THE VERDICT

A publication of GAPTA, Inc.

(Georgia Association or Plaintiffs' Trial Attorneys)

Vol. 2, Nos, 9 & 10 November-December 1960

PRESIDENT'S COLUMN

We are pleased to announce that the annual meeting of the Legal-Medico Seminar will be held March 3rd and 4th, 1961, at the Dinkler Plaza Hotel, in Atlanta. You will recall, in previous communications we have promised to give each member of GAPTA the date of this meeting as far in advance as possi­ble, for we feel quite sure the March program will be one of the most informative and educational ones ever sponsored by GAPTA.

The views of many outstanding lawyers have been sought in an effort to put together a program which in at least some respects will differ from others held in the past) one which will stimulate as much interest as possible) and one which will benefit all trial lawyers.

Among many outstanding speakers from throughout the United States will appear on the program, both in the legal and medical fields, Mr. Leo Karlin, President of the NACCA Bar Association, will take part on the program.

Rather than the program being exclusively medical-legal, there will be additional features which will offer the latest information and thinking by local attorneys not only on trial techniques, but non-trial aspects of personal injury work and particular emphasis will be placed on the importance of investigating cases and preparing for trial. Another important feature of the program will be the suggestions of pro­per management of plaintiffs' cases while in the lawyer's office, and also other matters outside of actual court room work which we feel will be of bread and butter use to lawyers handling plaintiffs' claims.

Formal announcements of the meeting, as well as the program above outlined, will be forwarded to each member of GAPTA within the next thirty days.

Yours for a greater GAPTA,

OSGOOD O. WILLIAMS President

STAFF OF THE VERDICT

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

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

GAPTA BRIEF BANK

The "Verdict" now has about a dozen very fine briefs on various subjects; some of these have been synopsized in previous issues. In the next issue we will list the briefs in the bank by subject matter and the GAPTA lawyer members sub­mitting the same. If you have not submitted your brief to the Bank, please send it in! The Bank is for the benefit of GAPTA members, and if you need a brief, it is free to you except for the cost of photo­copying which runs about $.l5 per page. Address all inquiries to Ross Arnold Associate Editor.

The Bank has just received a very fine brief from member E. J. CLOWER of Rome, Georgia, which deals primarily with the subject of reversing the trial court where the damages awarded to the plaintiff were grossly inadequate - a mere $10. The C ourt of A ppeals complimented member Clower highly in referring to his attack on the inadequacy of the verdict as being "astute" (102 Ga. App. 376).

In this case a child 7-years-4-months-old was let out of a car across the street from the West Rome Ele­mentary School by the child's father on a rainy day. While the father was occupied with another child, the minor plaintiff started to cross the road and was struck down by the defendant's approaching automobile, going approxi­mately 20 miles per hour. The child spent six days in the hospital; two additional weeks out of school had a brain concussion, severe head lacera­tions and permanent scars. The jury awarded the magnificent sum of $10 damages. Ground 5 of the plaintiff's motion for a new trial was based on the inadequacy of this verdict. In spite of the fact that the plaintiff had "won" the case below, it could be said that the verdict of $10 was so unjust and inadequate as to clearly justify the inference of gross mistake and undue bias and prejudice on the part of the jury. To support his position the plaintiff in error (plaintiff below), cited the cases of

TRAVERS v. MACON RAILWAY AND LIGHT COMPANY, 19 Ga. App. 15; ANGLIN v.

CITY OF COLUMBUS, 128 Ga. 469; POTTER v. SWINDLE, 77 Ga. 419; McLENDON v.

FLOYD, 59 Ga. App. 507; and MOORE v. SEARS, ROEBUCK & COMPANY, 48 Ga. App. 185. Member Clower graphically pointed out that a $10 verdict was less than $2 per day for each day the child stayed in the hospital, and less than $.50 per day for each day the child either stayed in the hospital or stayed out of school, and emphasis was placed on the fact that out-of-­pocket special damages were over $600 - medical expenses. Interestingly, the ANGLIN case made this remark, "The jury must be taken at its word, when by the effect of its verdict it finds that the city (defendant) was negligent," and, therefore, if the defendant was negligent, it 'Would have to bring in a ver­dict for more than just minuscule damages. Waxing eloquent, member Clower stated that the present case not only was a fai1ure of the application of the principal that such a case must be decided by the "enlightened conscience of an impartial jury", but also on the contrary, "it is pregnant with inferences of bias, prejudice and gross mistake, despite its slender contours."

