THE VERDICT

A publication of GAPTA, Inc.

(Georgia Association of Plaintiffs' Trial Attorneys)

Vol. 2, No. 8 October 1960

PRESIDENT'S COLUMN

In the June, 1960 issue of THE VERDICT, the President's Column called attention to the case of Betty S. Cochran v. James Addison Bell, Jr., which was pending in the Court of Appeals, being Case No. 38437. The case involved the quest­ion of whether or not an insurance company could settle a claim with a claimant (the defendant in a suit later filed) without the knowledge or consent of the insured, (the plaintiff in a suit later filed). When the plaintiff (the insured) instituted suit the former claimant now the defendant files a cross action against the plaintiff like­wise seeking damages for personal injuries. In the lower court the defendant was put upon the stand and examined with respect to the settlement he had made with plain­tiff's insurance company and the testimony was that he had settled with the insurance company of the plaintiff, and had signed a release. . Then counsel for plaintiff made a motion to strike the cross-action and the motion was granted. There­upon, counsel for defendant made a motion to strike plaintiff's petition upon the ground the plaintiff was relying upon the release which had been executed by the defendant to her insurer and the Court dis­missed plaintiff's petition.

Though it is well recognized that an insurance company may settle with the claimant without the con­sent or authority of their insured, nonetheless, plaintiff took the position that once they have so settled, the defendant should not be permitted to bring a cross-action.

The plaintiff excepted and took the case to the Court of Appeals of Georgia, and on September 30, 1960, the Court of Appeals affirmed the lower court, holding that the court was correct in dismissing the peti­tion once plaintiff made motion to strike the cross-action.

This decision comes as a great staggering blow to the rights of plaintiffs' actions in this State.

It simply means the insurer can settle claims without the knowledge or consent of its insured and if the insured becomes a plaintiff in an action against the defendant who has previously settled, nonetheless, the defendant may still file a cross­action seeking damages against the plaintiff. Obviously under this decision, the plaintiff is in a helpless position with respect to the crossaction, in spite of the fact admittedly the person filing the cross­action had settled whatever claim he had with the insured's insurance company. Probably no decision by this Court in recent years will be so far-reaching insofar as plaintiffs' rights of actions are concerned in connection with cross-actions.

Many lawyers in the past, because they felt it was improper, have failed to file cross-actions under such circumstances where settlements have been made, but now they are certainly at liberty to do so.

The Court held substantially that the motion to dismiss the cross-action in effect was a rati­fication by the plaintiff of the settlement, holding in part:

". . . but when her counsel elicited from the defendant on cross-examination the fact that all claims against him had been settled and that he had signed a release of all claims against the plaintiff and made these facts the basis of her motion to dismiss the cross action, she was relying upon the release. .. This constitutes ratification as effectively as though the release had been plead­ed in the plaintiff's petition because it was necessarily relied upon in the motion to dismiss."

I do not at all agree with the opinion of the Court in this case, and I hope the case will be certio­raried to the Supreme Court of Geor­gia and relief will be granted in that court.

In the last issue of THE VERDICT, the President's Column pointed out the approaching Legal-Medico Seminar to be sponsored by GAPTA.

We have been in touch with the committee and announcements with respect to the seminar will appear in the next President's Column.

The committee is making every effort possible to make this semi­nar a success. Some lawyers have made very fine suggestions with respect to a general trial seminar in connection with the Legal-Medico in order to deviate somewhat from past strictly Legal-Medico. This is being given serious consideration by the committee in its efforts to attract many lawyers throughout the State to the meeting,

Yours for a greater GAPTA,

OSGOOD O. WILLIAMS President

STAFF OF THE VERDICT

Editor... William W. Daniel

Associate Editor ...... Ross Arnold

BRIEFS IN THE BRIEF BANK

Buckner F. Melton, an out­standing GAPTA member and a member of the Macon Bar has just sent us a copy of the brief he used so successfully in the case of Hinson v. United States. In th1s case the plaintiff made a very substantial recovery under the Federal Torts Claims Act for injuries received as a result of the negligence of an Army officer who, at the time of the collision was driving his private automobile in route to a new station (which he had been to by the Army).

CASES OF INTEREST FROM RECENT NACCA NEWS LETTERS

PRODUCTS LIABILITY -- CALIFORNIA SUPREME COURT DENIES HEARING IN CUTTER CASES -- STRICT LIABILITY APPLIED IN VACCINE CASES -- IN GOTTSDANKER vs. CUTTER LABORATORIES, 6 Cal. Rptr. 320 (Cal. App., July l2, 1960).INTERMEDIATE APPELLATE CT AFF 'D JUDGMENTS FOR PLAINTIFFS, 2 CHILDREN WHO CONTRACTED POLIO SHORTLY AFTER BEING INJECTED WITH SALK VACCINE MANUFACTURED BY DEFENDANT, VERDICTS TOTALING $139,000 FOR CHILDREN & $8,300 FOR THEIR PARENTS - CT HELD PRIVITY WAS NOT REQUIRED FOR WARRANTY RECOVERY IN DRUG CASES -­EVIDENCE HELD TO SUSTAIN RECOVERY FOR BREACH OF BOTH WARRANTY OF FITNESS FOR PARTICULAR PURPOSE & WARRANTY OF MERCHANTABILITY- ON SEPT. 8, 1960 (PLAINTIFFS' COUNSEL was MELVIN M. BELLI).

