PRESIDENT'S MESSAGE

Dear GTLA Member,

Thank you for the privilege of being your president this year. These are trying and perilous times for our profession, and I will need the support of everyone of you to meet the demands facing us this year.

The spring seminar was a great success. Our thanks go to Andy Estes, Cullen Ward, Tom Malone, Millard Shepard, Gus Jones, Sandy Clower and Jake Cullens.

At our spring meeting in Atlanta, our name was changed to Georgia Trial Lawyers Association. The reason for changing the name of our association is to broaden our membership.

It was voted that new members would sign an application conveying the following statement: "I am an attorney and member in good standing of the State Bar of Georgia. I certify that I an not engaged primarily in the defense of injury litigation."

A by-laws committee has been appointed to draw up new by-laws, which will be presented at our business meeting held in connection with the State Bar meeting in Savannah. The business meeting is scheduled for Thursday afternoon, June 1, at 2:30 at the DeSoto Hilton.

A membership drive is underway and needs to be completed by June 23. Our commitment is 500 members by that time. You will be called upon in the next few days to assist the membership committee in reaching this goal.

The insurance industry is spending billions to sell the concept of no-fault insurance to the American public. So far, they have done a good job. There is great pressure on our legislature from the general public to enact no fault legislation in Georgia.

The House Insurance Committee under Chairman Roy McCracken held its first meeting on "no-fault insurance proposals" at the State Capital on May 1011 at 10 o'clock. This meeting as well as all future meetings are open to the public. The purpose of the first meeting was to find out who wanted to appear at the various meetings throughout the year and to set an orderly procedure and agenda for the hearings. For our sake, I entreat you to attend as often as you can. We must seek to keep the General Assembly and the general public informed...on both sides of the issues.

James I. Parker, President

EDITOR'S NOTES

During our last legislative session, several no-fault insurance bills were introduced in the House of Representatives. They were assigned to the Insurance Committee, which very properly formed a No-Fault Insurance Study Committee consisting of the entire Insurance Committee. It has been noted by the Insurance Committee in several public meetings that the subject of no-fault insurance is so complex and confusing, that there are more than 37 different identified no-fault concepts, that the concept is so untried, that there is virtually no comparable experience available to study, and that this issue should be studied in great detail before the Insurance Committee can make a recommendation in any event. THE VERDICT applauds the very sound discretion exercised in that regard.

On May 10 the Insurance Committee convened, and after some procedural discussion, adjourned to meet again on June 7-8 for a 2-day educational seminar. At that time, the subcommittee will announce its itinerary of public hearings to be held throughout the state. Obviously, some Georgia Trial Lawyers Association members should be present at each hearing. Your executive committee is on the subcommittee's mailing list and will give you ample advance notice of such meetings.

Additionally, the legislature acted favorably upon Items 1, 11, 19,23,25 and 27 of the "Recommendations of the Governor's Commission on Judicial Processes", enacting appropriate legislation concerning the following subjects: Integrity of the judicial process; misdemeanor cases on accusation in the superior court; superior courts; age of majority; dispersing the jury; electronic surveillance.

Next year legislation will be considered on such subjects as 6 -man juries, majority verdicts (civil and criminal) the unsworn statement, negotiated pleas, pattern jury instructions, criminal discovery, and other legislation, all of which will amount to a more radical change in the practice of trial work than the enactment of the civil practice act. Many of these proposals are vital, necessary and beneficial to practicing trial lawyers. Some proposals, no doubt, we will find repugnant. Nevertheless, every member of the Georgia Trial Lawyers Association should be intimately familiar with the entire judicial reform program and be able to express himself at the appropriate time. I believe the Governor's Commission Chairman, Judge Robert Hall of the Court of Appeals, is absolutely correct when he has publicly suggested that enactment of a good number of these measures relating to civil litigation will virtually eliminate the sometimes valid criticisms of our system leveled by the no-fault proponents. Certainly we all agree that rejuvenation of our system of justice is far preferable to its extermination.

Additionally, the legal abolishment of workmen's compensation subrogation against third party recovery, is an act which has long been overdue and happily received by all of us.

Forrest Brown of Brown and Huseby, court reporters, gratuitously and graciously provided a transcript of Prof. David J. Sargent's address on no-fault insurance. THE VERDICT has reprinted this address in its entirety for your interest and your continued use. Keep this article. It is a powerful document.

Lastly, GTLA will have in Atlanta a permanent telephone as of June 15. The mailing address is: P. O. Box 77252, At1anta,Georgia 30309 for general correspondence. During the next year we are hoping that by providing these facilities, the membership will be able to improve its communication in a critical upcoming year. In that connection, please send your full address and telephone number to our address.

Thanks to the many fine contributions to this issue. Please send newsworthy items, commentaries, case notes and articles to me at 2150 National Bank of Georgia Bldg., Atlanta, Ga. 30303.

P. S. As we were going to press, today the U. S. Senate Commerce Committee passed out a vicious version of a no-fault bill.

Seriously yours,

Andrew W. Estes, Your Worried Editor

CALENDAR OF COMING EVENTS

ATL ANNUAL CONVENTION – July 23-29, 1972
Chase Park Plaza
St. Louis, Mo.

FALL WORKSHOP - September 22-23, 1972
DeSoto Hilton
Savannah, Georgia

SPRING SEMINAR - April 7-8, 1973
Atlanta American Hotel
Atlanta, Georgia

GREAT FAULT IN NO-FAULT

By David J. Sargent

Note: David J. Sargent, once an advocate of the no-fault concept, is now just as adamantly sure that the current proposals offer no relief to the problems of personal automobile injuries and losses. A law professor at Suffolk University in Boston, Massachusetts, Mr. Sargent delivered the following address at the Georgia Trial Lawyers Association's annual meeting in Atlanta on March 10, 1972. The address was accurately and graciously transcribed by Forrest M. Brown, of the firm of Brown and Huseby, court reporters of Atlanta. To Mr. Brown a word of thanks from THE VERDICT.

