THE VERDICT

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

Vol. 3, No.8 September 1961

PRESIDENT'S COLUMN

Since the last issue of THE VER­JICT, I have been informed that interest in GAPTA on behalf of the Plaintiffs' Lawyers through­out Georgia has greatly increa­sed. The change in the membership status and dues has been approved overwhelmingly by the membership and this is a great step forward for us. I have also been informed that our membership is increasing by leaps and bounds.

Let me take this opportunity to express the appreciation of the membership to the Editor of our fine publication THE VERDICT. This is one of the best publica­tions of its kind in the nation, and I suggest that you save each issue for future reference as I am told that the Editors have bigger and better plans for our publication in the near future.

Don't forget our October Board Meeting which will be held in Athens on Thursday, October 26, at 5:00 P.M. in my room in the Continuing Education Building. All Members are invited to come and express their opinions before the Board and also to join with us in a convivial program after the meet­ing.

May I also suggest that you make ar­rangements to attend the next meet­ing of the Board in Atlanta in early December.

Two of the finest programs that our association has are our Brief Bank and our Appellate Committee. It is only when you have need of a brief on a particular case that you find out how helpful this program can be to you. In order for it to function it is neces­sary that each member contribute a copy of a brief to the bank. Do so today!

Our Appellate Committee is now functioning and each time you file an appeal to the Court of Appeals or the Supreme Court, please send copies to the chairman of the Ap­pellate Committee, Sam Hewlett, Jr., Healey Bldg., Atlanta 3, Georgia. Also, please keep him advised of all hearings, dates and assignments in the Appellate Courts so that he and his committee can be of assis­tance to you.

The success of any organization is based upon the cooperation of all its members. Let me express to you my personal appreciation for the cooperation that all of you are giving me during this year. With this kind of unity we can move on to greater heights.

Looking forward to seeing you in Athens on October the 26th,

Yours for a greater GAPTA,

Bill Braziel, President

RECENT GEORGIA CASES OF INTEREST

Buffington vs. New Hampshire Fire Insurance Company , 104 Ga. App. 139 holds that even where an automobile liability insurance policy is issued which provides that no male driver under 25 years of age is to drive the car and such a policy is issued in consideration of a substantial reduction of premium, this pro­vision does not relieve the in­surance company of liability as to damage caused by an isolated operation of the automobile by a male under the age of 25 years.

Atlanta Metallic Casket Company vs. Hollingsworth , 104 Ga. App. 154 holds that in order to authorize the Court to charge on the issue of whether brakes are capable of performing as required by the annotated Code in Sec­tion- 68-1715 (b) there must be ­evidence that the brakes have been tested and as to whether or not they meet the statutorial re­quirements.

Atlanta Baggage and Cab Co. vs. Atlanta Taxi Cabs et al. 104 Ga. App. 89 contains two very im­portant holdings: (1) Where there is no showing that a wit­ness who is not called to testi­fy is more valuable to one side than to the other it is error to charge the provisions of Code Section 38-119 which relates to a party not producing evidence he may have to repel a charge against him or a relying on evidence of an inferior nature. In this case the driver of the plaintiff's automo­bile, a bailee, was not used as a witness. The Court said that it was reversible error for the trial court to charge the provisions of Code Section 38-119. (2) The Court also held that "the casual connection between an original act of negligence and injury is not broken by an intervening act of a third person if the intervening act was such as could be reasonably anticipated or fore­seen by the original wrongdoer." Under the facts of the case, the defendant parked a taxicab on an expressway in the left hand lane a short distance beyond the crest of a hill and around a curve. One automobile traveling in the same lane was able to stop without colliding with the taxicab, but the next three ve­hicles in that lane of traffic crashed into the stopped vehicle. The plaintiff's automobile was the third of the four automobiles involved in the collision.

