THE VERDICT

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

Vol. 3, No. 7 August 1961

PRESIDENT'S COLUMN

A newly elected President al­ways has his plans and dreams for the organization he heads. I have mine and in this way I am no dif­ferent from other Presidents.

On August the 19th, your Of­ficers and Board of Directors met in Atlanta and spent approximately three and one-half hours going over the affairs of the Associa­tion. From this meeting three im­portant things stood out: (1) we need more members in order to be more representative of the Plain­tiffs' Lawyers of Georgia. (2) We need a better educational program to get across to the Plaintiffs' Lawyers of Georgia the value of be­longing to GAPTA and (3) we need an increase of dues.

After long and careful consideration your Board adopted a program for the coming year which I am sure will be one that you will approve.

The Secretary will send a copy of the minutes of the Board meeting to all the Officers and Directors. Any other member who desires a copy can get one by writing to the Sec­retary. Important excerpts will be placed in this column.

It was voted to hold our offi­cers and Board of Directors meeting at the same time and place with the Georgia Bar Association. Our next Board Meeting will be held in Athens Georgia on Thursday, October the 26th at 5:00 P.M. probably in my room in the Continuing Education Building. Immediately following the meeting a cocktail party will be held and possibly a dinner. Any member of the association who may be in Athens at that time is invited to join with us to dis­cuss your business.

Your President is now making up his committee assignments for the year and if you would like to be placed on any committee if you will write me immediately I will do my best to fulfill your re­quest. We have had the following committees in the past: Legisla­tive, Judiciary, Public Relations & Membership, Seminar and Continu­ing Legal Education and Georgia Bar Association Liaison. I have appointed Sam Hewlett of Atlanta as Chairman of the Appellate Com­mittee. It will be the duty of this committee to advise with and counsel any of our members who may have a case that they want to appeal to one of our Appellate courts. If you do appeal a case will you please notify the Chair­man of our Appellate Committee immediately upon the filing of your appeal so that he can help keep track of its progress and offer any suggestions that he or his committee may find helpful to you. Also, please send Sam Hew­lett a copy of the brief you file. After he has finished with the br­ief, he will send it to our Brief Bank where you will be given cre­dit for it. If all the members will cooperate with our Appellate Committee I believe it will be one of the finest things we can do.

I must put in a word for our Brief Bank and urge every member to send a brief. Don't forget the old saying. "You only get out of anything what you put into it."

Our Mid-Winter Board of Gov­ernors Meeting will be held along with the Georgia Bar Association Meeting in Atlanta, December 7th through 9th. This is a good oppor­tunity for as many members as pos­sible to meet with the Board and have a small convention.

I am looking forward to see­ing many of you in Athens on Octo­ber the 26th at our next Board Meeting.

With kindest personal regards,

Sincerely,

WILLIAM F. BRAZIEL, President

RECENT GEORGIA CASES OF INTEREST

ACTION AGAINST MANUFACTURER ON IM­PLIED W ARRANTY - PRIVITY.

The case of Revlon, Inc. v. Murdock 103 Ga. App. 84 2 holds that a plaintiff suing a manufac­turer on implied warranty must be a purchaser either directly from a manufacturer or from some other per­son such as a wholesaler or a retail­er. In this case the plaintiff was employed as beautician in a beauty salon. The beauty salon for which she worked purchased one of the de­fendant's products in a bottle. The bottle exploded and injured the em­ployee plaintiff. The Court held that Code Section 96-307 of the Georgia Code of 1933 as amended did not enable the employee to sue the" manufacturer under the above circum­stances. (Note: application for cer­tiorari has been filed in this case)

An employee is entitled to recover workmen's compensation for an injury received while rid­ing his employer's motor scooter to his home for the purpose of eating supper where it appears (1) that the claimant's right to re­turn home for supper was an expres­sed pre-requisite of his contract and employment (2) the employer re­tained control of the employee dur­ing his supper hour for the purpose of designating the time when he could leave and for the purpose of making deliveries while enroute to and from the employer's p1ace of business and (3) where the employ­er furnished the transportation. American Hardware Ins. C6. vs. Burt 103 Ga. App. 811