The case reported in the November 4, 1960 Advance Sheets, 102 Ga. App. 367. The discussion of headnote 2, beginning at page 371, was interesting as to the question of at what age should a child be chargeable with contributory negligence, the case apparently setting down a clear cut rule for the first time. The court stated that in interpreting Code Section 105-204 "the courts have held that children below the age of six years are not chargeable with negligence" or contributory negligence (citing cases), but on the other hand, a child seven and one-half years of age had been held to be capable of con­tributory negligence (citing cases). The question was whether this child, aged seven years, four months, could be guilty of contributory negligence as a matter of law. The court held (page 372) that "where a child is seven years of age, a jury issue is presented as to whether or not the child can be guilty of neg­ligence or contributory negligence. If So apparently a child below six cannot be guilty of contributory negligence, and a child who has reached the age of seven may or may not be guilty of contributory negligence, and the court still left for future decisions, the status of a child of the age between his sixth and seventh birthdays.

A RECENT GEORGIA CASE OF GREAT IMPORTANCE

Alleging Acts of Negligence-­Action against motel owner for in­jury sustained by a patron when attacked in her room by an employee of the motel--the plaintiff's speci­fications of negligence failed to charge the defendant with negligence in retaining an employee with felon­ious tendencies- plaintiff proved without objection that employee had such tendencies, but failed to prove any specifications of negligence alleged in petition. Held: Judgment for plaintiff affirmed. Intro­ducing evidence of the felonious tendencies of the employee of the motel without objection had the effect of amending the pleadings with­in the rule set out in Napiar v. Strong, 19 Ga. App. 401, and therefore, the plaintiff is entitled to recover even though the specific act of negligence which justifies affirm­ance of the decision in the trial court was not set out in the petition.

Note: Under the rule of this case, it would seem to be error for the court to charge the jury that "the plaintiff must recover, if at all upon proof establishing the specific acts of negligence alleged in his petition," where some other act of negligence of the defendant has been proved by the plaintiff without ob­jection on the part of the defendant.

CASES OF INTEREST FROM RECENT NACCA NEWS LETTERS

AUTO ACCIDENTS -- HOST-GUEST STATUTES -- WHAT IS "WILFUL, WANTON MISCONDUCT:" --DEFENDANT-DRIVER SOUGHT TO OVERTAKE & PASS TRUCK IN DENSE FOG, COLLIDING HEAD-ON WITH ONCOMING CAR, INJURING l6-YR-OLD GIRL RIDER-JURY COULD FIND DEFENDANT GUILTY OF WILFUL, WANTON NEGLIGENCE -­

$8,000 AWARD ($3,000 AT 1 ST TRIAL) FOR FACIAL CUTS & ON HER TONGUE, NERVOUSNESS & FEAR OF RIDING IN CARS, WITH PERSONALITY CHANGE, EVIDENCE INDICATING LOSS OF INTELLIGENCE DUE TO BRAIN IN­JURY NOT EXCESSIVE -- PLAIN­TIFF'S PSYCHIATRIST GAVE PLAINTIFF BENDER-GESTALDT & STANFORD­BINET & REVISED STANFORD-BINET & RORSCHACH TESTS & WAS ALLOWED TO TESTIFY THAT HER TEST SCORES WERE OF MORON LEVEL "TYPICAL FOR OR­GANIC DETERIORATION OF INTELLIGENCE." Harkrider v. Cox, 334 S.W. 2d 875 (Ark. 1960).

MENTAL SUFFERING--DEFENDANT'S LIABILITY FOR SUICIDE OF TORT VICTIM--WRONGFUL DEATH-IF DEFENDANT INTENTIONALLY INFLICTS SEVERE MENTAL DISTRESS & SUCH SUFFERING IS A SUBSTANTIAL FACTOR IN BRINGING ABOUT VICTIM'S SUICIDE, A CAUSE OF ACTION FOR WRONGFUL DEATH RESULTS--AS TO NEGLIGENT INFLICTION OF EMOTIONAL DISTURB­ANCE CULMINATING IN SUICIDE WHERE SUCH SUFFERING RESULTS IN UNCONTROLLABIE IMPULSE TO COMMIT SUICIDE, WRONGDOER MAY BE HELD LIABLE FOR VICTIM'S SUICIDE-DEATH & SUICIDE WILL NOT BE A SUPERSEDING CAUSE. Tate v. Canonica, 5 Cal. Rptr. 28 (Cal.

