THE VERDICT

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

Vol. 3, No.6 July 1961

RECENT GEORGIA CASES OF INTEREST

IS A FRIEND OF A CUSTOMER AN IN­VITEE IN A PLACE OF BUSINESS? WHERE AN EMPLOYEE OF A PLACE OF BUSINESS EXPRESSLY INVITES A CUSTOMER AND A FRIEND WHO IS WITH THE CUSTOMER INTO A CERTAIN POR­TION OF THE BUILDING FOR THE PUR­POSE OF INSPECTING A CAR OF THE CUSTOMER WHICH IS BEING REPAIRED, THE FRIEND OF THE CUSTOMER IS AN INVITEE. Etheridge Motors, Inc. v. Haynie, 103 Ga. App. 676.

A SERVANT MAY HAVE TWO MASTERS-­AN ACTION MAY BE BROUGHT AGAINST A GENERAL CONTRACTOR, ITS SUB­CONTRACTOR AND THE EMPLOYEE OF THE SUB-CONTRACTOR FOR THE NEG­LIGENCE OF THE ACTIONS OF THE EMPLOYEE WHERE THE GENERAL CON­TRACTOR HAD THE RIGHT TO DIRECT AND CONTROL THE PERFORMANCE OF THE WORK DONE BY THE SUB-CON­TRACTOR AND THE EMPLQYEE OF THE SUB-CONTRACTOR, AND WHERE A GENERAL CONTRACTOR DID DIRECT AND CONTROL THE PERFORMANCE OF THE WORK DONE BY THE SUB-CON­TRACTOR AND ITS EMPLOYEE. Ed Smith & Sons, Inc. v. Mathis, 103 Ga. App. 661. In this case the Court was also con­fronted with the question of whether or not the statutes reg­ulating traffic on the highways of the State were applicable to a huge dirt moving machine which a contractor was using for work adjacent to the highway when the contractors vehicle entered upon and traveled upon the high­way which is open to the public. The Court determined that these traffic statutes did apply to such machinery under such cir­cumstances.

WORKMEN'S COMPENSATION--WHEN AN EMPLOYEE HAS BEEN AWARDED COM­PENSATION BY THE BOARD, THE INSURANCE CARRIER MAY NOT-DISCONTINUE THE PAYMENT OF COMPEN­SATION WITHOUT AN ORDER OF THE BOARD CHANGING, OR ALLOWING THE DISCONTINUANCE OF THE COMPENSA­TION. Bituminous Casualty Corpora­tion v. Vaughn, 103 Ga. App. 660. In this case an agreement with the employee for the payment of compensation was approved by the State Board on May 27, 1958. Payments were made pursuant there­to until July 16, 1958, when they were stopped after the physician who operated on the employee for hernia reported that the employee had recovered. Neither the employee, the employer nor its insurance carrier requested a hearing on the matter. In Jan­uary 1961, the employee filed suit in Superior Court seeking judgment for the unpaid installments of compensation. In permitting a recovery, the Court held that under these circumstances, there could only be one of three defenses to such a suit:

(1) A final settlement receipt between the parties, (2) Evi­dence that the statutorial amount of the amount called for by the agreement had been paid in full, or, (3) An order of the Board changing or allowing a discontinuance of compensation.

FOREIGN CASES OF INTEREST FROM RECENT NACCA NEWS LETTERS

FELA--INJURIES COVERED--NERVOUS BREAKDOWN--TRAIN DISPATCHER OPERATED COMPLICATED SYSTEM OF TRAFFIC CONTROL--HAD RESPONSI­BILITY TO AVOID COLLISIONS ON R.R.'S MAIN LINE--SUFFERED COMPLETE NERVOUS BREAKDOWN-­ HELD, AN "INJURY" UNDER THE FELA--TERM "INJURY" NOT RESTRIC­TED BY ADJECTIVES" ACCIDENTAL" OR "BODILY"--SILICOSIS HELD TO BE INJURY IN URIE v. THOMPSON 337 U.S. 163 (1949) OVER WORK­ ING EMPLOYEE SO AS TO IMPAIR HIS HEALTH NEGLIGENCE UNDER FELA. McMillan v. Western' Pacific R. Co., 9 Cal. Rptr. 361 (1960) (Five-star decision. Already settled that physical injuries because of R.R.'s negligent failure to supply adequate help or equipment are actionable under FELA. See 25 NACCA L.J. 263. Instant case extends ambit of liability to mental injuries. Cf. Carter v. General Motors Corp._ 106 N.W. 2d 105 (Mich. 1960) (nervous breakdown from emotional pres­sures of work held to be a "personal injury" under work­men's comp. act, discussed supra at p. 16.

