A publication of GAPTA, Inc.

(Georgia Association or Plaintiffs' Trial Attorneys)

Vol. 2, No...2 September 1960

PRESIDENT'S COLUMN

Plans are now being made for another Legal-Medico Meeting to be sponsored by GAPTA. In order to have a successful seminar it is necessary for it to be well organi­zed and to have the very best possi­ble talent.

It is well recognized by trial lawyers throughout the country, in rendering professional services the trial lawyers must have a vast know­ledge outside of the field of law. There is seldom a trial of a personal injury case but that medical testi­mony in the trial is of paramount im­portance. Doctors of course, are highly skilled in their field and if lawyers representing both plaintiffs and defendants are to give to the jury all of the facts so there may be a just award, of necessity counsel re­presenting both sides must likewise have at least some medical knowledge in order to properly examine the high­ly skilled physician.

It is highly important to the mem­bers of our association for each to enter wholeheartedly in our endeavors towards the end that the approaching seminar will produce more educational values than anyone in the past. Efforts have been made for each succ­eeding seminar to prove its worth by attracting not only members of GAPTA but likewise any and all lawyers who would take advantage of the opportu­nity to attend the sessions. Primarily, the seminar will be educational in character.

We shall in the future give wide publicity to the seminar and in the next President's Column we hope that the dates of the sessions and like­wise those participating on the pro­gram shall have been chosen.

We wish to call upon all members of GAPTA to lend their efforts to­wards the success of the approach­ing meeting in the hopes that the committee which is now handling the arrangements shall feel its efforts were well worthwhile.

In the next column we hope to have more definite information so that each member may be making plans to attend in order that we shall have a large gathering of lawyers.

We feel very keenly the sponsor­ing of the seminar is one of the best projects sponsored by GAPTA.

Yours for a greater GAPTA,

OSGOOD O. WILLIAMS President

STAFF OF THE VERDICT

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

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

BRIEF BANK

In the last issue of "The Verdict" we synopsized four briefs received by the Brief Bank. We now present four more. Please send yours in!

PAUL J. JONES. Jones & Douglas, Dublin WORKMEN'S COMPENSA'T'ION CASE:

The brief was filed in the Superior Court of Hall County, Georgia after the matter had been appealed by the employer and/or insurance carrier from an adverse ruling by a Single Director of the Workmen's Compensation Board. The main issue in this particular contro­versy was whether the relationship of employer and employee existed between the claimant and the alleged employer.

Briefly, the situation was where A, an employer, employs B as a truck driver at certain wages. Then A leases the truck to C. The question is whet­her B, the employee can look to C for Workmen's Compensation Benefits in the event he is injured in an accident arising out, of and in the course of his employment. The situation was some­what complicated in this particular case by the fact that A, the lessor of the truck, was under a contractual duty to maintain the truck during the period of its lease.

The particular accident here occur­red while B was off in another state on a mission C had sent him on, but the cause of the accident was conn­ected more or less with the mainte­nance of the truck, which was a funct­ion the Lessor was under a duty to perform.

The case was settled before an appeal was made to one of the appell­ate courts, but involved a factual situation which is likely to occur more and more as the leasing of trucks and other equipment becomes more pre­velant.

A.A. (Abe) NATHAN, Brunswick WORKMEN'S COMPENSATION CASE :

De­fendant appealed to the Court of Appeals from an award by Single Dir­ector, Full Board and Superior Court of Glynn County to claimant -.. because of "total temporary disa­bility" and also for l0% specific disability to the right arm of claimant". Grounds of appeal: (1) That facts found by Single Director did not support the a­ward; (2) That there was in­sufficient competent evidence to warrant the Single Director in making the award because from March 30, 1946 - May 14, 1946, claimant refused without cause or excuse to submit to a physical examination by employer's physic­ian, and so during such period, was not entitled to the compensa­tion awarded him in violation of Code 114-503; (3) Insufficient competent evidence to warrant a finding of permanent industrial handicap, as there was no evidence whatever to show any loss of use of arm. Claimant's doctor testified that claimant was more subject to re-injury of the arm due to kaloid and scar tissue formation, but this ­would not meet the total loss test as laid down in Austin Brothers Bridge Company vs. Whitmire, 31 Ga. Appeals 560.

GRACE W. THOMAS, Atlanta WORKMEN'S COMPENSATION CASE:

Held: "Where an employee who is required to store his employer's delivery truck at his home after completing his deliveries and to re­turn the truck to the employer's place of business the following day, is injured in a collision involving such truck while enroute to his home after having completed a per­sonal mission which he undertook after completing his deliveries but before carrying the truck to his home, the injury is one arising out of and in the course of his employ­ment as is contemplated by the Workmen's Compensation Act."

The Single Director, the Full Board and the Superior Court had held for the defendant, but the Court of Appeals reversed in favor of the claimant. Curtis v. Royal Indemnity Co., et al., 101 Ga. App. l58.