App. 1960) Ct agrees with reasoning of Cauverien v. De Metz, 188 N.Y.S. 2d 627 (Sup. Ct.

1959), noted, 25 NACCA Law Journal l70-l85 (now on press); cf. 11 A.L.R. 2d at p. 758.)

AUTO ACCIDENTS--DEFENDANT TRUCKER NEGLIGENTLY PASSED 2D TRUCK ON

HILL WHEN APPROACHING A SHARP CURVE CAUSING 3d-- ONCOMING TRUCK TO

SLOW ON ICY HIGHWAY SKID, PART­IALLY JACKNIFE & CROSS CENTER LINE COLLIDING WITH PLAINTIFF'S TRUCK WHICH HAD BEEN FOLLOWING DEFENDANT --PROXIMATE CAUSE--FACT THAT DEFENDANT'S TRUCK DID NOT COLLIDE WITH 3D TRUCK OR WITH PLAINTIFF'S VEHICLE OR THAT DEFENDANT'S DRIVER DID NOT EVEN KNOW THAT A COLLISION HAD OCCURRED IS IMMATERIAL WHERE, AS HERE JURY COULD JUSTIFIABLY FIND THAT DEFENDANT'S NEGLIGENCE IN PASSING VEHICLE ON HILL & WHEN APPROACH­ING A CURVE WAS PROXIMATE CAUSE OF COLLISION. Wilsey-Bennett Trucking Co. v. Frost, 275 F.2d 144 (l0th Cir. 1960) (instructive case; shows that, contrary to notion entertained by many insurance adjusters defendant can be liable to plaintiff even tho' defendant's vehicle never strikes plaintiff or his vehicle).

AUTO ACCIDENTS--INJURY FROM PARKED CAR ACCIDENTALLY STARTED UP-­DEFENDANT PARKED CAR ON INCLINE IN PRIVATE DRIVEWAY & CAR STARTED UP WHEN PLAINTIFF ENTERED IT, THROW­ING HER OUT & UNDER CAR-- JURY COULD PROPERLY FIND THAT DEFENDANT HAD FAILED TO USE CARE IN PARKING CAR SO THAT IT WOULD REMAIN STATIONARY & NOT RUN DOWN GRADE. Estridge v. Estridge, 333 S.W. 2d 758 (KY. 1960) (accord: Prager v. Israel, 98 P. 2d 729 (Cal.) (see also l6A.L.R. 2d 979 and Lewis v. Wolk, 228 S.W. 2d 974 (Ky.) (car parked on steep grade in street ran away down hill

& struck pedestrian on sidewalk).

AGAINST TAVERN KEEPERS-ASSAULT UPON PLAINTIFF BY INTOXICATED PATRON

--DAMAGES--BRAIN INJURY ADVERSELY AFFECTING PLAINTIFF'S SPEECH & PERSONALITY & 3 SENSES OF HEARING SMELL & TASTE-"LOSS OF WELL-BEING IS MUCH A LOSS AS AN AMPUTATION"-"LOSS PLAINTIFF INJURED IN MOTOR VEHICLE

OF ENJOYMENTS" HELD COMPENSABLE--EXCELLENT OPINION BY JUSTICE MUSMANNO ON WHAT IT MEANS TO LOSE SENSE OF HEARING, SMELL & TASTE--$16,80l AWARD UPHELD ($423 MEDICAL; $1,378 LOST WAGES --FUTURE LOST WAGES NOT PLEADED--$15,000 FOR PAIN, SUFFERING, & INCONVENIENCE")"--ALL THESE SUFFERINGS AND IMPAIRMENTS ARE AS MUCH THE DIRECT RESULT OF THE TRAUMATIC FISTS (OF THE INTOXICATED PATRON) AS IF THEY HAD ­FOLLOWED ONE'S BEING CRUSHED BENEATH THE SOLID WHEELS OF A BEER WAGON. AS RECOVERY IS ALLOWED TO ATHELTIC MEN FOR WHAT THEY SUFFER IN BEING UNABLE TO PARTICIPATE IN SPORTS THEY LOVE--SWIMMING RUNNING HANDBALL DANCING TENNIS, ETC .--SO ALSO WILL THIS COURT AFFIRM COMPENSATION AWARDED BY A JURY FOR THE LOSS OF ENJOYMENTS HERE­ IN ENUMERATED AND DESCRIBED"--EXCELLENT DECISION ALSO ON TAVERN OWNER'S DUTY TO CONTROL INTOXICATED PERSONS SO AS TO PROTECT OTHER PATRON­ INVlTEES. Corcoran v. McNeal, 161 A. 2d 367 (Pa. 1960).

