THE VERDICT

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

Vol. 3, No. 3 & 4 April-May 1961

PRESIDENT'S COLUMN

The annual meeting of the Georgia Association of Plaintiff's Trial Attorneys will be held at the Corsair Motel, Jekyll Island, on May 24, 1961, from 4:00 to 6:00 P.M. o'clock.

All GAPTA members are urged to be present at that time as officers for the ensuing year will be chosen at this meeting. The officers to be elected will include a president, vice president, secretary, treasurer and editor of THE VERDICT.

Following this meeting, there will be a cocktail party sponsored by friends of Cullen M. Ward, honoring him upon his nomination for the office of Vice President of the Georgia Bar Association.

Mr. Ward is a past President of GAPTA, and at a recent meeting of the Board of Governors of the Georgia Bar, was nominated for the office of Vice President of the Georgia Bar Associ­ation. He is unopposed for this office.

We would urge all members immedi­ately following registration on May 24th to gather at the Corsair Motel, as it is our hope a large number of mem­bers would be present to participate in the selection of officers. Moreover, there will be other important matters taken up before the association during this session.

This is the last letter which you shall receive from your present President. I wish to state most emphatically, it has been a source of much pleasure that I have had the opportunity to serve as President of GAPTA during the past twelve months.

I am proud to state our organization has grown numeri­cally in the past twelve months, and also a large number of lawyers have affiliated them­selves with the national organization.

As indicated in previous letters from your President, we feel the Legal-Medical Seminar conducted in Atlanta on March 3rd and 4th was an outstanding success. We, therefore, can look towards the coming year with much encour­agement that GAPTA will continue to effectively serve plaintiff's lawyers in Georgia.

It shall be my purpose to cooperate with the officers of the incoming administration, whoever they may be, in working towards an even greater organization during the, next twelve months.

Be sure and remember the date of our annual meeting, at which time our officers will Deselected, namely, May 24, 1961, from 4:00 to 6:00 P. M. o'clock, Corsair Motel, Jekyll Island.

Yours for a greater GAPTA,

OSGOOD O. WILLIAMS President

STAFF OF THE VERDICT

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

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

BRIEF BANK

In addition to the excellent briefs previously received and reported upon, the Brief Bank has recently been augmented by trial memoranda of law which should prove most helpful to our members.

JAMES H. FORT of Columbus has been kind enough to supply the Bank with a memorandum of law supporting recovery by a military man of medi­cal expenses, even though medical treatment is furnished to him by the military service. ­

BENJAMIN B. GARLAND of Jackson has enhanced the Brief Bank by a memorandum supporting the contention that it is not necessary for a party to refund or make restitution of funds paid to him before he could repudiate an alleged contract on the ground that his signature thereto was obtained by fraud.

D. R. JONES of Atlanta has favored the Brief Bank with a trial brief on all state statutes and City of Atlanta ordinances that the firm of Wotton, Long & Jones was "able to find" on stop signs, citing two cases that could well be helpful.

When are YOU going to send a brief or memorandum of law to the Brief Bank? How about putting one in the mail right NOW addressed to Mr. Ross Arnold, 904 Grant Building, Atlanta 3, Georgia.

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CASES OF INTEREST FROM RECENT NACCA NEWSLETTERS.

LIABILITY INSURANCE - OMNIBUS CLAUSE COVERAGE -- POLICY PROVISIONS TO BE CONSTRUED STRICTLY AGAINST INSURER-­ NEW JERSEY SUPREME COURT ADOPTS LIBER­AL "INITIAL PERMISSION" RULE -­OWNER'S HUSBAND LENT CAR TO NEXTDOOR NEIGHBOR TO VISIT HER SICK MOTHER -­AFTER VISITING HER MOTHER, NEIGHBOR MADE ROUND OF SEVERAL TAVERNS & THEN, WHILE DRIVING HOME, NEGLIGENTLY CAUSED ACCIDENT -- HELD, AFF 'MING JUDGMENT BELOW FOR PLAINTIFFS AGAINST OWNER'S CARRIER, NEIGHBOR WAS AN ADDITIONAL ASSURED & HER SUBSEQUENT DEVIATION FROM PURPOSE FOR WHICH SHE BORROWED CAR DID NOT DEPRIVE HER OF OMNIBUS-CLAUSE COVERAGE -- ".....