FAMILY IMMUNITY-INTERSPOUSAL SUITS --DOMESTIC RELATIONS ---PLAINTIFF-WIFE, WHILE RIDING AS PASSENGER WITH HUSBAND IN HIS CAR WAS SERIOUSLY INJURED, RESULTING IN LOSS OF HER COMPETENCY & HER HUSBAND WAS KILLED WHEN HIS CAR COLLIDED WITH 2D CAR--HELD (1ST IMPRESSION CASE), ON MOTION TO DISMISS, WIFE CAN SUE DECEASED HUSBAND'S ESTATE FOR PERSONAL INJURIES-- NO ONE CAN DISPUTE THE CONCLUSION THAT THE PENDING ACTION COULD NOT RESULT IN ANY DOMESTIC DISCORD, SINCE THE WIFE IS BEREFT OF MENTAL COMPETEANCY AND HER HUSBAND IS DECEASED." Long v. Landy, 158 A. 2d 728 (N.J. Super 1960) accord: Johnson v. Peoples First National Bank and Trust Co., 145 A. 2d 716 (Pa. 1958) noted, 23 what NACCA Law Journal 48; Ennis v. Truhitte, 306 S. W. 2d 549 (Mo. 1957), noted 21 NACCA Law Journal 118; cf. 20 id .329; 16 id., 376; & see Brenecke v. Kilpatrick 336 S.W. 2d 68 (Mo. 1960) (unemancipated minor chi Id may recover from her deceased mother's estate for harm caused by mother's auto tort); & cf. Brown v. Selby, 332 S.W. 2d 166 (Tenn. 1960) action maintainable against husband for murder of divorced wife immaterial that proceeds would pass to deceased wife's children (who could not sue their father) under death act; pivotal point: descendent was not "the wife of the murderer"), digested in NACCA News Letter, Vol. 3, No. 8 (July 1960 issue), p. 14).

DEMONSTRATIVE EVIDENCE - ADMISSIBILITY OF COLORED DRAWINGS - IN SLIP & FALL CASE, ARIZONA SUPREME CT HOLDS COLORED DRAWING BASED ON X-RAY PROPERLY ADMITTED WHERE, AS HERE, PROPER FOUNDATION MADE - ADMISSABILITY OF SUCH DRAWINGS GOVERNED BY RULES APPLICABLE TO POTOGRAPHS. Slow Development Co. v. Coulter, 353 P. 2d 890 (Ariz. 1960) (trial ct admitted colored drawing prepared by medical artist which had been copied from X-rays showing fracture sustained by plaintiff; helped jury to understand what Smith-Petersen nail & comminution of fracture looked like; Ct stated: "We believe that the practice of admitting colored drawings such as involved in the instant case, where a proper foundation has been made, is to be encouraged as an aid to the better understanding of the facts by the jury and such graphic exhibitsin most instances give the jury a clearer picture of the facts than can be obtained from the testimony of witnesses") (895).

MANUFACTURERS' LIABILITY - PRODUCTS LIABILITY - BRAKES FAILED ON NEW BUICK - PEDESTRIAN KILLED, OCCUPANTS OF OTHER CARS INJURED, & OFFICE BUILDING DAMAGED AS RESULT OF SUCH DEFECTIVE BRAKES - INDEMNITY - CAR OWNER'S LIABILITY & collision carrier settled claims of injured PARTIES & THEN SOUGHT INDEMNITY FROM AUTO MANUFACTUER & DEALER -- HELD, UNDER APPLICABLE MISSOURI LAW, SINCE CAR OWNER WAS, AT WORST, ONLY SECONDARILY LIABLE, INSURER WAS ENTITLED TO Indemnification FROM AUTO MANUFACTURER UPON SHOWING THAT LATTER WAS PRIMARILY LIABLE FOR FURNISHING CAR WITH FAULTY BRAKES--CT CITES SEVERAL CASES IN WHICH CAR OWNER WHO HAS SATISFIED OBLIGATIONS TO 3D PERSONS BECAUSE OF DEFECTS IN Vehicle IS HELD ENTITLED TO INDEMNITY FROM NEGLIGENT MANUFACTURER OR REPAIRMAN. Allied Mutual Cas. v. General Motors Corp., 279 F. 2d 455 (10th Cir. 1960).

LANDLORD & TENANT--LIABILITY OF LANDLORD TO TENANT'S EMPLOYEE-­LIABILITY OF BAILORS OR LESSORS OF CHATTELS TO 3D PERSONS--SERVICE STATION EMPLOYEE SERIOUSLY INJURED WHEN CAR ROLLED OFF GREASE RACK DUE TO FAILURE OF SAFETY FLAPS ON RACK --IMPROPER MAINTAINCE OF MOVING PARTS OF GREASE RACK AS CAUSE OF ACCIDENT --STANDARD OIL (DEFENDANT) MADE BAILMENT OF GREASE RACK TO ITS CORPORATE LESSEE-OPERATOR - HELD, AFF 'MING JUDGMENT FOR PLAINTIFF FOR $ 150 000, - JURY COULD PROPERLY FIND BAILOR (STANDARD OIL) HAD NEGLIGENTLY FAILED TO PERFORM ITS UNDERTAKING TO MAINTAIN GREASE RACK IN REASONABLY SAFE CONDITION--LAND­LORD'S LIABILITY TO 3D PERSONS ON LEASED PREMISES RECOGNIZED WHERE HE HAS NEGLIGENTLY FAILED TO KEEP HIS UNDERTAKING TO MAINTAIN OR REPAIR-­DAMAGES --$150,000 AWARD FOR "SEVERE COMMINUTED FRACTURES OF THE SKULL" & EXTENSIVE BRAIN DAMAGES" -- NO CON­TENTION BY DEFENDANT ON APPEAL THAT AWARD WAS EXCESSIVE. Standard Oil Co. v. Foster, No. 18096 (5th Cir., July

18, 1960) (as yet unreported).