Ladies and Gentlemen, it is a great pleasure to have the opportunity to be back in Atlanta to discuss with you the problems of automobile insurance. I think that all of us can agree that, indeed, there are problems; there are problems with regard to the arbitrary cancellation of policies, particularly for the elderly. There are problems with regard to the arbitrary assignment of people to assigned-risk pools, where they pay prohibitive insurance rates. There are problems with regard to so called redlining practices, whereby the inhabitants of certain neighborhoods, usually non-white, find it almost impossible to buy insurance at any price. There are problems with regard to insurance rates and it is my opinion that the Keeton-O'Connell plan, the American Insurance Association plan, Governor Rockefeller"'s plan in New York, the Massachusetts law, the Illinois law, really don't even address themselves to these problems.

As a matter of fact, they remind me of the story of the man who was about to commit suicide, and as he was hanging our over the edge of the triage, trying to get up his courage to jump, he felt a tug at his sleeve, and he turned and looked and saw this extremely aged woman. She asked him what the trouble was, and he explained to her he was a compulsive gambler, and that he had lost all of his money. Finally his wife had left him in despair, and so he had stolen $10,000 from the bank where he worked, thinking he could recoup his losses by gambling with that. Lo and behold, that was gone, too, and it was only a matter of a day or two before the bank found out that he was a thief.

And this old woman said, you know, things aren't so terribly bad, I am a witch, and if your are willing to pay my price, I can grant you any three wishes you desire. He says gosh, I am in no position to bargain with you. I will do anything. He said I wish my wife would come back, he said I wish the bank wouldn't find out I am a thief, and I wish I had a little operating capital so I could get back on my feet financially.

This old lady snapped her fingers and she said, right now your wife is on her way home with love in her heart, there's $10,000 back in the bank, and no one will ever know it's gone, and there's $2,000 standing to your credit in the checking account.

He looked at her and smiled and he said, gee, how can I ever thank you, that's absolutely wonderful. She said, well, my price is that YDU will have to spend the night with me. He looked at this extremely old and haggard woman and he shook his head at her and said, gee, that's a terribly high price to pay, but -considering what you've done for me, I guess that's the least that I can do.

So the next morning as he was preparing to leave, this old lady looked up at him and she cackled saying, how old are you, Sonny? He replied thirty-five. She said isn't that kind of old to believe in witches?

So, if the no-fault plans are ever enacted in the state of Georgia, you will wake up in the state of Georgia to find that none of your old problems have gone away, and you have got some new ones that you never dreamed of before.

I would like to start my discussion with you this afternoon by reminding all of you of the compulsion that presently exists throughout the United States for motorists to buy automobile insurance. That compulsion in three states is complete, in New York, North Carolina and Massachusetts, but in the state of Georgia and all of the other forty-six states, there's a great amount of compulsion via so-called financial responsibility laws.

Professors Keeton and O'Connell, and many other people, would have us substitute one form of compulsory insurance for another, and the public thinks that all that really means is just a change in the insurance system. But, the truth of the matter is, that we are talking about a change in out basic legal system.

From the very beginning of this country, if a man was injured in any way, other than in a workmen's compensation-type case, and he sought recovery for his injuries from another, he proved fault on the part of that other person. He was entitled to recover, assuming he was innocent and proving casual relationship, for all of the loss of earning capacity that he had 'sustained, without any deduction. He was entitled to recover for "all of his medical expenses without any reduction. He was entitled to recover for all of his general damages, his pain and suffering, or as I sometimes call it, his loss of enjoyment of life.

By the same token, if that man injured himself through his own neglect, then he was left to whatever he had voluntarily seen fit to set aside for this kind of contingency, his sick leave, his Blue Cross, his Blue Shield.

Keeton-O'Connell, Governor Rockefeller, Senator Hart on the federal level, they would abolish our concept of negligence, our distinctions between right and wrong, and substitute in its place the philosophy that it really doesn't matter how you drive your car, you are still entitled to recover under the no-fault plans proposed, at least some of them in the state of Georgia. Compensation would be paid to the drunken driver, compensation would be paid to the dope addict operating under the influence of narcotics, to the man who crashes his motor vehicle while trying to elude the police, to the teen-ager who participates in a drag race on a crowded highway and crashes head-an into an oncoming motor vehicle.

Now, I think it fair to stop and ask ourselves the following question, if you are going to grant some kind of payment to those wrongdoers who are denied compensation under our traditional system of justice, how do you propose financing the payment to them? And the answer is very simple, you take benefits away from innocent victims in order to be able to give the same kind of nominal, token benefits to both innocent and guilty alike. I think that that violates the most basic principle of fair play and personal responsibility.

I am not opposed to no-fault insurance, I am not opposed to a system whereby both the innocent and the guilty recover certain benefits, and the innocent people are left free to recover for the difference between what they have already been paid and 100% recovery. But, I am opposed to the so-called reduced benefit plans that we have in this country, whereby you take most of the benefits away from the innocent in order to finance the same kind of minimal benefits to both innocent and guilty alike.

The charm of no-fault insurance, you recall initially, was that it was going to cost you less money than a comparable amount of liability insurance at today's rate. The basis of that claim initially was an actuarial study done by a Mr. Harwayne, who is in the Insurance Department of the State of New York. Certainly Mr. Harwayne is a very well respected actuary, he said that a minimal amount of no-fault insurance under the then Keeton-O'Connell plan, would cost 15 to 25% less than a minimal amount of liability insurance costs today.

But, I think you ought to know this, there are some other well-respected actuaries who have come up with some very different conclusions. For example, Mr. Robert Bailey, who is the chief actuary of the state of Michigan looked at Mr. Harwayne's actuarial estimate, and in detail took up four of the twenty-nine variables that go into that study. In the four that he studied in detail, Mr. Bailey said he found errors of as much as 100% which caused him to believe that there was really no basis for a suggestion that there will be truly any saving.

