, to drive a truck loaded with freight from Ohio to Georgia, and the employee was killed in the course of his employment in Kentucky while en route to Georgia, it was held by the Supreme Court that recovery could be had as the terms of the Georgia Workmen's Compensation Act had been "accepted" - by no notification to the contrary - as provided in Code Section 114-201, even though the express requirements set forth in Code Section 114-411 that "the contract of employment" be "made in this State" (Georgia) had not been met. Martin v. Bituminous Casualty Co., 215 Ga. 476, III S.E. 2d 53. This was a 4-3 decision, after a 3-3 split in the Court of Appeals and after the single director, the full Workmen's Compensation Board and the Superior Court had denied com­pensation. In dissenting, Chief Justice Duckworth said, "The dis­position of the case is a most un­happy and unsatisfying situation," Since the full bench decision in Slaten v. Travelers Insurance Co.,

197 Ga. 1, should control. This decision would appear to "stretch" the Georgia Workmen's Compensation law as far beyond the State boundaries as it is stretchable, and we probably can look for further legal unrest in this area.

Peddler as Employee

A "peddler" for his own account is not an employee for purposes of Workmen's Compensation. The

Supreme Court held that there was no "payment of wages" and thus no competent evidence to support the finding by the Workmen's Compensa­tion Board that the deceased had been an employee. The single director had found that the de­ceased had been changed from employee to "semi-peddler" to "ped­dler" in order to evade liability under the Workmen's Compensation Act. Atlantic Company v. Moseley, et al., 215 Ga. 530.

Burden of Proof

"Where a claim for compensation is filed, the burden is upon the claim­ant to show that the injury arose out of and in the course of employment." Sears Roebuck & Co. v. Wilson , 215 Ga. 746, 750 .

Change of Award After Agreement by Employer & Employee

Where approved by the Board, such award "cannot be thereafter amended, vacated, modified, or set aside by agreement of the parties or otherwise by any act of the parties . . . The sole method whereby the award may be modified or terminated is upon a review by the Board upon an application on the ground of a change in condition." Sears Roebuck & Co. v. Wilson , 215. Ga. 746, 750.

However, where employer and employee agreed that employee suffered no in­jury and the Workmen's Compensation Board rendered an award denying com­pensation, based on such stipulation, and the employee did not appeal the award within the time provided by law, the Workmen's Compensation Board has no power and authority thereafter to entertain another appli­cation by the employee for compensa­tion, based upon alleged change in condition of employee. C arney v.Travelers Insurance Company, 101Ga. App. 42.

Where evidence adduced on a hearing before the Workmen's Compensation Board shows that the condition of injured member has improved since former award fixing the amount of ability to the same, an award of additional compensation to the claim­ant is unauthorized. Brown v. General Accident Fire & Life Assurance Corp., et a1 , 101 Ga. App. 208 (5).­

However, the fact that the claimant is earning as much at the time of the hearing as at the time he sustained the injury resulting in the loss of the specific member or the use thereof does not debar the claimant's right to compensa­tion for such disability. Ibid ., Headnote 2.

Pain as Compensable Item Under Georgia Workmen's Compensation Law

The case of Williamson v. Aetna Casualty & Surety Company, et al , 101 Ga. App. 220, deals with the question of whether pain produced by injury to a specific member which is so great on use of that member as to substantially limit the amount of work a man may do may be considered a partial loss of use of the member. Under all of the testimony of the case, the claimant could no longer stand, crawl or work in hot places as he was able to do before his injury, and further testimony indicated specific disability resulting from "pain interfering with the range of motion." The single director did not recognize the elements of pain and suffering or of increased discomfort and disability in performing the labor for which wages 8re paid after the injury, relying on the proposition that in cases of total and partial disability, the measure of the award is the decrease in economic return, and pain and suffering can­not be considered. See American Mutual Liability Insurance Co. v. Hampton , 33 Ga. App. 476 (I), 127 S.E. 155, and Hall v. St. Paul-Mercury Indemnity Co ., 96 Ga. App. 567, 101 S.E. 2d 94). In a well-reasoned decision, the Court stated (page 224), "We cannot distinguish between disability to a member and loss of use of a member," and went on to indicate that the loss of use of a member due to pain was the same as disability of a member by the accident. Thus, in continuing, the Court stated (page 224), "Pain itself is not compensable. Dis­ability is not compensable under Code (Ann.) )( )(114-404 and 114­-405 regardless of pain except as there is a decrease in monetary return. Under Code (Ann.) I 114-406 also, pain is not itself compensable, but where it is so severe that disability results, then the fact that _ the disability, or loss of use, results because the human mechanism must cease the use rather than bear the pain, a compensable loss of use results."