In the case of Vaughn vs. But­ ler, 103 Ga. 884, the defendant turned the automobile over to her nephew G, who permitted T to drive even though T had no drivers license and was only 16 years of age and was inexperienced in operating an automobile. The defendant knew that G had been letting T drive the car and the defendant did not forbid T from driving the automo­bile. The Court held that under these circumstances the p1aintiff was entitled to recover for dam­ages sustained when involved in a collision with T even though the defendant did not know T was driv­ing the car at the time of the wreck. The Court stated that the jury was authorized to find that the car was being driven with the implied consent of the defendant. The Court quoted from 5A Am. Jur. 590, Automobiles and Highway Traf­fic Section 580 which states in part as follows: "It is generally recognized that one who places or entrusts his motor vehicle in the hands of one whom he knows, or from the circumstances is charged with knowing, is incompetent or unfit to drive, may be held liable for any injury inflicted by the use made thereof by the driver, provided the plaintiff can estab­lish that injuries complained of were the proximate cause of the driver's disqualification, incompetency, inexperience, or recklessness. . . . Liability for negligence of the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the fact of entrustment of the motor vehicle with per­mission to operate the same, to one whose incompetency, inexperi­ence or recklessness is known or should have been known by the owner."

In the case of Georgia Ash­land etc. vs. Rutherford, 104 Ga. App. 4 l, the Court of Appeals af­firmed a recovery against a railroad company in an action brought by a passenger in a motor vehicle where the car in which she was rid­ing at night collided with the side of a gondola which the defendant was operating across a "blind" crossing.

The Court of Appeals in the case of West vs. Matthew, 104 Ga. App. 57, held that where a mother (who was a widow) and her only child, a daughter, were injured in a motor vehicle collision, the mother being killed instantly and the daughter surviving for several hours, that the administrator of the estate of the daughter is en­titled to bring an action for the wrongful death of the mother de­spite the fact that the daughter died before the wrongful death ac­tion could be instituted.

FOREIGN CASES OF INTEREST FROM NACCA NEWSLETTER

Connecticut: AUTO ACCIDENTS --- GUEST Claims -WRONGFUL DEATH -- ACTION FOR PAS­ENGER'S DEATH AGAINST INTOXICATED DRIVER -- WHETHER ASSUMPTION OF RISK A DEFENSE -- CONNECTICUT RULE THAT Assumption OF RISK IS NO DEFENSE TO NEGLIGENCE WHERE FAULT ARISES FROM DEFENDANT'S BREACH OF A STATUTORY

DUTY -- PLAINTIFF KILLED WHILE A PAS­SENGER IN CAR DRIVEN BY DEFENDANT WHILE UNDER THE INFLUENCE OF ALCOHOL -- HELD, PLAINTIFF'S DEMURRER TO THE SPECIAL DEFENSE OF ASSUMPTION OR RISK SUSTAINED -- STATUTE PROHIBITING DRUNKEN DRIVING GIVES RISE TO A PUBLIC OBLIGATION WHICH IS FOR decedent's PROTECTION & BENEFIT & CAN­NOT BE WAIVED BY HIS ACTS. Casey v. Atwater, 22 Conn. Super. 225, l67-A. 2d 250 (1960) (See Finnegan v. Royal Realty Co., 218 P.2d 17 (Cal. 1950) (basis of decision is rule that as­sumption of risk is unavailable as defense where defendant violates statute intended for plaintiff's pro­tection)(ct relied upon L'Heureux v. Hurley, 168 A.8 (Conn. 1933)(assump tion of risk no defense in tenant's action against landlord for harm caused by landlord's breach of statu­tory duty to light hall & staircase)).

Oregon: HUSBAND & WIFE -- TORTS IN THE FAMILY -- WHETHER HUSBAND'S PERSONAL IMMUNI­TY FROM SUIT BY HIS WIFE SHOULD EXTEND TO HIS EMPLOYER -- OREGON SUP­REME CT HOLDS THAT WIFE MAY RECOVER FROM HUSBAND'S EMPLOYER FOR HARM NEGLIGENTLY INFLICTED BY HUSBAND WHILE ON JOB EVEN THOUGH LOCAL LAW BARS INTERSPOUSAL TORT ACTIONS -- EMPLOYER CAN'T HIDE BEHIND SKIRTS OF HUSBANB'S PERSONAL IMMUNITY_ Kowaleski v. Kowaleski, 361 P. 2d 64 (Ore.-1961) (excellent opinion by Justice Rossman (see 23 NACCA L. J. 47-48; 21 id. 360 371-372; 20 id. 326-328 (collecting cases)).