CULLEN M. WARD, Ward, Brooks & Williams, Atlanta: NEGLIGENCE of bus operator in failing to open rear door. The case came to the Court of Appeals for the second time, on the overruling of a motion for a judgment non obstante veredicto, and the only issue pre­sented was whether the evidence aut­horized the verdict (See City Council of Augusta v. Hood, 95 Ga. App. 259). The brief cites several Georgia cases to the effect that it is not error to overrule a motion for judgment non obstante veredicto even where the evidence had been In conflict...Brief also cites and quotes several cases to the effect that the carrier owed the plaintiff below the duty of ex­traordinary care...Brief also cites supporting the proposition that after verdict evidence is construed in its most favorable light to the prevail­ing party and that the Appellate Court must construe evidence more strongly in favor of verdict. (Atlanta Transit System Inc., Plain­tiff in Error vs Mrs. A ice V. Allen, Defendant in Error.

CASES OF INTEREST FROM RECENT NACCA NEWS LETTERS

WRONGFUL DEATH -- MEASURING DAMAGES FOR DEATH OF HUSBAND UNDER GEORGIA DEATH ACT -- EVIDENCE -- O.K. TO EXCLUDE EVIDENCE OF SEPARATION OF PLAINTIFF & HER HUSBAND & HIS FAIL­URE TO CONTRIBUTE TO SUPPORT OF WIFE & CHILDREN & OF HER CONTEMPLATION OF DIVORCE. Willitt v. Purvis, 276

F. 2d 129 (5th Cir. 19bO)(at end of 1st trial, in which evidence of husband's failure to support wife & children was erroneously admitted, jury awarded widow $1,750; plaintiff obtained new trial & in 2d trial, in which such irrelevant evidence was excluded , jury awarded plaintiff verdict of $10,000).

DISCOVERY -- AS TO EXISTENCE & LIMITS OF DEFENDANT'S AUTO LIABILITY INSUR­ANCE -HELD, IN CALIFORNIA, RELEVANCY TO THE SUBJECT MATTER RATHER THAN RELEVANCY TO THE ISSUES IS THE STATUTORY TEST -- DISCOVERY OF LIMITS OF DEFENDANT'S AUTO LIABILITY POLICY ENFORCEABLE UNDER INTERROGATORIES SERVED IN PERSONAL INJURY ACTION -­DISCOVERY ACT TO BE LIBERALLY CON­STRUED --IN CALIF., CONTRACTUAL RELATION EXISTS BETWEEN CARRIER & PERSONAL INJURY PLAINTIFF. Pettie v. Superior Court 3 Cal. Rptr. 267 (Cal. App. 1960) (ct relied largely upon Laddon v. Superior Court, 334 P. 2d 638 (Cal. App. 1959) 23 NACCA Law Journal 129-132 (discovery of defendant's malpractice insurance allowed).

ASSAULT & BATTERY --DEFENDANT STRUCK PLAINTIFF WITH BOTTLE IN COURSE OF ARGUMENT ABOUT CHARGES FOR REPAIRS AT DEFENDANT'S AUTO SALES ESTABLISH­MENT -- DAMAGES-- $15,000 AWARD-­SKULL FRACTURE --Plaintiff HELD EN­TITLED TO COMPENSATORY & PUNITIVE DAMAGES -- HEARSAY-- TESTIMONY BY PLAINTIFF'S WIFE THAT PLAINTIFF INDICATED PAIN BY CONSTANTLY HOLDING HIS HEAD IN A CERTAIN MANNER INDICAT­ED BY WIFE WAS NOT HEARSAY - PRESENT WORTH - DAMAGES FOR PAIN & SUFFERING NEED NOT BE REDUCED TO PRESENT WORTH. Morgan v. Mull, 112 S.E. 2d 661 (Ga. App. 1960).

AGAINST INSURANCE COS. -- LIABILITY TO OWN INSURED FOR EXCESS JUDGMENT-­BAD-FAITH REFUSAL TO SETTLE WITHIN POLICY LIMITS --JURY COULD PROPERLY FIND THAT CARRIER GAMBLED WITH ITS INSURED'S RIGHTS BECAUSE OFFER OF SETTLEMENT BY INSURED PARTY WAS NOT SUFFICIENTLY LESS THAN POLICY LIMITS, SO CARRIER "MIGHT AS WELL TAKE THEIR CHANCES, THAT THEY HADN'T A THING IN THE WORLD TO LOSE" --JURY COULD ALSO PROPERLY FIND THAT INSURED WAS NOT GUILTY OF BREACH OF COOPERATION CLAUSE --WAIVER OF POLICY DEFENSES BY INS­URER'S PAYMENT OF POLICY LIMITS TO INJURED PARTY. Tenn. Farmers Mut. Ins. Co. v. Wood, 277 F. 2d 21 (6th Cir. 1960) (2-1) (extensive discuss­ion majority & Dissenting opinions total 25 pages) of evidence sustain­ing jury's finding of bad-faith re­fusal to settle within policy lim­its by insurer).