WE HOLD THAT IF A PERSON IS GIVEN PERMISSION TO USE A MOTOR VEHICLE IN THE FIRST INSTANCE, ANY SUBSEQUENT USE SHORT OF THEFT OR THE LIKE, THOUGH NOT--.WITHIN THE CONTEMPLALTION OF THE PARTIES, IS A PERMISSIVE USE WITHIN THE TERMS OF A STANDARD OMNIBUS CLAUSE IN AN AUTOMOBILE LIABILITY INSURANCE POLICY" (at 349). Matits v. Nation" wide Mutual Ins. Co., 166A. 2d 345 (N. J. 1960) (See also Indemnity Ins. Co. v. Metropolitan Cas. Ins. Co. of N. Y., 166A. 2d 355 (N.J. 1960) (owner permitted her car to be taken by her employee, only he thrive, to take sales promotion party to & from a tour of per brewery; on, return it was being driven by a customer who, in effect, was expressly prohibited from operating the car & he negligently caused car to hit tree; held: (1) customer was an insured under omnibus clause of owner is policy (2) the use, as distinct from the operation, of the car was a permitted one; (3) it is undisputed that owner gave her employee, the customer-driver & others in the party permission to use her car to go to & from the brewery; (4) at the time of the collision, the car was being used for that purpose; (5) coverage under standard omnibus clause depends upon whether the use, as distinct from operation, of the car is a permitted one; (6) in this context, use & oper­ation have different meanings & omnibus clause requires only that the use of the car be with per­mission of named insured & any prohibition as to operation of the car being immaterial re ques­tion of coverage; (7) language of omnibus clause is to be construed broadly in favor of insured & innocent victims of auto acci­dents).

OCCUPIERS' LIABILITY -- OF STORE TO PATRON-- SLIP-&-FALL CASE -­CUSTOMER SLIPPED ON SLOPING TILE RAMP WHEN LEAVING STORE-SURFACE OF TILED RAMP WAS 50% NONSKID BUT OTHER 50% WAS COVERED WITH SLICK TILE UPON WHICH ONE MIGHT BE EX­PECTED TO SLIP -- ALSO RAMP VIOLAT­ED BUILDING CODE -- ITS SLOPE EXCEEDED ONE INCH IN TEN INCHES -­ CODE ALSO PROVIDED THAT RAMP SURFACE SHOULD BE OF NON-SKID MATERIAL -- TESTIMONEY THAT COST OF PLACING RUBBER NONSKID MAT OVER EXIT AREA WOULD HAVE BEEN SMALL - HELD, AFF' MING JUDGMENT FOR PLAINTIFF, JURY COULD PROPERLY FIND DEFENDANT-STORE WAS GUILTY OF CASUAL NEGLIGENCE. Atlantic & Pacific Stores, Inc. v. Pitts, 283 F. 2d 756 (4th Ci. 1960).

DAMAGES --COLLATERAL SOURCE RULE-­GRATUITOUS MEDICAL SERVICES GIVEN TO SERVICEMAN BY GOV'T - PLAINTIFF, INJURED WHILE RIDING AS PASSENGER IN CAR OWNED & OPERATED BY Defendant, RECEIVED GRATUITOUS HOSPITAL­IZATION & MEDICAL TREATMENT INCI­DENT TO HIS AIR FORCE ENLISTMENT-­HELD HE WAS ENTITLED TO RECOVER FROM TORTFEASOR FOR "REASONABLE VALUE OF MEDICAL SERVICES RENDERED THE SERVICEMAN BY THE UNITED STATE GOVERNMENT AND FOR WHICH THE SERVICEMAN DOES NOT PAY" (at 385). Burke v. Byrd, 188 F. Supp. 384 (N.D. Fla. 1960) (See also Johnson v. Rhuda, 164A. 2d 675 (Me. 1960) (father entitled to recover value of nursing services rendered by wife to her injured child); Saunders v. Schultz, 170 N. E. 2d 163 (Ill. 1960) (widow has common-law cause of action for medical & funeral expenses; tort­feasor's duty to pay such damages not reduced by any medical or hospital insurance available to plaintiff).

