THE VERDICT

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

Vol. 3, No.5 June 1961

At the recent GAPTA meeting held at Jekyll Island the follow­ing officers were elected:

William F. Braziel, Savannah, President

Gus Jones, Macon, Executive Vice President

Other Vice Presidents:

J. R. Cullens, Cartersville

Gerald Kunes, Tifton

Harry Dicus, Columbus

Casper Rich, Atlanta

Randall Evans, Jr., Thomson

Alford Wall, Treasurer

William W. Daniel, Secretary and Editor of THE VERDICT

Ross Arnold, Associate Editor of THE VERDICT.

CULLEN M. WARD HAS GIVEN THE VERDICT THE FOLLOWING MATERIAL ON RECENT VERDICTS AND SETTLE­MENTS IN GEORGIA

Since the first of the year, and specifically since the first of April, there have been the following verdicts and settlements:

Verdict in Albany, Georgia, in the amount of $193,000.00, for a widow of a truck driver with four children.

Verdict in Savannah, Georgia, in a slip and fall case, in the amount of $22,000.00.

Verdict in Rockdale County in a slip and fall case, in the amount of $22,000.00.

Verdict in Atlanta in a pro­duct liability case for a blinded negro of Cleveland, Ohio, in the amount of $130,000.00

There have been the follow­ing settlements through use of excellently prepared brochures:

$75,000.00 for a deceased wife and a permanently disabled husband, though both the deceased and the husband were nearing sixty years of age.

A settlement of $70,000.00 for an eight-month-old child who lost his arm, and injuries to his mother and aunt, the latter in­juries being minor in nature.

A settlement in deep South Georgia, through use of a bro­chure, in the amount of $50,000.00 the exact facts being unknown.

In the past year, there have been two large verdicts rendered in Tifton, Georgia, one being $60,000.00, and the other $30,000.00, both being the largest verdicts ever obtained in that area.

All except one of these ver­dicts were handled by NACCA and GAPTA lawyers.

CASES OF INTEREST FROM RECENT NACCA NEWS LETTERS

AGAINST CONTRACTORS & SUBCON­TRACTORS--ATTRACTIVE NUISANCE DOCTRINE--CONTRIBUTORY NEGLI­GENCE--PLAINTIFF, 9-YRS.-OLD, LOST 2 FINGERS WHEN A CONCRETE BLOCK COLUMN ON WHICH HE WAS CLIMBING COLLAPSED--COLUMN WAS PART OF AN UNFINISHED GARAGE, BEING BUILT BY D-I--D-2, MASONRY SUBCONTRACTOR, HAD FINISHED HIS WORK & NEXT STAGE OF BUILDING HAD NOT YET STARTED--BOLTS PROTRUDED OUT OF COLUMN, MAKING IT "INVITING TO BOYISH FANCY"--DIRECTED VERDICT FOR DEFENDANT REV'D--HELD, CASE SHOULD HAVE BEEN SUBMITTED TO JURY: (1) COLUMN WAS AN ATTRACTIVE OBJECT TO SMALL BOYS--IT WAS DANGEROUS ("ELSE IT WOULD NOT HAVE FALLEN")-­SUCH DANGER WAS CONCEALED, SINCE EVEN ADULTS WHO EXAMINED IT RE­GARDED IT AS SOLID--HARM RESULTED FROM SOME UNEXPECTED HAPPENING-­IT WAS FORESEEABLE THAT CHILDREN WOULD CLIMB ON IT ("IN A CLOSELY BUILT-UP RESIDENTIAL NEIGHBORHOOD CHILDREN ARE AS MUCH A PART OF THE NATURAL SCENE AS GRASSHOPPERS.")-­(2) CONTRACTOR CAN BE HELD LIABLE ­FOR FAULT OF SUBCONTRACTOR, SINCE HE HAD CONTROL OVER PROJECT & IN­SPECTED DEFENDANT-MASON'S WORK -­ NOR DOES IT MATTER THAT HARM OCCURRED ON LAND IN TECHNICAL CON­TROL OF ANOTHER PARTY FOR WHOM GARAGE WAS BUILT SINCE LIABILITY HAS BEEN FOUND ON PART OF ONE WHO MAINTAINS A DANGEROUS CONDITION ON PREMISES OF ANOTHER-- (3) IT CANNOT BE SAID PLAINTIFF WAS NEGLIGENT AS A MATTER OF LAW-- INDEED IT IS PRESUMED IN KY. THAT A CHILD OF 7-14 YRS. DOES NOT HAVE SUFFICIENT JUDGMENT TO BE CAPABLE & IT IS UP TO DEFENDANT TO REBUT THIS PRE­SUMPTION. Goben v. Sidney Winer Corp., 342 S.W. 2d 706 (Ky. 1960) (on the attractive nuisance doc­trine, see 25 NACCA L.J. 72-75; 24 id. 31-45; 23 id. 55-61.)