I think you also might be interested in knowing that a Dr. Calvin Brainard, who is the Chairman of the Department of Finance and Insurance at the University of Rhode Island, did a one-year study on the economic feasibility of the Keeton-O'Connell Plan, and when he concluded that study, he went to the public and told them that if he were going to advise the motoring public on the suitability of no-fault insurance, he would have to break that public down into two groups, the traditionally good driver and the traditionally bad driver. His advice to the good driver is that you should abhor these plans, because they will cost you more money and give you less benefits. His advice to the traditionally bad-driver group is that you should embrace these plans because they have been made-to-order for you.

Now, it is interesting to note that Dr. Brainard, who did this one-year study on the economic feasibility of the Keeton-O'Connell Plan, did so under a grant from the Walter E. Myers Foundation. That happens to be the same foundation that gave Professors Keeton and O'Connell tens of thousands of dollars to come up with their plan, and when they concluded their plan, they then commissioned Dr. Brainard to do an economic feasibility study, and in short, he concluded that it was not economically feasible.

But, if it is going to cost you more or less, I think we ought to stop and talk about in relation to what. It is going to cost you more or less in relation to the benefits that you get. It is obvious, I am sure, to everyone, that you can reduce the cost of every kind of insurance policy by reducing the benefits that are payable under its terms. Certainly a $10,000 life-insurance policy sells for a smaller premium than one that pays $20,000 upon the occasion of death.

Under the Keeton-O'Connell Plan, this estimate of a 15 to 25% reduction of Mr. Harwayne's was based upon the fact that every motorist would buy an accident and health policy. And if that motorist or any occupant of his motor vehicle or any pedestrian received an injury, which arose of the ownership, maintenance or use of that motor vehicle, then such a person would be entitled to recover on a no-fault basis something called net economic loss.

Net economic loss was computed by adding together your wage loss plus medical expenses, and then deducting from that, under the Keeton-O'Connell Plan, first of all, collateral sources that you either receive, Blue Cross, Blue Shield, fringe benefits, sick leave, Medicare, Medicaid, social security and the like. And then if you had any losses above and beyond that, you then had to deduct an additional 15% of your wage loss. And if you had any losses above and beyond collateral sources, plus 15% of the wages, you then had to deduct the first $100 out-of-pocket loss of an economic nature, and note that under no circumstances was your own automobile accident- and health insurance carrier responsible for general damages, pain and suffering.

Now, if the objective 1s to give to the public of this country cheap insurance, you can do so in a much more effective, much more direct and much more honest way. Simply take the same deductibles that are in the Keeton O'Connell Plan and put them into the existing tort-liability system. How much would it cost in the State of Georgia to write an insurance policy on a liability basis, if, after you determined fault, the insurance carrier of the wrongdoer was not obligated to pay for economic losses to the extent that the victim had collateral sources, bearing in mind that more than 85% of the public of this country have some collateral sources, didn't have to pay for economic loss to the extent of the first 15% of wage loss above and beyond collateral sources, didn't have to pay for the first $100 of out-of -pocket loss on top of the first two deductions, and never had any exposure to liability for pain and suffering, general damages.

Put those same deductibles into the tort-liability system and you ought to be able to give that policy away, because almost no one is going to get any benefit. And, as has already been demonstrated in Massachusetts, almost no one receives any meaningful benefits under the type of no-fault insurance that they have in that jurisdiction. Why don't you pay for at least actual out-of-pocket losses? Why do you force a man to deduct the first $100 of his own economic loss? The answer is that you need all of that money, and much more, in order to be able to finance the same kind of token benefits to everyone and not have it cost a great deal of money from a premium point of view.

Under the Keeton-O'Connell Plan, that meant that if a man happened to be out for a ride with his wife and three children, and he's hit in the rear end by a drunken driver, or any other kind of wrongdoer, the head of that household could have a $500 out-of-pocket loss in a motor vehicle accident that was not his fault. Why don't you pay him? You need that money to pay the drunk the same kind of benefits as his innocent victims. You have got to parcel it out among more people theoretically.

Some people will tell you that the reason the drunken driver, as well as all wrongdoers, presents a very unique social problem, and that when someone is injured, society is best served by making sure that he gets prompt and adequate medical attention, and that as soon as possible he is restored to society as a productive member of society. They will tell you, whether he was drunk or not, certainly he has got a lovely wife and some fine children, and someone has got to take care of paying the rent and buying the groceries. So let's do it on a no-fault basis, when he is injured in a motor-vehicle incident.

But, isn't it peculiar that if that drunk should slip and fall on a dirty, old banana peel in a barroom that had been negligently left there by the owner of the barroom, his own contributory negligence would undoubtedly deny him the right of recovery, even though he has got the same economic pressures. If he should manage to stagger out onto the street and fall on a defect in the sidewalk that had been negligently allowed to exist, then he wouldn't recover either. But, boy, if he can just hang on until he gets to his motor vehicle, then his problems are over.

And he doesn't have to have an accident in the ordinary sense of the word, all he has got to do is bump his head, under most of the plans, getting into the car, or dead drunk, rollout of the car onto his neck, or better still, get behind the wheel and back it into a hydrant, and he is entitled to recover.

We have spent millions of dollars in this country trying to convince the public that alcohol and gasoline don't mix, and now comes a law along that says the one place where the drunken driver can be and still be compensated is in his own motor vehicle.

If Professor Keeton were here today, he would tell you that the drunk may be a colorful illustration, but he would say it is not really the core of the problem. I think it is. I think the drunken driver is a very, very real, significant part of our problem. Last year, 26,000 Americans were killed by drunken drivers, and Dr. William Haddon, in referring to that figure, said, "I am not talking about those people being killed by someone who has had a drink or two socially," he said, "I am talking about 26,000 Americans being killed by people who had consumed one pint or more shortly before getting behind the wheel of their car." And Keeton will say, yes, that is true, but then he will tell you that alcohol doesn't playas significant a role in the nonfatal case.