AUTO ACCIDENT--REAR ENDER--WHETHER PLAINTIFF, DRIVER OF FORWARD CAR, GUILTY OF CONTRIBUTORY NEGLIGENCE-­PLAINTIFF APPROACHING INTERSECTION STOPPED CAR ABRUPTLY WHEN TRAFFIC LIGHT TURNED FROM GREEN TO AMBER

& DEFENDANT, FOLLOWING AT 30-50', UNABLE TO STOP, RAMMED REAR END OF PLAINTIFF'S CAR -- HELD, RE­VERSING JUDGMENT FOR DEFENDANT ON JURY VERDICT, UNDER LOCAL ORDINANCE, AS A MATTER OF LAW, DRIVER OF FORWARD VEHICLE COULD NOT BE GUILTY OF CONTRIBUTORY NEGLIGENCE IN STOP­PING ABRUPTLY ON AMBER LIGHT -­ RIGHT TO STOP (OF DRIVER APPROACHING AMBER LIGHT) IS ABSOLUTE-Drivers OF FORWARD & FOLLOWING VEHICLES ARE EQUALLY GOVERNED BY SIGNAL LIGHT & FORMER IS NEVER UNDER A DUTY TO VIOLATE RIGHT OF WAY OF VEHICLES IN AN INTERSECTING ST IN ORDER TO PROTECT LATTER FROM HARM OF ITS FAILURE TO STOP--DUTY OF EVERYONE TO ANTICIPATE LIGHT CHANGES & BE ABLE TO ACT ACCORDINGLY PRECLUDES RIGHT OF FOLLOWING VEHICLE TO INVOKE EMERGENCY DOCTRINE -­ "DRIVER OF FORWARD VEHICLE DOES NOT CREATE AN EMERGENCY BY OBEYING A LIGHT SIGNAL" - "THE DRIVER OF A FOLLOWING VEHICLE MUST ANTICIPATE THAT HE WILL STOP ON AN AMBER LIGHT AND BE ABLE TO ACT ACCORDINGLY" (p.995). Brummet v. Cyr, 355 P. 2d 994 (Wash. 1960).

AGAINST INSURANCE COS.--DUTY TO SETTLE WITHIN POLICY LIMITS--IN­SURER'S LIABILITY FOR EXCESS JUDG­MENT-- WIFE INJURED AS RESULT OF COMBINED NEGLIGENCE OF HER HUSBAND & ST. CAR CO.--IN WIFE'S ACTION AGAINST HER HUSBAND, SHE OFFERED TO SETTLE FOR HIS POLICY LIMITS OF $5,OOO--CARRIER REFUSED THE OFFER & THEN AT TRIAL "WAS TOTALLY UNPREPARED TO COMPETENTLY DEFEND HIM SINCE IT HAD MADE NO INVESTIGATION, HAD NO LAY OR MEDICAL WITNESSES AVAILABLE, HAD NO STATEMENT OF WITNESSES AND HAD NOT TAKEN DEPOSITIONS OF ADVERSARY WITNESSES"-­ HELD. AFF'MING JUDGMENT IN FAVOR OF HUSBAND POLICY HOLDER AGAINST INSURER FOR AMOUNT OF JUDGMENT IN EXCESS OF POLICY LIMITS ($22,500), EVIDENCE SUPPORTED FINDING THAT INSURER WAS GUILTY OF BAD-FAITH REFUSAL TO SETTLE WITHIN LIMITS--INSURER LIABLE TO PAY INTEREST ON ENTIRE JUDGMENT & NOT ON JUST SO MUCH OF IT AS WAS WITHIN POLICY LIMITS. Augustin v. General Accident Fire & Life Assur. Corp., 283 F. 2d 82 (7th Cir. 1960) (under circumstances of this case, stated 7th Circuit, "defendant's action in choosing to expose its insured to full liabili ty can hardly be characterized as a display of good faith" (at 85)).

