THE VERDICT
A publication of GAPTA, Inc.
(Georgia Association of Plaintiffs' Trial Attorneys)
Vol.2s No.6 August 1960

PRESIDENT'S COLUMN

Mr. Cullen M. Ward, former pres­ident of this organization, and Mr. William F. Braziel, now serving as Executive Vice President, have returned from the National Convention in San Francisco and are reporting a highly successful convention. Outstanding lawyers throughout the country were in attendance and the seminars were reported to be among the best ever conducted.

The national organization is growing in numbers, popularity and strength. This national interest should inspire GAPTA to make even greater strides in Georgia in the end that the entire Bar of this

State will benefit by our efforts.

In the June issue of THE VERDICT, Your President called the members' attention to an important case now pending in the Court of Appeals styled Betty S. Cochran v. James Addison Bell. Jr. This case will be argued in the Court of Appeals during the September Term and there should be a decision shortly there­after.

Though that case is highly im­portant to plaintiffs' lawyers throughout the State, another case has recently been decided by the Court of Appeals which is like­wise of great import to plaintiffs' lawyers in Georgia. Among other problems those representing plaintiff's have is the delay in getting cases tried. This particular case involves a question of delay. The case is Johnson, et al. v. St. Paul Fire & Marine Insurance Company et. al., which was decided May 1, 1960. The opinion was written by Judge Bell, with Judge Felton and Judge Nichols concurring. The Court held that the mere allegation that an injured party has brought an action against an insured tort-feasor, does not establish a contractual relation­ship between the injured party and the insurer sufficient to bestow upon the insurer the basis for a declara­tory judgment proceeding and the collateral right to enjoin the in­jured party from continuing with his action. Quoting Judge Bell:

"The question for determination in this case is whether a plaintiff in a damage suit for personal injuries can be shanghaied into a declaratory judgment action because of a justi­ciable dispute with respect to an insurance policy between a defendant in the damage suit and the defendant's insurance carrier."

The issue as presented is of ex­treme importance because if the court had held such declaratory relief could be granted, it not only would have been an extension of the sphere of the declaratory Judgment law, but like­wise would have brought about long and unjust delays in the trial of law suits and would have been an abuse of the declaratory Judgment law resulting in travesties on true justice.

We are told much interest was mani­fested in this litigation and now that the issue has been settled once and for all, plaintiff trial lawyers can be grateful that the declaratory judgment law can not be turned into a law for the purpose of delay, only resulting in further hardships on plaintiffs.

Judge Felton concurred specially in the judgment for the reason that no justiciable controversy was alle­ged.

We wish to again urge all members of GAPTA to contact lawyers in their respective areas, urging their be­coming members of our organization.

Yours for a greater GAPTA,

OSGOOD O. WILLIAMS President

STAFF OF THE VERDICT ­

Editor ....................... William W. Daniel

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

BRIEF BAN K

We have received the following briefs in our Brief Bank:

ANTHONY ALAIMO, Brunswick

Plaintiff's brief in opposition to defendant's motion for summary judgment and to dismiss in which defendant and claimed that defendant was not negligent and that plaintiff's injur­ies were due to his own negligence. FACTS: Plaintiff, driving auto in downtown Tifton at 1:30 A.M. skidded into defendant's train at grade cross­ing. Plaintiff claimed: (1) No lighted barrier; (2) No warning; (3) Defendant failed to cut weeds, caus­ing obstruction to plaintiff's view; (4) Defendant failed to remove sand from street, causing plaintiff's car to skid; (5) Defendant's train was due at 11:45 P.M. so plaintiff had no reason to expect this train at crossing 1 hour and 45 minutes later. The brief discusses summary judgments and when they should and should not be granted as a matter of law, and also goes on to distinguish defendant's legal citations.

WILLIAM W. DANIEL, Atlanta

Workmen's Compensation brief discussing (1) Notice to employer and (2) Hernia involved and amount of compensation plaintiff entitled to as to. (1) NOTICE: Plaintiff alleged that within 30 days he notified defendant's store mana­ger, who denied notice, thus creating issue of fact. The Brief discusses exceptions to 30 days notice rule (Code 114-303). (2) COMPENSATION FOR HERNIA : Brief discusses compensation entitle­ment where plaintiff had had previous hernias, plaintiff claiming entitlement under Code 114-412, on ground of aggravation of pre-existing hernia if this not original hernia.

WILLIAM T. DARBY, Vidalia

This is an Appellate Brief filed in Court of Appeals on ruling on general demurrer in lower Court and discusses 3 questions: (1) Does a contractor constructing a bridge owe any duty to the public traveling thereon to warn them of dangers about the construction; (2) If there is such a duty, were defendant's acts of negligence, as specified in the petitioner's acts of misfeasance or nonfeasance; (3) If one defendant's specified acts were acts of misfeasance, then what was his relationship with the other defendant and with the construction itself? Plaintiff claimed one defendant was liable for his own acts of mis­feasance, regardless of any agency or employee relationship to anyone else.