Here the employee had received acid burns which, though healed, left him with a resultant painful itching con­dition on his lower legs and ankles diagnosed as chronic eczematoid der­matitis. Again, and quite logically, the Court stated (page 224), "Nor can we distinguish between disability re­sulting from injury to the skin of the leg and disability resulting from injury to the bones, nerves, or mus­cles, since the skin, as well as the other leg tissues, is essential to the existence of this member."

- Contributed by Ross Arnold

GEORGIA CASES FROM RECENT NACCA NEWSLETTERS

AUTO ACCIDENTS - WRONGFUL DEATH DRIVER KILLED WHEN HIS CAR COLLIDED WITH REAR OF DEFENDANT'S TRACTOR­TRAILER STOPPED ON HIGHWAY AFTER COLLISION WITH ANOTHER CAR - VIOLA­TION BY DEFENDANT OF STATUTE PROHIBIT­ING PARKING WITHIN 12' OF CENTER LINE OF HIGHWAY - WHETHER DECEDENT GUILTY OF CONTRIBUTORY FAULT - INTOXICATION - FACT THAT SEVERAL BEER CANS WERE FOUND IN DECEDENT'S CAR INSUFFICIENT ­TO RAISE JURY QUESTION AS TO DECED­ENT'S CONTRIBUTORY NEGLIGENCE. Brock v. Avery Co., 99 Ga.App. 881, 110 S.E. 2d 122 (1959) (judgment denying plaintiff new trial, held, rev'd).

AGAINST POWER COS. - ELECTROCUTION ­DEATH OF 14-YR.-OLD BOY WHEN WELL PIPE HE WAS HELPING TO HOLD DURING CLEAN­ING OPERATION TOUCHED UNINSULATED HIGH VOLTAGE LINE, 25' ABOVE WELL HOUSING - HELD, REVERSING JUDGMENT FOR DEFENDANT, IN VIEW OF TESTIMONY THAT MOST FAMILIES IN AREA HAD WELLS OF AVERAGE DEPTH OF 40' & THAT WELLS WITH ELECTRIC PUMPS HAD PIPES WHICH REQUIRED REMOVAL & CLEANING FROM TIME TO TIME, JURY QUESTION WAS RAISED RE WHETHER MAINTENANCE OF UNINSULATED H IGH VOLTAGE WIRES DIRECTLY OVER WELL HOUSING CONSTITUTED SUCH A HAZARDOUS ENGINEERING PRACTICE AS TO CHARGE DEFENDANT WITH GENERAL NEGLIGENCE. Gilbert v. Ocmulgee Electric Membership Corp., 100 Ga. App. 638,112 S.E. 2d 207 (1959) (see 23 NACCA Law Journal 80-87).