INCOME--1ST-IMPRESSION CASE--NO ERROR IN ADMITTING EVIDENCE THAT PLAINTIFF'S DECEDENT, 73-YR.-OLD RETIRE RAIL­ROAD EMPLOYEE, WAS DRAWING $140.28 PER MO. FROM RAILROAD RETIREMENT BOARD AT TIME OF HIS DEATH (AUTO PASSENGER KILLED AS RESULT OF COMBINED NEGLIGENCE OF 2 DEFENDANT­ MOTORISTS) UPSHOT IS THAT "PECUNIARY LOSS " TO SURVIVORS UNDER LORD CAMPBELL'S ACT TYPE STATUTE IS NOT LIM ITED TO WHAT DECEDENT WOULD PROBABLY HAVE E ARNED BY HIS OWN EXERTIONS--CT HOLDS THAT DEATH IN FORM OF RETIREMENT INCOME--REASON­ING & RESULT OF OPINION WOULD CLEARLY APPEAR TO AUTHORIZE "INCLUSION OF INCOME FROM AN ANNUITY, LIFE ESTATE, RETIREMENT PAY OR OTHER INCOME FOR, LIFE ONLY, IN ARRIVING AT THE PECUNI­ARY LOSS SUSTAINED BY REASON OF THE WRONGFUL DEATH" (at 246). Bryant v. Woodlief, 114 S.E. 2d 241 (N.C. 1960) (accord: Heskamp v. Bradshaw's Adm'r, 294 Ky. 618_ 172 S.W. 2d 447 (railroad pension)).

­Explosives--CONCUSSION DAMAGE TO HOUSE FROM DEFENDANT-SUBCON­TRACTOR'S BLASTING-DEFENDANT MUST SHOW THAT A "HIGH DEGREE OF CARE" WAS STRICTLY OBSERVED-­ONUS IS ON DEFENDANT TO SHOW THAT SUCH CARE WAS EXERCISED-­HELD AFF 'MING JUDGMENT FOR PLAINTIFF, EVIDENCE SUSTAINED FINDING THAT BLASTING OPERATIONS IN CONNECTION WITH SEWER LINE INSTALLATION HAD BEEN NEGLIGENT­LY CONDUTCTED & THAT RESULTING VIBRATIONS HAD CRACKED PLASTER WALLS & CEILINGS OF PLAINTIFF'S HOME. Washington Air Compo Rent. Co. v. National U. Ins. Co., 165 A-2d 482 (Mun. Ct. App., D. C., 1960) ct acknow­ledges that most states apply rule of absolute liability to concussion damage from blasting) (See 20 A.L.R. 2d 1372).

AUTO ACCIDENTS--INTERSECTIONAL COLLISION AT 2 FARM-TO-MARKET HIGHWAYS - WHETHER PLAIN SIGHT DRIVER GUILTY OF CONTRIBUTORY NEGLIGENCE AS MATTER OF LAW - ­ALTHO' DEFENDANT HAD DIRECTIONAL RIGHT OF WAY, EACH CAR WAS IN PLAIN SIGHT AS DRIVERS APPROACH­ED INTERSECTION & PLAINTIFF HAD REASON TO BELIEVE DEFENDANT SAW HER CAR & A TRAFFIC SIGN FACING HIM READING "YIELD RIGHT OF WAY" EFFECT OF DEFENDANT'S DISREGARD OF _Unauthorized TRAFFIC SIGN-­PRESENCE OF UNAUTHORIZED SIGN HELD MATERIAL ON QUESTION OF NEGLIGENCE OR CONTRIBUTORY NEGLIGENCE--PLAINTIFF HAD RIGHT TO ASSUME SIGN WAS AUTHORIZED & THAT DEFENDANT, WOULD OBEY IT - ­DECISION GIVES LIE TO UNTENABLE CONTENTION THAT VIOLATION OF UNAUTHORIZED TRAFFIC SIGN IS WITHOUT LEGAL EFFECT -- HELD,

ERROR TO GRANT Defendant's MOTION FOR JUDGMENT ON PLEADINGS-­PLAINTIFF'S CONTRIBUTORY NEGLI­GENCE WAS FOR JURY, NOT CT. Geisking v. Sheimo, 105 N.W. 2d 599 (Iowa 1960).