To repeat that, I would point out to you about eighteen months ago in England, some very stringent laws were adopted concerning the use of breathalyzers and some very stiff sanctions for the people who failed the test. In the first one month after the adoption of those tough laws in England, the overall accident rate dropped by 40%. What would you think in the state of Georgia if you could reduce your number of automobile accidents in one month's period of time by 4070? Probably no-fault insurance would not be the subject of this discussion this afternoon. That is an amazing statistic.

I think we ought to be concerned with getting the drunk off the highway, and I don't think it should be a haven for him. I don't think that you ought to be taking benefits away from innocent people in order to compensate him. If your social philosophy is still that everybody ought to be taken care of, the wrongdoer, the drunken driver and his family, then I suggest to you that the automobile is not the logical place to either start or stop. Sixteen times more people are injured in non-highway accidents than are injured on the highway. Let's take care of them. Four times as many people are injured in their own homes, where most of them don't even have a theory of recovery, why not take care of them, too. They have got the same economic pressures as the man who injures himself in a motor vehicle accident.

If you have compassion for the man who voluntarily becomes intoxicated and injures himself in a motor vehicle accident, don't you have as much compassion for the man who develops lung cancer? Let's take care of him. Maybe what this country wants, although I am not advocating it, is a system whereby, if a man is unable to work because of either injury or illness, we will pay him wages and his medical expenses. But you don't need a system of insurance to do that. You can fund it much more cheaply through social security. As a matter of fact, there have been several suggestions to do just that.

The automobile, in my opinion, is not an acceptable place to start a socialization of this kind of injury problem.

The key to no-fault insurance, however, is not the problem with regard to the elimination of collateral sources, it is not the problem with regard to whether you have to deduct a hundred dollars out of your economic loss before you are entitled to recover your economic loss before you are entitled to recover some additional economic losses, or whether you have to take out 15 or 25% of your wage loss, all of that can change and does change often from one jurisdiction to another.

No-fault insurance, as we know it in most jurisdictions in this country, although not all, really is an ill-conceived attempt to hide the fact that the insurance industry no longer wants to make payment for general damages. The insurance industry couldn't care less about fault as opposed to no-fault. This is simply the vehicle by which they are attempting to eliminate their obligation to pay for general damages. They no longer want to tailor the dam ages to the individual. They want to have this all a proper ingredient for a computer operation. They want to be able to feed information into a machine about number of weeks out of work and what the average weekly wage was, and the medical bills, and a check pops out at the other end when they want it to pop out.

But they don't want to talk about individual hurt. They don't want to talk about tailoring damages to the individual, which has always been the principle of court law. That is what they are attempting to do. Why don't you want to make payment for pain and suffering? Well, some people will tell you because it is not capable of exact ascertainment. They will tell you that if someone is stretched out on a Stryker frame for three weeks, you should not give him dollars because you can't translate that into dollars, you can’t compensate him of suffering nothing.

But, it is peculiar that pain and suffering is not so difficult to determine in any kind of case, except a motor vehicle injury case. Under these plans you will note that all they attempt to do is eliminate the obligation to pay for general damages in motor-vehicle injury incidents, but not in other kinds of incidents.

If you break your leg in a slip-and-fall case, miraculously they can still measure the pain and suffering. If you break your leg in an automobile incident, you get nothing for the pain and suffering under most of the plans. Why not? I think that is rather conclusive proof that pain and suffering is measurable, and its elimination under the no-fault plans is simply an attempt to cheapen the cost of the product by drastically cheapening the benefits that are recoverable under the terms of the policy.

All of the no-fault plans that you have read so much about other than those in Oregon and Delaware do exactly that. In Governor Rockefeller's plan in the state of New York, Senator Hart's plan, you have pure no-fault insurance. Everybody buys an accident and health policy on a compulsory basis, according to the terms of which your medical bills are paid and a portion of your wage loss is reimbursed to you. You never, under those jurisdictions, recover for pain and suffering.

Even the paraplegic gets absolutely nothing. If he happens to be retired at the time when he sustains the injury, then all he gets is his medical bills. What he has is a very expensive medical payments insurance policy. All he gets in benefits is just economic loss and nothing more.

Under the plan in Massachusetts, the version of which is now before a study commission in the state of Georgia, a different attempt is imposed to either eliminate or drastically curtail the right to recover for pain and suffering. That is a so-called threshold approach, that's not pure no fault.

Again, they make everybody buy an accident and health policy, according to the terms of which any occupant of the motor-vehicle or any pedestrian injured thereby, is entitled to get a portion of their wages, plus their medical expense, up to certain limits. But, in Massachusetts, they say if you are not happy with those no-fault benefits, you are still entitled to sue the wrongdoer except that when you sue the wrongdoer, number one, he has got an exemption from liability to the extent of the economic losses which you have already been paid, and you can't quarrel with that, and he also has a complete exemption from tort liability for pain and suffering, unless you prove that there are more than $500 in medical bills or that there's a serious and permanent disfigurement or a fracture, a loss of a body member, or death has resulted, or there is a complete loss of sight or hearing.

Note one big, critical area that is left out, his loss of function. You can have loss of function of a limb, and if you don't meet that $500 threshold for medical bills, then you are not entitled to recover from pain and suffering. Why not? That I think is an extremely discriminatory portion of, the bill. That means that if you're black and you live in the city of Boston, in the ghetto area called Roxbury, you probably get your medical treatment free at the Boston City Hospital, you might even go to the Boston Evening Clinic where you pay $3 or $4 a visit, you might even go to a private doctor, but you can't find one who practices in that locale who charges you more than $7 or $8 per visit.

But, if you are white and you live in the affluent belt that surrounds Boston, the traditional charge for the initial examination and writing the report in a motor-vehicle injury case is $25, and $15 for every visit thereafter. So for the same injury, the rich man reaches that threshold which enables him to recover for pain and suffering much more quickly and much more surely than the poor man does. And it seems to me it's going to take the Christian Scientists a long time, indeed, to get $500 in medical bills. Is that equal protection of the law?