However, in Georgia our courts seem to be doing all they can to limit the turntable doctrine. Our courts have recently said that this doctrine will not apply to static (as opposed to dynamic) conditions. See George v. Continental Wrecking, 101 Ga. App. 538, Anderson v. Goodrich, 103 Ga. App.453.

WORKMEN'S COMPENSATION

PERSONAL INJURY--EMOTIONAL DISABILITY FROM MENTAL BREAKDOWN- CLAIMANT UNABLE TO KEEP UP WITH WORK ON ASSEMBLY LINE--CONSTANTLY BERATED BY FOREMAN-DEVELOPED PARANOID SCHIZOPHRENIA & SCHIZO­PHRENIC REACTION RESIDUAL TYPE- HELD, PSYCHOSIS RESULTING FROM EMOTIONAL PRESSURES, ENCOUNTERED IN DAILY PERFORMANCE OF WORK COMPENSABLE--AWARD TERMINATED WHEN SYMPTOMS DISAPPEARED--IMPORTANT DECISION (5-3 SPLIT)-­MAJORITY OPINION BY JUSTICE SOURIS TAKES PROGRESSIVE VIEW THAT MENTAL INJURY IS NO DIFFERENT FROM PHYSICAL INJURY-- EXCELLENT DISCUSSION OF PAST MENTAL-INJURY COMP. CASES--MAJORITY ALSO HOLDS THAT SERIES OF EMOTIONAL STRESSES CULMINATING IN BREAKDOWN COMPEN­SABLE _NO NEED FOR SINGLE, PRECIP­ITATING EVENT. Carter v. General Motors Corp, Chevrolet G. & A., Div., 106 N.W. 2d 105 (Mich. 1960) (See 25 NACCA L.J. 207 and 13 U. Fla. L. Rev. 390 (1960) for recent discussions of mental-injury comp. cases. Cf. McMi1lan v.­ Western Pac. Rd. Co., noted infra at p.18.

NOT ICE: The transcript of the GAPTA Seminar held on March 3rd and 4th, 1961, at the Dinkier-Plaza Hotel, is now available for $10.00, by writing Eddie M. Tyler, Court Reporter, 107 Civil-Criminal Courts Building, Atlanta 3, Georgia. This is the best seminar ever held in Georgia from a pro­gram standpoint.

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 b y amount recovered) (See also Amos v. Prom, 115 F. Supp. 127, 137 (D. Iowa 1953)).

FEDERAL TORT CLAIMS ACT--RIGHT OF FEDERAL PRISONER TO RECOVER UNDER FTCA--CT HOLDS FOR PLAINTIFF IN HIS ACTION AGAINST U.S. UNDER FTCA FOR INJURIES SUSTAINED WHILE HE WAS A FEDERAL PRISONER WHICH RESULTED FROM NEGLIGENCE OF FED­ERAL EMPLOYEES WHO HAD NO DUTIES RE HIS CUSTODY, SUPERVISION, OR SAFEKEEPING--CT CONCEDED THAT CASES DENY TO FED. PRISONER RIGHT TO RECOVER UNDER ACT FOR HARM SUS­TAINED DURING HIS INCARCERATION, BUT STATED: "IT IS RUNNING A GOOD PRINCIPLE INTO THE GROUND TO DE­CLARE IN TERMS OF CATEGORICAL IM­PERATIVE THAT A FEDERAL PRISONER, BY VIRTUE OF HIS STATUS ALONE, MAY NOT SUE THE UNITED STATES UNDER THE PROVISIONS OF THE (FTCA) WHERE HIS CLAIM IS BASED UPON THE ALLEGED NEG­LIGENCE OF A FEDERAL EMPLOYEE COM­PLETELY DISASSOCIATED FROM HIS STATUS." Lawrence v. U. S. (D.Ala., Feb. 13, 1961) (as yet unreported) (enlightened opinion by Chief Judge Seybourn H. Lynne).

A recent Georgia case of great importance - In the November-­December issue of THE VERDICT, we referred to the case of Harvey v. Dewell - the citation was not included in our note. Because of the importance of this case we are again calling it to your attention.

Alleging Acts of Negligence -­

Action against motel owner for injury sustained by a patron when attacked in her room by an employee of the motel--the plaintiff's specifications of negligence failed to charge the defendant with negligence in retaining an employee with felonious tendencies--plaintiff proved without objection that employee had such tendencies, but failed to prove any specifications of negligence alleged in petition. HELD: Judgment for plaintiff affirmed. Harvey v. Dewell, 102 Ga. App. 394. Introducing evidence of the felonious tendencies of the employee of the motel without ob­jection had the effect of amending, the pleadings within the rule set out in Napier v. Strong, 19 Ga. App), 401, and therefore, the plaintiff is entitled to recover even t hough the specific act of negligence which justifies affirmance of the decision in the trial court was not set out in the petition.

Note: Under the rule of this case, it would seem to be error for the court to charge the jury that "the plaintiff must recover, if at all, upon proof establishing the specific acts of negligence alleged in his petition," where some other act of negligence of the defendant has been proved by the plaintiff without objection on the part of the defendant.