PARENT & CHILD -- INDEMNITY AGREEMENT GIVEN BY PARENT TO TORTFEASOR'S CARRIER IN RE­LEASING CLAIM FOR INJURY TO MINOR CHILD--COURT OF APPEALS HOLD INDEMNITY AGREEMENT IN PARENT'S RELEASE GIVEN IN SETTLEMENT OF INFANT'S CLAIM UNENFORCEABLE AS OFFENSIVE TO NEW YORK'S PUBLIC POLICY-­PARENT'S INDEMNITY AGREEMENT HELD VOID AS CONTRAVENING N. Y. PUBLIC POLICY ENUNCIATED IN ART. 80, CPA, RENDERING UNENFORCE­ABLE ANY AGREEMENT PURPORTING TO SETTLE INFANT'S CLAIM FOR PERSONAL INJURIES UNLESS APPROV­ED BY COURT--PARENT WHO PLACES HIMSELF IN POSITION OF INDEMNI­TOR OF TORTFEASOR'S CARRIER BY GIVING CARRIER "HOLD HARMLESS" CLAUSE IN RELEASE "WILL BE A DUBIOUS CHAMPION OF HIS INFANT CHILD'S RIGHT." Va1d1mer v. Mount Vernon Hebrew Camps, Inc.N. Y. Ct. App., Jan. 12, 1961 (as yet unreported) (advance copy of opinion supplied through courtesy of counsel for plaintiff, NACCA Member Leonard L. Rivkin) (accord: Ohio Casualty Ins. Corp., v. Mallison, 354 P. 2d 800 (Ore. 1960): Loesch v. Vassiliades, 17 N. J. Super. 306 (1952)).

AGAINST CARRIER-PASSENGER THROWN TO FLOOR BY ABRUPT STOP OF BUS--BUS DRIVER FOLLOWING PRECEDING CAR TOO CLOSELY & FAILED TO OBSERVE HIGHWAY TRAFFIC--BUS DRIVER FORCED TO MAKE ABRUPT STOP WHEN PRECEDING CAR HAD TO STOP WHEN ONCOMING DRIVER MADE ILLEGAL LEFTHAND TURN - HELD, SUCH INTER­VENING ILLEGAL ACT 'WAS NOT A SUPERSEDING CAUSE & WOULD NOT INSULATE BUS CO. FROM LIABILITY. Torrez v. Peck, 356 p. 2d 703 (Wash. 1960).

UTAH SUPREME COURT RECOGNIZES EMERGING TORT OF INTENTIONAL IN­FLICTION OF EXTREME MENTAL SUFFERING--PERSISTENT SOLICITA­TION OF ILLICIT SEXUAL INTER­COURSE--PLAINTIFF, MARRIED WOMAN, ALLEGED IN HER COMPLAINT THAT DEFENDANT PERSISTENTLY TELEPHONED HER SOLICITING ILLICIT SEXUAL RELATIONS & ON ONE OCCASION CAME TO HER RESIDENCE & MADE INDECENT EXPOSURE OF HIS PERSON - HELD, ERROR TO NONSUIT PLAINTIFF- COURT RECOGNIZES TREND TO ALLOW RECOVERY FOR INTENTIONAL INFLIC­TION OF EXTREME MENTAL SUFFERING IN OUTRAGEOUS CIRCUMSTANCES EXCEEDING BOUNDS OF DECENCY- NACCA LAW JOURNAL CITED. Samms v. Eccles, 358 P. 2d 344 (Utah 1961)(excellent opinion by Justice Crockett) (accord: Mitran v. Williamson, 197 N.Y.S. 2d 689 (Sup. Ct. 1960), 25 NACCA L.J. 116-131).

LANDLORD & TENANT--LIABILITY OF LANDLORD TO TENANT'S EMPLOYEE-­LIABILITY OF BAILORS, LESSORS, OR SUPPLIES OR MACHINERY TO 3D PERSONS --SERVICE STATION EMPLOYEE SERIOUSLY INJURED WHEN CAR ROLLED OFF GREASE RACK DUE TO FAILURE OF SAFETY FLAPS ON RACK--HELD. AFF'MING JUDGMENT FOR PLAINTIFF FOR $150,000, JURY COULD PROPERLY FIND THAT STANDARD OIL CO. (LESSOR) HAD NEGLIGENTLY FAILED TO PERFORM ITS UNDERTAKING TO MAINTAIN GREASE RACK IN REASONABLY SAFE CON­DITION--DAMAGES--$150,000 AWARD FOR "SEVERE COMMINUTED FRACTURES OF THE SKULL" & EXTENSIVE BRAIN DAMAGE-­ NO CONTENTION BY DEFENDANT ON APPEAL THAT AWARD WAS EXCESSIVE. Standard. Oil Co. v. Foster, 280 F. 2d 912 (5th Cir. 1960) (citation here given for case noted when unrepor­ted in NACCA News Letter, Vol. 3, No. II (Oct. 1960), p. 4).

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