Under the Illinois plan, they, too, require that every policy that is written have the accident and health feature included in it. It pays you on a no-fault basis for a portion of your wage loss, plus your medical expenses, and then they say, well, we think you ought to be able to recover for pain and suffering, we agree that that is an important part of the recovery, but we will allow you to recover for pain and suffering only on a formula basis. After you have already been paid on a no-fault basis for most of your economic losses, you can sue the wrongdoer and recover for pain and suffering, but you will be paid for your pain and suffering at the rate of 50% of your medical bills up to $500 in medical bills, and dollar for dollar on the medical bills in excess of $500. If you have got $500 in medical bi11s, the ceiling on what you can recovery for pain and suffering is $250. If you have got $1,000 in medical bills, then the ceiling in the traditional case is going to be $720. Now, they know that they have really eliminated the right to recover for pain and suffering for almost all of those cases. No lawyer, once the economic portion of the case is taken out, could possibly afford to try a case with $500 in medical bills, prove fault and so forth, casual relationship before a jury, knowing in advance that the most he can recover is $250. And certainly the insurance company is never, without any kind of a lever being exerted upon them, going to voluntarily pay those. So the truth of the matter is, they have eliminated the right to recover for pain and suffering in all of those cases. The only exception in Illinois is that if you can prove that the limitation on the right to recover on the formula that I have given you would shock the conscience of reasonable men, then you are entitled to something more than that.

Why should it have to shock the conscience? What is wrong with just proving that it is inadequate? No one is really going to be paid. That, too, I think you have to know that variation, according to whether you live in a rural area in Georgia or in the metropolitan area of Atlanta, makes a tremendous difference. Some people will recover a lot more for pain and suffering in Atlanta than if you lived in some remote rural section of the state. Undoubtedly there is a great discrepancy so far as the amount of medical bills, the cost of hospitalization, I am sure varies greatly in this state as it does in most all states. That, by the way, is the reason that the trial judge who declared the Illinois no-fault law unconstitutional shows to the side that it was unconstitutional, that it discriminates against the poor and the black, because of that discrepancy so far as medical bills are concerned.

It is interesting to note that in Illinois, the National Association for the Advancement of Colored People has fitted an amicus curiae brief with the court condemning no-fault insurance.

Last week when I was in the state of Texas, an organization known as LULAC, which is the largest organization of Mexican-Americans in this country came out in condemnation of no-fault insurance, because it discriminates against minority groups.

This, I think, is a message that you, as attorneys, are obligated to convey to the public, despite the fact that you are going to be accused of having a great personal bias, and that you are really not interested in the rights of the public. You are going to be accused of that whether you say nothing or whether you attempt to convince the public that this is not in their interest. So I strongly urge you to convey that message to them.

I would like to point out to you some interesting statistics, so far as the experience in Massachusetts is concerned, and I assume that you have read some of this in your newspapers. But, it may be somewhat different than what I am going to tell you. You know that in Massachusetts our no-fault law has been in effect for slightly over one year. The bill passed in a rather unusual way. We had the highest insurance rates in the nation; the question was how much longer could we continue to operate without doing something of a drastic nature. Finally, the governor decided that what he ought to do for a campaign gimmick for re-election, is adopt no-fault insurance as a vehicle, and he did.

He initially introduced the no-fault plan that I have described to you, and in order to make it politically popular, he wrote into the plan a 15% reduction in premiums on personal injury insurance. Now, 15%, even in Massachusetts, on just that one segment of what most people pay for automobile insurance is not terribly significant. If you live in the city of Pittsfield, which is a small city on the western border of Massachusetts, that works out to $3.60 per year, less than on_ penny a day. Now, he knew that he wasn't going to get that kind of legislation through, so he then decided that if they would adopt his no-fault plan, he would write in a 15;0 reduction on all kinds of insurance,' property damage, collision, comprehensive, as well as personal injury. That is rather popular. 15% across the board, if you live in Boston, may work out to $140 or $150 a year. The bill passed the legislature, even though the legislature would tell you to a man that they didn't like this particular plan, even the proponents of no-fault didn't like this particular plan, but they couldn't justify to their constituents and they were running for re-election two months later, why they had voted against something which had built into it a 15% reduction across the board. So the bill passed.

The governor ran for re-election, he carried full-page ads in every newspaper in the state that said if you live in Boston, I saved you $145, if you live in the city of Lawrence, I saved you $98, and so on down the line. He was re-elected. In the meantime, the insurance industry challenged the constitutionality of the rate reductions on everything except bodily insurance, and four days after the governor was overwhelmingly re-elected, the supreme judicial court knocked it out as unconstitutional on everything except bodily insurance.

And a week after that, the insurance commissioner granted an increase in property-damage rates of 38.4%. Instead of 15;0 less, 38.4;0 more, but the governor by then was re-elected. The public, in Massachusetts, in 1971, paid more for insurance for their local package of insurance than they paid in 1970, and in 1972, when we now have gone to no-fault property damage as well, we are paying more, most people are paying more than they did in 1971. It is a peculiar thing, the rate keeps going down but what we pay keeps going up.

The governor keeps traveling around the country, as BARRON'S magazine said, as a great advocate c£ no-fault insurance. By the way, his name happens to be Sargent, although he is no relation of mine, as I am sure he would be quick to point out to you if he were here today, telling the press what a wonderful thing it is.

Let me tell you why he says no-fault insurance is such a wonderful thing. No-fault insurance, in principle, should pay more people than the present system. It stands to reason that if under the present system only the innocents are entitled to recovery, then a system which pays both the innocent and the guilty ought to include more people in the pool. We speculated about how many more people would be paid under no-fault insurance in Massachusetts. Keeton said 150% as many people as presently were paid. Other proponents said 200% would be paid, but in the first one-year we didn't pay 200% as many or 150% as many, we paid 40% less people than we paid under the fault system. 40% less people received anything than received something under the tort liability system. And the people who were paid were paid on an average 60% less than the average claimant received in 1970.