BRIEF BANK

The Brief Bank has recently re­ceived an amicus curiae brief filed in the Supreme Court of Georgia pertaining to the case of MRS. IRENE MURDOCK vs. REVLON, INC. reported in 103 Ga. App. 842. The Court of Appeals held that in an action on implied warranty the Plaintiff must be a purchaser directly from the manufacturer or from a wholesaler or retailer of the goods consumed. The action was brought under Ga. Code Section 96-307, based upon the 1957 Act of the Georgia Legislature (Ga. Laws. 1957, Page 405). This brief in support of the plaintiff's application for certiorari supported the contention that "To hold that a man who buys his wife a fine bottle of perfume manu­factured by Revlon, Inc., advertised over the national television pro­grams repeatedly by a movie showing the wife applying the fine perfume behind her ears, that the wife could not sue Revlon, Inc. if that bottle exploded in her face would be contrary to all principles of justice and law and would permit the manufacturer, through defective goods, bottles, or packages, to injure and maim the consuming public without a penny for tri­bute." The Brief in its discussion of implied warranty goes from the "stagecoach era" into the "television-jet age". It is highly informative and a copy of it would certainly be of interest and aid to anyone prosecuting an action on implied warranty under Ga. Code Section 96-307. Our thanks to the amicus curiae, Messrs. Cullen M. Ward, Osgood O. Williams, J. R. Cullens, William F. Braziel, Ernest McDonald, S. Gus Jones and Neal D. McKenney, Harold Karp, and Tate Conyers.

WANTED BY A GAPTA MEMBER

The Brief Bank has had a request for briefs and copies of pleadings pertaining to damages from a doc­tor for breach of contract, that is, failing to cure his patient or correct, through surgery, a deformity as promised, and also per­taining to damages against a doctor under the theory of assault and battery for performing an operation different from that to which his patient consented.

The Bank does not have the above, but if any member does, would you please forward copies to the Bank for use by our members.

It might be noted that from time to time if members need briefs along any lines, the Verdict will be glad to carry wanted notices for the same. The identity of lawyers requesting particular type briefs will be held in confi­dence.

CASES OF INTEREST FROM RECENT NACCA NEWS LETTERS

INDUCEMENT OF BREACH OF CON­TRACT - ACTION UPHELD BY PLAIN­TIFF'S ATTORNEY AGAINST INSUR­ANCE CO. & AGNET FOR MALICIOUS, UNPRIVILEGED INTERFERENCE WITH ATTORNEY'S CONTINGENT FEE CON­TRACT WITH CLIENT - 1ST - IM­PRESSION CASE IN CALIFORNIA ­PLAINTIFF'S ALLEGATIONS HELD TO STATE GOOD CAUSE OF ACTION. Herron v. State Farm Mutual Ins. Co., 10 Cal.Rptr. 120 (Cal. App. 1960) (accord: Greenberg v. Pana­ma Transport Co., 185 F. Supp. 320 (D. Mass. 1960) (in awarding dam­ages for employer's interference with contingent fee contract be­tween attorney and seaman-client, Court held that federal law governed both validity of retainer and right to recover for inducing breach of contract), NACCA News Letter, Vol. 4, No. 2 (Feb. 1961), p. 19; id., Vol. 3, No. 9 (Aug. 1960 - 'Editor's Scratch Pad ), p. 3).

AGAINST INSURANCE COS. - AUTO LIA­BILITY POLICIES - OMIBUS CLAUSE COVERAGE - SUBPERMITEE HELD AN AD­DITIONAL INSURED & WITHIN OMNIBUS CLAUSE - ACTUAL USE OF CAR AT TIME OF ACCIDENT HELD TO BE WITH "INITIAL PERMISSION" OF NAMED INSURED ­FALSE STATEMENTS BY PERMITEE & SUBPERMITEE GIVEN TO INSURER BUT IM­MEDIATELY CORRECTED HELD NOT TO CONSTITUTE VIOLATION OF COOPERATION CLAUSE. Garland v. Audubon Insurance Co., 119 So.2d 530 (La. App. 1960).