OCCUPIERS' LIABILITY--OF LANDOWNER TO VISITING AUNT OF OWNER'S CARE­TAKER'S WIFE--INVlTEE OR GRATUITOUS LICENSEE? --WHERE CARETAKER RECEIVED OCCUPANCY OF HOME ON DEFENDANT'S PROPERTY AS PART OF REMUNERATION FOR HIS SERVICES WITH RIGHT TO RECEIVE VISITORS CARETAKER'S WIFE'S AUNT VISITING CARETAKER WAS A GRATUITOUS LICENSEE RE CARETAKER BUT AN INVITEE RE DEFENDANT LANDOWNER--PLAINTIFF FELL INTO HOLE WHILE CROSSING SMALL BRIDGE ON DEFENDANT'S PREMISES AT NIGHT-­DEFENDANT, TO PLAINTIFF'S KNOWLEDGE, HAD ORIGINALLY PLACED LANTERNS & BARRICADES AROUND HOLE BUT REMOVED SAME WITHOUT WARNING PLAINTIFF-HELD JURY COULD FIND SUCH REMOVAL WITHOUT WARNING WAS NEGLIGENCE BY - LANDOWNER--CONTRIBUTORY NEGLIGENCE--SINCE PLAINTIFF HAD A "FAIRLY COM­PELLING REASON" FOR WALKING IN A PLACE WHICH WAS DARK, BUT NOT UTTERLY DEVOID OF LIGHT JURY COULD FIND SHE WAS FREE OF CONTRIBUTORY NEGLIGENCE. Denver v. Sharpless, 159 A. 2d 7 (pa.

Super. 1960).

IMMUNITES - GOVERNMENTAL IMMUNITY - PLAINTIFF INJURED IN MOTOR VEHICLE ACCIDENT INVOLVING FIRE TRUCK OWNED BY 1 ST CITY WHILE IT WAS RESPONDING TO CALL BY 2D CITY TO FIGHT FIRE IN 2D - NEITHER CITY LIABILE BECAUSE OF DOCTRINE OF SOVEREIGN IMMUNITY - QUESTION: WHETHER IMMUNITY OF CITY EXTENDS TO ITS SERVANTS -- CONSTITUTIONALITY OF STATUTE PURPORTING TO EXEMPT CITY-EMPLOYEES FROM LIABILITY FOR HARM CAUSED BY THEM WHILE USING FIRE APPARATUS OUTSIDE OF CITY LIMITS - SUCH STATUTE HELD VIOLATIVE OF CON STITUTIONAL PROVISIONS THAT ALL CTS SHALL BE OPEN. THAT EVERY PERSON FOR INJURY DONE HIM SHALL HAVE A LEGAL REMEDY & IF DEATH WERE INVOLVED VIOLATIVE OF SECTION AUTHORIZING RECOVERY FOR WRONGFUL DEATH. Happy v. Erwin, 330 S.W. 2d 412 (Ky. 1959) (ct. relied upon Ludwig v. Johnson 49 S.W. 2d 347 (Ky. 1932) (statute permitting recovery by guest against host driver for intentional injury only held unconstitutional as in conflict with constitutional provisions preserving right of action for injuries caused by negligence).