Now, remember, you had a 15% reduction on one small kind of insurance, bodi1yinjury insurance. 15% reduction in premiums, and if you figure out a 40% reduction in paid claims and a 50% reduction in the average cost of the paid claims, put those together, you realize that the insurance industry took in 15% less dollars and gave back 80% less dollars. The difference has resulted in the most amazing underwriting profit in the history of the insurance industry.

So the governor finally talked about a second rate reduction for bodily-injury coverage for 1971. Oh, excuse me, effective in 1972, based on the experience, and there was -- there has been an additional rate reduction. Initially everybody thought it was a 27.6% reduction. That turned out not to be quite true, because the same day that rate reduction was announced the insurance commissioner reclassified 3/4 of all the cities and towns in the state upward, so you are in a higher rate classification now.

The public really is paying more on an average than they ever paid before, and yet the overwhelming majority of them are receiving, in the event they are injured and they are innocent, a very small portion of the benefits that they would have been entitled to receive under the tort-liability system.

Market Facts Survey did a study not too long ago concerning whether or not the public wants to be able to continue the right to recover for pain and suffering. They went to the public and asked them if you could save a little bit of money would you give up this right, and a bare majority said no. It was a pretty close question. They then went to the public and explained to them, as you well know, a little bit about what pain and suffering is, that if someone causes me to lose my leg, that leg doesn't hurt too long, after a while I am going to be fitted with an artificial prosthesis and I will probably go back to teaching school, as I now do. But, I can never again take a walk on a beach, go dancing with my wife, and play with my chi1dren in a normal fashion do the things that make life worth living for most of us. Is that a desired part of the recovery for an injury, explaining in a little different example. The same people were asked the question, now would you favor giving up the right to recover for pain and suffering if you could save some money by doing so, and the response now was overwhelmingly no. The public wanted to be able to continue the right to recover for interruption or destruction of the loss of the enjoyment of life. And that is what pain and suffering really is au about.

Another survey done in Massachusetts, which hasn't received as much attention as I think it warrants, is a study done by Public Opinions Research Corporation of Princeton, New Jersey, which is certainly the most prestigious public-opinion taker in this country. They went in December of 1971 to the people who had been injured last year in Massachusetts, and who had submitted claims, to find out what the public attitude was on it. They found that the overwhelming majority of people fe1t that they had been treated unfairly by no-fault insurance. Another interesting result from that pub1icopinion survey was in connection with the promptness with which payments are made. No-fault insurance, the proponents will tell you, means that you get your money quickly when you need it. You don't have to wait until some distant time in the future when you no longer have economic pressures. Under the tort-liability system, 85% of all cases are settled in less than six months. In Massachusetts, under no-fault insurance, the people, according to the survey, who had received injuries more than six months ago, some six months and some up to eleven months ago, 33% hadn't received a penny. That's a far poorer showing than under the tort-liability system. That is why the public is disheartened.

A Senator Kelly from the Worcester area of Massachusetts recently did his own public-opinion pool, in which he asked his constituents to write in, and the overwhelming response again is that they were completely dissatisfied with no-fault insurance. We have an unusual system, so far as property-damage insurance in Massachusetts is concerned, that just went into effect. We have now granted a complete exemption from liability to all motorists for motor vehicle and property damage. You can hit anybody's car that you like, as often as you like, other than intentionally and you have no liability for the damage that you caused that car. Some very, very interesting statistics have started to appear in that connection. They don't tell you, well, since you can't recover against the fellow who hit you it certainly behooves you to get some kind of protection for yourself, you ought to go out and probably buy some kind of collision policy. Well, you buy a collision policy and you will pay more for that collision policy than you would have paid under the present system for both collision and property damage. And then they say if you don't want to pay that high rate, you can buy a kind of quasi-collision policy, according to the terms of which your own company will pay you for damage ID your car in those instances where you could have recovered against the other fellow, if the other fellow didn't now have an exemption. They are going to use the fault system to determine, but you are recovering against your own company.

And the third option is, you can buy a property-damage liability insurance policy that covers you for property damage only of a non-vehicular nature. You hit a telephone pole, go through somebody's plate glass window, you still have got liability for that kind of property damage. You have got to buy one of those three, either full, collision, the quasi-collision, or the property-damage liability of a non-
vehicular nature.

Can you imagine explaining to the public what those various options are? The insurance agents don't understand them. It is a rather complex thing. So people often buy the cheapest kind of insurance they can, and they only realize after their car is in the driveway and someone has completely demolished it that they can, recover against anybody, they have no right to recover for it because they didn't have the full collision coverage, or maybe the person didn't even identify himself. That is another qualification for recovering under the quasi-collision coverage.

People are not being paid, and yet you are paying more money, more money for the same kind of insurance, generally, except the benefits are greatly reduced.

Finally, by the way, I would like to give you one other item I think of great significance in no-fault insurance. By the way, let me point out to you, in connection with this elimination of general damages, which is the heart of all of it, that under Senator Hart's plan, Senator Magnusson's plan in Washington, initially they allowed you to recover for pain and suffering in the so-called catastrophic injury cases, after you have been paid your economic losses, you could sue "on a tort basis for catastrophic injury. That meant, by definition, that in order to establish catastrophic injury; you had to prove that there was more than 70% permanent partial disability. It turns out that a man who's lost one leg is not 70% permanently and partially disabled, so he doesn't recover anything for pain and suffering. If you have lost both legs, you can recover for pain and suffering. So, Senator Hart finally tired of trying to justify that kind of discrimination, and he has now given equal justice to everybody, but on a non-discriminatory basis, by eliminating the right to recover for pain and suffering in every case.

One of the problems of no-fault insurance is the way in which you rate the policyholder. Today, if I am a high school dropout, and I drive a two-seater souped-up sports car, and I am habitually unemployed, I am not a very good risk, statistics tell us that I am likely to cause accidents. By the same token, if you are married for fourteen or fifteen years, and you have two or three children, and you drive a station wagon, you've held down the same job for a period of time and you live in the suburbs, you are likely to be a pretty responsible kind of citizen, and you are “a good risk”. Your insurance rates are the cheapest, at the cheapest possible price.

