THE VERDICT
A Publication of GAPTA, Inc. (Georgia Association of Plaintiffs' Trial Attorneys)
Vol. 4, No. 1 March 1962

PRESIDENT'S COLUMN

Our GAPTA Seminar will be held at the DeSoto Hotel, Savannah, Georgia, on March 2 and 3.

This is going to be the biggest and best seminar that we have ever had. We will have a real "bread & butter" program. We plan to utilize outstanding Georgia lawyers talking on Georgia law and problems as much as possible.
During the Annual Meeting of the Georgia Bar Association in June, GAPTA is planning some kind of entertainment for our members and their wives during the State Convention. We will let you know the details of this later on.

I hope to see you in Savannah Mrch 2 & 3!

Yours for a bigger and better GAPTA,
WILLIAM F. BRAZIEL, President

RECENT GEORGIA CASES OF INTEREST

ACTION FOR DESTRUCTION OF HOUSE BY BURNING - AGAINST MANUFACTURERS 0F THE FURNACE AND FURNANCE REGULATORS AND INSTALLERS. The petition alleged that the blower control system was defective and this caused the furnace to heat excessively, that the manufacturer of the furnace placed inflammable material in the furnace walls for insulation and that the defendant installer was negligent in knowingly installing a gas furnace which was defective. The Court sustained the general demurrers filed by the manufacturer of the regulator control and the general demurrer filed by the furnace manufacturer. However, the Court concluded that the petition stated a cause of action against the installer. Elrod v. King, 105 Ga. App. 46. The Court said that since the petition alleged actual knowledge on the part of the installer that this amounted to an intervening cause which would relieve the manufacturers from any negligence they might have had.

RELEASE - MUTUAL MISTAKE – Where a person receives personal injuries which both the injured person and an insurance adjustor, based on a medical report, thought that the injuries were superficial and that "she would be all right in a few days" and where the injured person signed a release releasing the opposite party of all claims, "known and unknown, foreseeable and unforeseeable and personal injuries … and the consequences thereof resulting or to result" and where when the plaintiff received a check or draft, the same was returned to the company, this nevertheless releases the defendant from all injuries even though there was a mutual mistake of fact about the seriousness of the injury which the plaintiff sustained. Kennedy et al v. Bateman, 217 Ga. 458. Justices Head and Mobley dissenting.

The case of Gore v. Gore, 217 Ga. 478, makes the interesting holding that where a petition is filed to rule a party in contempt of Court for failure to comply with the decree of the Court, it is not necessary for the petition to be verified.

DECEIT - FAILURE TO INSURE – A petition which alleges that an insurance agent represented that he had issued a binder insuring certain property when he knew he had not done so, or which alleges that he promised he -would issue a binder, when in fact he did not intend to do so, and which also alleges that he made these misrepresentations in order to make the plaintiff believe that she was insured as of the time she talked to him, when in fact she was not, and which alleges that the plaintiff relied upon the misrepresentation and sustained a loss as a result thereof, states a cause of action for deceit against the insurance agent. Clark v. Kelly, 217 Ga. 449, reversing 104 Ga. App. 169.

The case of Shaw V. Thomas, 105 Ga. App. l2, holds that where a person is playing golf he assumes the risk of being struck by a hooked or sliced ball hit by a golfer in another fairway and it is not necessary for a golfer to callout "fore". However, the Georgia Supreme Court has reversed the Shaw case according to the Atlanta Journal, February 22, 1962.
HEARSAY EVIDENCE - DECLARATIONS OF DECEDENT - Where a decedent is injured, her administrator is entitled to introduce in evidence testimony of her physician describing how decedent told him she was injured. The Court concluded that this evidence was admissible where there were no other eyewitnesses to the injury, and the jury may attach such weight to the declarations of the plaintiff, as it might deem proper. Moore. v. Atlanta Transit System, 105 Ga. App. 70.