AUTO ACCIDENTS - VICARIOUS LIABILITY - "FAMILY PURPOSE DOCTRINE" - OWNER'S SON PERMITTED FRIEND TO DRIVE CAR WHILE SON WAS RIDING IN IT, &: FRIEND NEGLIGENTLY CAUSED CAR TO COLLIDE WITH PLAINTIFF'S CAR, - PLAINTIFF'S PETITION HELD TO STATE CAUSE OF ACTION AGAINST FATHER-OWNER PETITION NOT INSUFFICIENT ON GROUND OWNER'S SON COULD NOT DELEGATE AU­THORI TY TO DRIVE CAR TO FRIEND. Myrick v. Alexander, 112 S.E. 2d 697 (Ga. App. 1960) ,(Ct relied upon Cohen v. Whiteman, 75 Ga. App. 286, 288,43 S.E. 2d 184,185, said to be "literally on all fours" with i nstant case, quoting from Cohen as follows: "A father who keeps and maintains, an automobile for the use, comfort, pleasure and con­venience of his family, including a minor son, is responsible for injuries resulting from negligence of a third person whom the son permits to drive, where the son remains in the automobile and re­tains control, authority and direction over it, and where the automo­bile is still being used in fur­therance of the purposes of a family car").

FOREIGN CASES OF INTEREST FROM RECENT NACCA NEWS LETTERS

SUBSTITUTED SERVICE ON FOREIGN CORPORATION - EXPLOSION OF REVOL­VER, MADE IN MASSACHUSETTS, INJUR­ING POLICE OFFICER IN CALIFORNIA ­ RETENTION OF MFGR'S REPRESENTATIVE WHO PROMOTED SALES & SERVICED DEALERS' ACCOUNTS IN CALIF., HELD TO SUBJECT MASS. CORPORATION TO JURISDICTION OF CALIF. COURTS ­- BUSINESS ADVANTAGES OF MASS. ARMS MFGR. FROM RETAINING REPRESENTATIVE IN CALIF. SUFFICIENT TO CONSTITUTE REPRESENTATIVE "GENERAL MANAGER" FOR PURPOSES OF STATUTORY SERVICE OF PROCESS ON FOREIGN CORPORATION. Cosper v. Smith & Wesson Arms Co., 346 P.2d 409 (Cal. 1959) (see 20 NACCA Law Journal 150,372; 22id. 424).

AUTO ACCIDENTS - SUDDEN BRAKE FAILURE ON TRUCK -TO AVOID COLLISION WITH CARS AHEAD, TRUCK DRIVER TURNED LEFT TO ENTER VACANT LOT & COLLIDED WITH ONCOMING MOTORIST - EVIDENCE OF PRIOR NEGLIGENT REPAIR & INADEQUATE INSPEC­TION OF BRAKES - EMERGENCY DOCTRINE A SHIELD FOR INNOCENT, NOT GUILTY, HENCE NOT AVAILABLE TO DEFENDANT. District of Columbia v., Tilghman, 157 A., 2d 629 (D.C. Mun. App. 1960) (It. due' care in an emergency will not insulate an actor from liability for the consequences of the negli­gence that helped to bring the emergency about"').

AUTO ACCIDENTS - GUEST STATUTES - WHO IS A GUEST? - Plaintiff, SERVICE STATION OWNER, WAS BEING TRANSPORTED TO DEFENDANT CAR-OWNER'S PLACE OF BUSINESS IN ORDER TO TAKE CAR BACK TO SERVICE STATION TO BE WASHED, GREASED & SERVICED - HELD, SERVICE STATION OWNER NOT WITHIN GUEST STATUTE - TRIAL CT UPHELD IN RULING THIS NOT' A GUEST CASE - GUEST ACT TO "BE ­ STRICTLY CONSTRUED IN THE DETERMINA­TION OF WHETHER OR NOT THE PASSENGER WAS A GUEST." Gregory v. Otts, 329 S.W. 2d 904 l Tex. Civ. App. 1959).

OCCUPIERS' LIABILITY - ACTION BY PATRON OF BAR AGAINST TAVERN KEEPER ­SLIP & FALL ON WET TOILET PAPER IN RESTROOM - BROKEN LEG - AFTER DISCHARGE OF JURY BECAUSE OF INABILITY TO AGREE, VERDICT WAS DIRECTED FOR DEFENDANTS ­HELD, ERROR TO DIRECT FOR DERENDANTS PLAI NTIFF HAD 4 DRINKS BETWEEN 5:30 &: 8:00 P.M. &: TESTIFIED SHE SAW NO ONE ENTER WOMEN'S RESTROOM DURING THAT PERIOD - JURY COULD FIND FAILURE TO INSPECT DURING THAT 2 1/2-HR.