LUNG CANCER--DEATH--STATUTE OF L1MI­TATIONS--TRIAL CT REFUSES TO DISMISS, ON GROUND OF LIMITATION, LUNG CANCER DEATH ACTION AGAINST MANUFACTURER OF OLD GOLD CIGARETTES. Mitchess V. American Tobacco Co., 183 F. Supp. 406 (M.D.Pa. 1960) (decedent who died of bronchogenic carcinoma in 1958 admittedly did not smoke Old Golds after 1951; mfgr invoked Pa. 2-yr. statute of limitations; in denying defendant's motion to dismiss for limitations, ct pointed out that Pa. statute requires action to be brought within 2 years from time "when the in­jury was done, II and relied upon Ayers v. Morgan l54 A. 2d 788 (Pa. 1959) which held that the "injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable"; where plaintiff cannot know that a negligent act has been committed, the negligence continues, for purposes of statute of limitations, until such time as plaintiff learns or by exercise of reasonable dili­gence could have learned of the negligent act) (for note on Ayers case, see NACCA News Letter, Vol. 3 No.3 (Jan. 1960) P. 13 & 25 NACCA law Journal 131-138 (now on press).

SURVIVAL STATUTES--LIBERAL CON­STRUCTION OF SUCH STATUTES-­WRONGFUL DEATH--CAUSE OF ACTION FOR WRONGFUL DEATH SURVIVES DES­PITE PRIOR DEATH OF TORTFEASOR-­ DRIVER OF CAR, IN WHICH PLAINTIFF'S 17-YR.-OLD DAUGHTER WAS RIDING AS PASSENGER WAS KILLED IMMEDIATELY IN COLLISION WITH TRAILER-TRUCK- PLAINTIFF'S DAUGHTER DIED ABOUT A WEEK LATER--HELD UNDER UTAH SURVIVAL STATUTE FATHER'S CAUSE OF ACTION FOR WRONGFUL DEATH SURVIVED AGAINST TORTFEASOR'S ESTATE & COULD BE ASSERTED AGAINST DRIVER'S ADMINIST­RATOR--PROGRESSIVE CONSTRUCTION, FOR CTT HOLDS THAT CAUSE OF ACTION NOT IN EXISTENCE IT TIME OF TORTFEASOR'S DEATH (CLAIM FOR GIRDS WRONGFUL DEATH) DOES NOT ABATE WITH HIS DEATH--REASONING & RESULT REACHED IN INSTANT CASE SUPERIOR TO THAT REACHED IN FRETZ v. ANDERSON 300 P. 2d 642 (Utah 1956) (PLAINTIFF COLLIDED WITH DECEDENT'S OVERTURNED CAR IN HIGHWAY, HELD EVEN IF DECEDENT WAS INITIALLY NEGLIGENT NO LIABILITY WOULD SURVIVE AGAINST HIS ESTATE IF DECEDENT WAS DEATH AT TIME OF IMPACT, SINCE EFFECT OF SURVIVAL STATUTE WAS MERELY TO PRESERVE OR PERPETUATE LIABILITIES EXISTING AT TIME OF WRONGDOER'S DEATH)-INSTANT DECISION WRITTEN "NOTHWITHSTANDING" ANYTHING SAID IN FRETZ CASE. Meads v. Dibblee, 350 P. 2d 853 (Utah 1960).

DAMAGES--WRONGFUL DEATH OF HUSBAND-­COLLATERAL-SOURCE RULE--EVIDENCE OF WIDOW'S ENGAGEMENT OR REMARRIAGE HELD INADMISSIBLE FOR PURPOSE OF REDUCING DAMAGES PAYABLE BY TORTFEASOR-SEE 24 NACCA LAW JOURNAL 219,229-33-­AUTO ACCIDNETS--DEATH OF HUSBAND IN AUTO-TRUCK COLLISION--PRESUMPTION OF NEGLIGENCE ARISES FROM EVIDENCE

THAT DEFENDANT'S TRUCK WAS IN WRONG LANE AT TIME OF COLLISION. Hightower v. Dr. Pepper Bottling Co. of Shreveport, 117 So. 2d 642 (La. App. 1960). .

AUTO ACCIDENTS--EVIDENCE-DEATH OF 6-YR-OLD BOY--AWARD OF $8,076--EXPERTS (SHERIFF & POLICE Lt.) HELD QUALIFIED TO GIVE OPINION AS TO SPEED OF DEFENDANT'S CAR, BASED UPON SKID MARKS LOCATION OF & DAMAGE TO CARS & INDEPENDENT TESTS. Foreman v. Heinz, 34 P. 2d 451 (Kan. 1959).