Under no-fault insurance that is exactly reversed. You become the bad risk and I become the good risk, because even though I may strike your station wagon in the rear end, it is your insurance carrier that has the big exposure to loss. You are the fellow who makes the high wages, you are the fellow who probably travels in a golf circle of people who make more or less the same kind of income that you do, you have got the big car, you have got the big family with the chances that there will be more people in the car when there is an incident, and your company has the exposure. My company doesn't have much exposure. Number one, there can only be two people in the car, one of whom is habitually unemployed. What are they going to reimburse me for? I get my insurance at a very cheap price. What you are really talking about is comparison between insuring on a collision basis a Cadillac or a Volkswagen. If you are not insuring much, you're not going to pay much.

I think that when the public understands that, they will not be as enamored of no-fault insurance as some people have led you to believe they indeed are. I am not suggesting that no-fault insurance in itself is bad. No-fault insurance has worked well in Saskatchewan Province in Canada. No-fault insurance of a type certainly works well in West Germany and in the Scandinavian countries, but all of those do a very simple thing. Everybody recovers nominal benefits, and they really are nominal. In Saskatchewan, you are talking about $35 per week towards wage reimbursement, but once you have recovered for your medical, plus whatever portion of the wages they pay you, the innocent person is free to sue the wrongdoer and recover the difference between what he already got and 100% recovery. No one is denied the right to recover for general damages. That is what, in effect, you have in the state of Oregon, that, in effect, is what you have in the state of Delaware. Everybody gets something.

If you think there is a big, pressing social need to do that, but you don't do it at the expense of taking away benefits from innocent victims.

Now, the truth of the matter is that doing that is going to cause the small case, the truly token, the nuisance case, to drop out of the system anyway, if the economic loss has been paid. In a really small case, most claimant_, and certainly most lawyers, are not going to find it worthwhile to pursue that case for whatever additional damages might be recoverable. But, you have done that without setting up arbitrary formulas and thresholds that eliminate some very legitimate claims. So if no-fault insurance is desirable, then there certainly is a kind of no-fault insurance that will work, that will. save money, and will not be injurious of the rights of innocent people. And I urge all of you to express these things to the public as often and under as strong an urging as you possibly can.

The insurance industry is going to be an extremely, extremely strong adversary. When you pick up the January 17th issue of TIME magazine and you find three full-page advertisements by different insurance companies advocating no-fault insurance, when you pick up an Atlanta newspaper, and I am sure you have often, and find full-page advertisements advocating no-fault Insurance, and realize that this is going on in every newspaper fn the country, you have to think that we are talking about the insurance industry spending somewhere in the vicinity of $20,000,000 in a campaign to convince the public that no-fault insurance is the best for them. And I ask the public to at least question, when they are questioning economic motives when was the last time that you remember that the insurance industry have something to gain by all of this?

Did they see in Massachusetts an opportunity to make a tremendous amount of money? To charge substantially the same premiums as they presently charge and yet give back a very small portion of the benefits that they had previously been giving back?

The American Insurance Association, as you know, is in favor of pure no-fault insurance, eliminate general damages completely. The National Association of Independent Insurers and the American Mutual Insurance Alliance, they don't want to do that for a very simple reason. The AIA, the old stock companies, have lost a great deal of the market in the last few years. They have lost it to the direct writers of the independent, and to the mutuals. What they would like to do is get rid of a liability line of merchandise which they no longer compete favorably for, and move over into the accident and health field in total. That is an area where they do compete favorably.

For the same reason, the American Mutual Insurance Alliance and the Independents don't want to go to the pure accident and health, because they don't compete favorably there. They would like to keep the framework of the tort liability system, the framework of a liability policy with a rider for some accident and health coverage, but will the exposure of liability, at least, in certain instances, for the large case, and you have to realize that the life-insurance industry has a considerable stake here, boom the life-insurance industry normally, Prudential to the contrary, is not involved in the writing of casualty coverage. But, the life-insurance industry can and does write accident and health coverage. So, if you switch from casualty to accident and health, that’s $9,000,000,000 that is up for grabs for the life-insurance companies, which is so much larger than the independents and the mutuals, that it wouldn't be much of a contest. That is why they take the position they do.

I think that this is extremely favorable to the insurance industry. I think that no-fault insurance is extremely unfavorable to lawyers. There's no question about it, it's economically disastrous to most lawyers. But, if that's all that is wrong with it, then you can't possibly justify a change that is going to eliminate the tort liability system. But, I honestly and sincerely believe that whether these plans are good for the insurance industry and bad for lawyers that they are not in the interest of the consuming public.

And I hope that when you have concluded your study of them, that you will become as I am, a critic and an opponent of the no-fault insurance that is presently being proposed. Thank you very much.

LETTER TO THE EDITOR

Gentlemen:

In response to AMA President-elect Dr. C. A. Hoffman's suggestion that there be a "no fault" insurance system applicable to medical malpractice claims, why not also, "no fault" banks, bank robbers, politicians, food stores, lawyers, and airlines? This simply 'illustrates that there is no logical reason for "no fault" anything, and that as soon as "no fault" insurance is passed, another special interest group will seek a similar plan for themselves.

The insurance industry is simply interested in reducing its financial responsibilities under auto insurance, by selling health and accident insurance at a grossly inflated price. While we might expect the premiums to go down, we must expect the amount of claim payments to decrease substantially. The passage of "no fault" insurance and other types of "no fault" systems will lead us steadily in the direction that we have been headed for years, namely, the taking away of the aspirations of the individual to achieve greatness: to drive his car in a safe manner, to practice medicine well. Under the “no fault" plans, the drunk driver -would recover the same amount of money as a cautious driver, and the inept doctor will continue his negligent practice.

We should take a very careful look at "no fault" insurance and ask ourselves, why the insurance companies are spending millions of dollars to force h upon us. How often do insurance companies spend this kind of money simply to help the general public?