S. GUS JONES & NEAL D. McKENNEY, Macon

Injuries received by Plaintiff from alleged sudden, violent, un­usual and unnecessary stop by bus in which plaintiff was riding. Plaintiff claimed he was "pinned" behind a seat and could not get out. Defendant claimed plaintiff was hurt when another passenger (unauthorized standing in the bus) fell on plaintiff. Brief quotes testimony and presents argument; discusses sudden stopping of bus.

Part II discusses defendant's Motion for Judgment Notwithstand­ing the Verdict, citing fact that defendant put up no evidence, opened and closed the arguments., and also citing Code 68-710 re­lating to prima facie evidence of want of reasonable care. Plaintiff argues he made out such a prima facie case, and therefore plaintiff's verdict should stand.

Part III argues against de­fendant's Special Grounds for a new trial, stating that the judge's charge was correct and citing Adams V. Evans 68 Ga. App. 544, 550 (3) where a similar charge was upheld.

Answering another point of de­fendant complaining of Court's failure to charge, plaintiff's brief quotes 100 Ga. App. 38, 39 (5): " It is not a valid objection to a charge that it fails to instruct the jury as to an issue not made by both the pleadings and proof."

Answering other of defendant's complaints as to the judge's failure to charge, plaintiff argues such re­quests of defendant to charge were not properly adjusted to the evidence and were properly omitted from the judge's charge.

MORE BRIEFS TO BE DISCUSSED NEXT MONTH.

FOREIGN CASES OF INTEREST FROM RECENT NACCA NEWS LETTERS
AUTO ACCIDENTS -PLAINT IFF, PUSHING STALLED CAR OFF HIGHWAY AT NIGHTTIME, STRUCK BY DEFENDANT'S VEHICLE -­ HELD, INTER ALIA, REVERSING & REMANDING JUDGMENT FOR DEFENDANT IT WAS ERROR TO INSTRUCT ON UNAVOIDABLE ACCI­ DENT -- FALSE ISSUE IN CASE. Pitner v. Loya, 350 P. 2d 230 (Okla. 1960) ( See 23 NACCA Law Journal 55 for cases condemning instructions on un­avoidable accident).

AUTO ACCIDENTS -- DEFENDANT'S TRUCK STRUCK PLAINTIFF STANDING OFF EX­ PRESSWAY ON SHOULDER -- DAMAGES -­ COLLATERAL-SOURCE RULE -- PLAIN TIFF 's UNCLE PAID PLAINTIFF $70 A WEEK -- HELD, GRATUITY PAID TO PLAINTIFF IN SUBSTANTIALLY AMOUNT HE WOULD HAVE EARNED DURING PERIOD OF DISABILITY WOULD NOT REDUCE DA­ MAGES PAYABLE BY WRONGDOER. Story v. Pless, 112 S. E. 2d 407 (Ga. App.1959).

AUTO ACCIDENTS -- CONTRIBUTORY NEG­LIGENCE - PLAINTIFF'S VISION OB­SCURED BY HEADLIGHTS OF APPROACHING CARS -- SHE REDUCED SPEED BUT NEVER­THELESS COLLIDED WITH DEFENDANT'S UNLIGHTED DARK COLORED CAR PARKED SQUARELY IN HER LANE - HELD< AFF'IRMING JUDGMENT FOR PLAINTIFF, JURY C OULD PROPERLY FIND PLAINTIFF FREE FROM CONTRIBUTORY NEGLIGENCE, Emer son v. Bailey, 156 A. 2d 762 (N.H. 1959) (Ct held that without prior warning or reason to antici pate danger ahead, due care does not require that every motorist must bring his vehicle to a stop upon the approach of headlights to await the diminution of the blind spot).

AUTO ACCIDENTS -- GUEST STATUTE -­ GROSS NEGLIGENCE -- BY DEFENDANT' S 16-YR.-OLD DAUGHTER DRIVING FAMILY CAR -- FAMILY-PURPOSE DOCTRINE. Honeywell v. Turner, 332 P. 2d 628 (Ore. 1958) (where defendants' minor daughter, using defendants' family car in a joy ride, drove 1941 Plymouth 60 m.p.h. over a rutty country road ("driving the dips") losing control of car which left the road & turned over, resulting in death of plaintiff's 12-yr.-old daughter, held aff'ming judgment for plaintiff i n death action, evidence upheld trial court's finding of gross negligence).