ARISING OUT OF & IN THE COURSE OF--RECREATIONAL ACTIVITY-­CLAIMANT INJURED PLAYING BASE­BALL FOR TEAM SPONSORED BY EMPLOYER-TEAM MADE UP ENTIRELY OF EMPLOYEES OF EMPLOYER--ALL EXPENSES PAID BY EMPLOYER-­

NAME OF EMPLOYER PRINTED ON UNIFORMS AND APPEARED IN PRESS ANNOUNCEMENTS ABOUT TEAM--HELD_ COMPENSABLE. McCarty v. Dahlstrom Metallic Door Co., 207 N.Y.S. 2d 713 (App. Div. 1960)

AGAINST AUTOMOBILE TRANSPORT CO.­WRONGFUL DEATH FROM GASOLINE FIRE­FILLING STATION PATRON BURNED TO DEATH IN FIRE OCCURRING WHILE GAS STATION ATTENDANT WAS PUTTING GAS­OLINE IN SADDLE TANK OF DEFENDANT'S TRANSPORT TRUCK-CIRCUMSTANTIAL EVIDENCE--HELD SUFFICIENT TO SUPPORT JURY'S FINDING THAT FIRE & RESULTING DEATH OCCURRED BECAUSE OF STATIC SPARK CAUSED BY ATTEN­DANT'S VIOLATION OF I.C.C. REGU­LATION REQUIRING NOZZLE OF HOSE TO BE KEPT IN CONTACT WITH SIDE OR LIP OR INTAKE OF SADDLE TANK-­ JURY COULD FIND STATIC ELECTRI­CITY WAS CREATED BY FLOWING GASOLINE COMING IN CONTACT WITH NOZ­ ZLE & SIDE OF SADDLE TANK­ & THAT SPARK JUMPED FROM SIDE OF THE TANK TO NOZZLE OR FROM NOZZLE TO TANK--CIRCUMSTANTIAL EVIDENCE TO BE SUFFICIENT NEED NOT EXCLUDE EVERY REASONABLE EXPLANATION OTHER THAN ONE REACHED BY JURY--EFFECT

OF DEFENDANT'S VIOLATION OF I.C.C. REGULATIONS--NONDELEGABLE DUTY ON TRANSPORT CO. & ITS DRIVER--COULD NOT DELEGATE ITS DUTIES RE ELECTRIC GROUNDING OF FUEL HOSE TO FILLING STATION ATTENDANT OR OTHER 3D PARTIES--VERY VALUABLE DECISION-­EXCELLENT TREATMENT BY CT OF USE

OF CIRCUMSTANTIAL EVIDENCE TO PROVE STATIC ELECTRICITY AS CAUSE OF HOLOCAUST WHICH KILLED 3 OTHERS BESIDES PLAINTIFF'S DECEDENT.

Jack Cooper Transport Co. v. Griffin, 356 P.2d 748 (Okla. 7 1960).

LANDLORD & TENANT--EXCULPATORY CLAUSES--SUCH CLAUSE INAPPLICABLE TO INJURIES SUSTAINED IN OTHER TENANT'S APARTMENT--WHILE PLAINTIFF WAS PAYING CONDOLENCE CALL ON NEIGHBOR IN HIS APARTMENT BUILDING, HE WAS STRUCK ON HEAD BY FALLING PLASTER--ON PLAIN­TIFF'S APPEAL FROM TRIAL CT'S GRANTING OF SUMMARY JUDGMENT FOR LANDLORD ON BASIS OF EX­CULPATORY CLAUSE IN PLAINTIFF'S LEASE, HELD , REV' D: "EXCUL­PATORY CLAUSE WAS LIMITED TO SUCH CAUSES OF ACTION AS MIGHT ARISE OUT OF LESSOR-LESSEE RE­LATIONSHIP & WAS INAPPLICABLE WHERE PLAINTIFF'S PRESENCE IN HIS NEIGHBOR'S APARTMENT HAD NO CONNECTION WITH HIS TENANCY-­EXCULPATORY CLAUSES TO BE STRICTLY CONSTRUED--"ANY DOUBT OR UNCERTAINTY AS TO THE MEANING OF THE LANGUAGE IN A LEASE WILL BE CONSTRUED MOST STRONGLY AGAINST THE LESSOR" (at 398). Moss v. Hunding, 169 N.E. 2d 396 (Ill. App. 1960).