PERIOD WAS NEGLIGENT - PLAINTIFF WAS NOT CONTRIBUTORILY NEGLIGENT AS A MATTER OF LAW - "IF (PLAIN­TIFF'S) NEED TO RELIEVE HERSELF WAS SO PRESSING THAT SHE WAS UNABLE TO DELAY LONG ENOUGH TO NOTIFY THE (DEFENDANTS) OF THE CONDITION AND HAVE THEM CLEAN UP THE RESTROOM FOR HER, OR WHETHER SHE SHOULD HAVE SOUGHT OTHER FACILITIES IN ANOTHER PLACE, WERE QUESTIONS FOR THE JURY" - RULE OF "MOMENTARY FORGETFULNESS OF KNOWN DANGER NOT NECESSARILY CONTRIBU­TORY NEGLIGENCE - KNOWING OF A DANGER IS NOT CONTRIBUTORY FAULT ISSUE IS WHETHER PLAINTIFF USED DUE CARE UNDER CIRCUMTANCES. Shaw v. Colonial Room, 1 Gal. Rptr. 28 (Cal App. 1959).

AGAINST ARCHI TECTS - BOILER EXPLOS­ION - WRONGFUL DEATH - ARCHITECTS HELD LIABLE FOR DEATH OF PLUMBING SUBCONTRACTOR'S EMPLOYEE IN EX­PLOSION OF BOILER IN HOT WATER SYS­TEM IN BUILDING UNDER CONSTRUCTION- RES IPSA LOQUITUR HELD APPLICABLE - CONFORMITY TO SUB-STANDARD CUSTOM NO DEFENSE - CT EXTENDS RULE IN MARINE INSURANCE CO. V. STRECKER, 234 La. 522, 100 So. 2d 493 (HOLD­ING BUILDING CONTRACTOR LIABLE TO 3RD PERSONS DESPITE ABSENCE OF CON­TRACTUAL PRIVITY FOR HARM SUSTAINED AFTER ACCEPTANCE OF WORK BY OWNER) TO ARCHITECTS - ABSENCE OF PRESSURE ­RELIEF VALUE IN DOMESTIC HOT WATER SYSTEM - AS INSTALLED, "THE BOILER WAS A TIME-BOMB INEVITABLY TO EX­PLODE" - ARCHITECTS "BLINDLY APPROVED" SUBCONTRAETOR'S SHOP DRAWINGS - HELD, A PROXIMATE CAUSE OF SUB CONTRACTOR'S FAILURE TO INSTALL PRESSURE-RELIEF VALVE - 30-YR.-OLD DECEDENT DIED DAY AFTER EXPLOSION - 90% 3D-DEGREE BURNS - $15,000 FOR PAIN & SUFFERING ­$42,983 to WIDOW; $19,300 TO 5 1/2­YR.-OLD DAUGHTER; $21,OOO TO 2 1/2­YR.-OLD SON. Day v. National-U.S. Radistor Corp., 117 So.2d 104 (La.

App. 1960) (important, well-reasoned case).

CRIMINAL CONVERSATION - IN 1ST-IMPRES­SION CASE, PA. SUPREME COURT ADOPTS MAJORITY RULE & HOLDS WIFE CAN MAIN­WAIN ACTION FOR CRIMINAL CONVERSATION AGAINST OTHER WOMAN WITH WHOM HER HUSBAND COMMITTED ADULTERY - WIFE ENTITLED TO BOTH COMPENSATORY & PUNITIVE DAMAGES. Karchner v. Mumie, 156 A.2d 537 (Pa. 1959).