STAFF OF THE VERDIQT

Editor…………………….William W. Daniel

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

CASES OF INTEREST FROM RECENT NACCA NEWSLETTERS

5TH Circuit
COLLATERAL - SOURCE RULE APPLIED TO SOCIAL SECURITY PAYMENTS & VETERANS PENSION—LONGSHOREMAN’S ACTION AGAINST SHIPOWNER--FALL
FROM GANGWAY LADDER WHILE LEAVING SHIP--UNSEAWORTHINESS--NEGLIGENCE--AGGRAVATION OF PRE-EXISTING ARTHRITIC CONDITION OF SPINE, PERMANENT INJURY PRECLUDING PLAINTIFF PROM FUTURE MANUAL LABOR -- YEAR BEFORE ACCIDENT EARNINGS WERE ABOUT $400 A YR-- DAMAGES --COLLATERAL-SOURCE RULE- HELD, TRIAL CT PROPERLY EXCLUDED DEPENSE EVIDENCE THAT PLAINTIFF WAS ENTITIED TO RECEIVE SOCIAL SECURITY PAYMENTS & A VETERANS PENSION WHICH WOULD BE CUT OFF OR REDUCED IF PLADJTIFF' S EARNINGS EXCEEDED $1,200 A YR—DEFENDANT WANTED TO SHOW PLAINTIFF’S DESIRE TO RETAIN SUCH BENEFITS AS A REASON FOR PLAINTIFF TO LIMIT HIS EARNINGS--5TH CIRCUIT EMPHATICALLY HOLDS THAT EVIDENCE OF SOCIAL SECURITY PAYMENTS & VETERANS PENSION IS EXCLUDABLE IN TRIAL BY PLAINTIFF AGAINST 3D PARTY TORTFEASOR. A. H. Bull Steamship Co. v. Ligon, 285 F.2d 936 (5th Cir. 1960).

District Court for District of Columbia DISCOVERY --PLAINTIFF INJURED WHEN ALIGHTING FROM DEFENDANT’S BUS--DEFENDANT CARRIER REQUIRED TO PRODUCE ITS PRIVATE RULES--VIOLATION OF DEFENDANT. EMPLOYER’S OWN RULES MAY BE CONSIDERED IN DETERMINING WHETHER DEFENDANT WAS NEGLIGENT--SHOWS EVIDENTIARY VALUE OF DEFENDANT'S SAFETY RULES IN A NEGLIGENCE ACTION--WHILE QUESTION HAS OPEN ONE IN DISTRICT OF COLUMBIA, CT WAS “IMPHESSED BY THE FACT THAT IN SOME THREE-FOURTHS OF THE JURISDICTIONS WHICH HAVE CONSIDERED THE ISSUE PRIVATE RULES OF AN EMPLOYER, PROMULGATED TO HIS EMPLOYEES, AND SIMILAR TO THE RULE'S INOLVED HERE WERE HELD ADMISSIBLE” (at 787) --50 A.L.R. 2d at p. 19--CARRIER THEREFORE ORDERED TO PRODUCE COMPANY RULES HELD WITHIN SCOPE OF RULE 26(b) OF FED. RULES OF CIVIL PROCEDURE. Schneider v. D. C. Transit System, Inc., 188 F. Supp. 786 (D. D.C. 1960)

Oregon NEW TRIAL--JUROR MISCONDUCT--AUTO ACCIDENTS—DURING TRIAL, JUROR DROVE HIS CAR OVER STRETCH OF HIGHWAY WHERE ACCIDENT HAD OCCURRED & REPORTED TO REST OF JURORS DURING THEIR DELIBERATIONS THAT HIS OBSERVATIONS CONTRADICTED PLAINTIFF'S WITNESSES-HELD, REVERSING & REMANDING JUDGMENT FOR DEFENDANT, SINCE REVIEWING CT DID NOT (BECAUSE OF CONFLICT IN SCHEDULE OF RESPECTIVE COUNSEL) HAVE BENEFIT OF TRIAL CT'S DISCRETION RE WHETHER OR NOT JURY HAD BEEN INFLUENCED BY JUROR'S MISCONDUCT, REVIEWING CT COULD NOT SAY THAT MISCONDUCT HAD NOT INFLUENCED VERDICT, NOTWITH STANDING AFFIDAVITS FROM 10 OF THE JURORS TO GENERAL EFFECT THAT THEY HAD NOT BEEN INFLUENCED BY ANY STATEMENT MADE BY OFFENDING JUROR- -JUDGMENT FOR DEFENDANT REV'D--TESTIMONY OF POLICE OFFICER (CALLED BY DEFENSE) HE LOCATION OF POINT OF IMPACT IN ST HELD INADMISSIBLE (SEE 66 A.L.R. 2d 1043). Thomas v. Dad's Root Beer & Canada Dry Bottling Cool 356 P.2d 418 (Ore. 1960)
New York INDEMNITY--EMPLOYER PURCHASER'S RECOVERY IN WARRANTY AGAINST SELLER FOR WORKMEN'S COMP. PAID TO EMPLOYEE, -- ACTION BY EMPLOYER WHO HAS PAID COMPENSATION TO INJURED EMPLOYEE -- AGAINST SUPPLIER OF DEFECTIVE PART WHICH INJURED EMPLOYEE--BREACH OF WARRANTY -- DAMAGES MAY BE MEASURED BY AMOUNT EMPLOYER PAID IN COMPENSATION--1ST-IMPRESSION CASE. General Aniline & Film Corp. v. A. Schrader & Son, Inc., 215 N.Y.S. 2d 861 (App. Div. 1961)(ct holds that employer-purchaser can maintain warranty action against seller for compensation paid injured employee; workmen's compensation subrogation provision no bar) (see Frumer & Friedma.n. Products Liability, § § 44. 02 L3I Lf_1 44.
03 8-1(1960)).