AGAINST CITIES--GOVERNMENTAL IMMUNITY--OCCUPANTS OF CAR WERE INJURED WHEN CAR COLLIDED WITH BUS AT INTERSECTION, CAUSED BY FACT THAT STOP SIGN AT INTER­SECTION HAD BEEN KNOCKED DOWN ON PREVIOUS DAY & NOT REPLACED, THUS PERMITTING CAR TO ENTER INTER­SECTION WITHOUT STOPPING--HELD, REVERSING DISMISSAL OF PLAINTIFFS' DECLARATIONS, MAINTENANCE OF STOP SIGN WAS WITHIN CITY'S STATUTORY DUTY TO KEEP STREETS IN REASONABLE REPAIR--CT CITED VARIOUS SITUA­TIONS WHICH HAD BEEN HELD TO BE WITHIN MICH. STATUTE SPECIFICALLY IMPOSING LIABILITY UPON CITIES FOR FAILURE TO KEEP STREETS REASONABLE REPAIR (FAILURE TO REMOVE CLOTHESLINE STRUNG ACROSS A PUBLIC SIDEWALK & FAILURE TO RE­PLACE CENTER POST TO A SAFETY BARRIER) & THEN STATED: "IT SEEMS OBVIOUS TO US THAT THE KNOCKING DOWN OF A STOP SIGN FACING THE INTERSECTING STREET, AND THE NEG­LIGENT FAILURE TO REPLACE SAME, HAS A GREATER BEARING ON THE SAFETY AND FITNESS OF THAT STREET FOR TRAVEL THAN ANY OF THE FACT SITUATIONS RE­CITED ABOVE"--AS CT NOTED, SEVERAL STATES HAVE IMPOSED LIABILITY IN SIMILAR CASES WITHOUT SIMILAR STATUTORY AUTHORITY. O'Hare v.

City of Detroit--, 106 N.W. 2d 538 (Mich. 1960).

FEDERAL JURISDICTION--AMOUNT IN CONTROVERSY IN DIVERSITY CASES-­DEFENDANT CONTENDED THAT ACTUAL TORT DAMAGES OF PLAINTIFF DID NOT EXCEED $10,000 & THAT ACTION SHOULD BE DISMISSED--COURT DENIES MOTION ON BASIS THAT PLAINTIFF'S AD DAMNUM MUST BE TAKEN ON ITS FACE--TO EMBARK ON INVESTIGATION OF AMOUNT IN QUESTION "WOULD BE PLACING IN THE COURTS ARBITRARY POWER THAT WOULD GREATLY IMPAIR THEIR USEFULNESS"--WHILE DAMAGES ALLEGED ARE OFTEN OVERSTATED, QUESTION OF EVALUATION IS ONE ON WHICH FAIR-MINDED PERSONS MAY DIFFER. Hlavaty v. Muffitt, 190 F.Supp. 541 (W.D.Va. 1960) (Trial judge also remarked that the increased jurisdictional amount has not materially affected the number of tort cases in the fed­eral courts, but only the amount sued for)(useful reminder that federal jurisdiction is determined by amount claimed by plaintiff, not by amount recovered) (See also Amos v. Prom, 115 F.Supp. 127, 137 (D.Iowa 1953)).

DISCOVERY--2-YR.-OLD PLAINTIFF WAS BITTEN BY DEFENDANT'S DOG-­PLAINTIFF'S MOTHER WAS AN EYEWITNESS & BEFORE COUNSEL WAS RETAINED CARRIER'S REPRESENTATION OBTAINED STATEMENT FROM MOTHER WITHOUT LEAVING COPY THEREOF-­HELD, OVERRULING Urbina V. McLain, 168 N.Y.S.2d l75 (App. Div. 1957) TO EXTENT INCONSIS­TENT, PLAINTIFF'S MOTION, DI­RECTING DEFENDANT TO PRODUCE FOR DISCOVERY & INSPECTION STATEMENT OF PLAINTIFF'S MOTHER, GRANTED-­ "POSITION WE TOOK IN URBINA CASE SHOULD BE BROADENED TO PERMIT THE INSPECTION OF A STATEMENT GIVEN BY A WITNESS_ AS WELL AS ONE GIVEN BY A PARTY, IN CIRCUMSTANCES SUCH AS THESE WHERE THERE IS A DISABILITY ON THE PART OF THE IN­JURED PERSON TO TESTIFY.." Beyer v. Keller, 207 N.Y.S? 2d 59l (App. Div.1960) (plaintiff entitled to inspect statement given by plain­tiff's mother to defendant's carrier).