There are many ways to solve the problems of automobile injury claims, but "no fault" is not the answer.

Very truly yours,

Stuart Meyers

RIGHTS OF MOTORISTS AND PEDESTRIANS AT THE CROSSING

By: William L. Thorp, Jr. Rocky Mount, North Carolina

Note: Mr. William R. Thorp, Jr. is a practicing trial attorney and a senior partner in the Rocky Mount, N. C. law firm of Thorp and Etheridge. He has had extensive experience in the field of train-related personal injuries and has kindly consented to offering to our readers his thoughts on the rights of motorists and pedestrians in these cases, and some techniques one might find useful in pursuing this type of litigation.

Motorists and pedestrians are entitled to certain rights at railroad crossings including but not limited to the following:

(1) Notice of the presence of the crossing.

(2) Notice of the approach of a train.

(3) An adequate view of the train as it approaches.

(4) A smooth grade crossing in good condition without ruts.

(5) Reasonable speed on the part of the train. '

(6) Good brakes on the train.

(7) An engineer and fireman operating the train, who is in good physical health, mentally alert with good eyesight.

(8) A higher degree of care in each of the above areas where the crossing is unusually hazardous.

Generally speaking, the railroads have developed procedures which are claimed to provide the motorist with the above rights. Usually these procedures a_ mechanically followed by railroads and their employees. Of interest here is the difference between a mechanical compliance with such procedures and conduct that would bring about the actual realization of these rights on the part of the motorists.

(1) NOTICE OF THE PRESENCE OF TRACKS

This notice is normally given in advance by highway signs or markings on the highway and by signs at the crossing itself. The important question is whether or not the sign and markings used are adequate under the existing circumstances. Generally speaking, it is not unusual for the signs to be faded or just to be minimal signs which are not really sufficient to give the motorist adequate warning. This is particularly true out in rural sections on tracks which carry only a few trains a day.

(2) WARNING OF APPROACH OF TRAIN

The standard method of warning motorists of the approach of' trains is as follows:

Whistle. The engineer is required to give a crossing warning when he reaches the whistle post which is usually 1500 feet from the crossing. There was never an engineer who failed to give this whistle warning at the proper time. However, if you will stand at railroad crossings and watch a few trains go by, you will find that not infrequently the train whistle does not blow until the engine is more than halfway between the whistle post and the crossing and sometimes not at all. However, the engineer will testify that he began blowing the whistle giving Signal No. 14 when the train was at the whistle post.

Bell. The same thing is true of the bell on the train. In this connection some engineers are notorious liars about when they blew the whistle and rang the bell. Their attitude is pretty well expressed by an engineer who testified on deposition that a few months before the accident occurred, he had falsely told the yard master that he had fallen from a tree and hurt his back and requested the yard master to send someone down to help him do some particular job. When we brought out to him that he had never fallen from any tree or hurt his back and that his report to the yard master was untrue, he laughed and said: "Ah, that's just railroad talk, Cap. A railroad man will say anything to get somebody to help him." Well, you get a lot of railroad talk when you try to find out where the engineer blew his horn and rang his bell. If you will canvass the neighborhood, you will find disinterested witnesses who were in a position to hear the whistle and bell if they had sounded it and who know that they were not blown or rung.

Adequacy of warning by whistle or bell. - With regard to audible warning signals, the motorist has the right to receive a warning which he can hear under normal circumstances. The railroad often takes the view that the motorist did not hear the whistle or bell because he had his heater or air conditioner and radio running. This should be no defense. The railroad can reasonably foresee that motorists today are going to have one or two of those pieces of equipment operating most of the time. The motorist is entitled to a warning which can be heard over and above standard equipment on automobiles. Furthermore, these warnings are totally ineffective unless they warn the motorist of the approach of a train in time for the motorist to avoid entering the zone of danger when the train is approaching. The adequacy of the warning weighted in this light depends on the width of the crossing determined by the number of tracks, the distance between the tracks, the grade of the crossing, the view of the motorist, the distance down the track at which the train can be seen, the speed of the train and the conditions of the grade crossing. The warning given will not necessarily be adequate just because it follows mechanical rules prescribed by the railroad for all crossings. If the crossing is unusually hazardous, the railroad must exercise a higher degree of care to warn the motorist.

Flashing signal lights. In our jurisdiction, a railroad is not required to install flashing signal lights in the absence of statute unless the crossing is unusually hazardous. However, the test should constantly be that the railroad should give whatever warning is necessary to enable the motorist to avoid an accident. Flashing signals are a special problem. The railroad contends that they are infallible. To test this theory, an electrical engineer is employed to learn what facts could cause a signal light to fail. The signal light is operated by regular electricity with a battery backup. The lights do not work as long as the current is running from the signal box down the rails to the signal light. When the train passes over the rails at the point near the signal box, it short circuits the current which is running to the signal lights and sends it back to the box. When this current is cut off from the signal lights, an arm within the mechanism of the signal lights falls and makes contact which causes the signal lights to begin flashing. There are a number of mechanical parts within the signal, each of which as to function properly for the signal to work. Any moving part of a mechanical mechanism can malfunction. The mere fact that the signal lights are rigged to go on when the current cuts off does not mean they are fail-safe. Other possible reasons the lights could fail would be the failure of the train wheel to completely short out the current. The electrical engineer can quickly dispel the railroads' argument as to the infallibility of the signal light.

Railroads are extremely reluctant to install flashing signal lights because they cost from $25 to $40,000 per crossing. It is not unusual for a city or town to request the railroad to install flashing lights at a given crossing. If this is done, you should be able to find a record in the town board minutes showing this request and the discussions between the town board and the representatives of the railroad regarding the crossing. While this evidence of itself does not establish that the crossing is dangerous, it does constitute evidence of notice to the railroad of the conditions existing at the crossing. As you know, the minutes of most town boards are in a mess and are not indexed. The simplest way to find them is to pay the town clerk or a retired town clerk to go back through the minutes to see what is contained in them.

Flagman. Flagmen are used to warn motorists of approaching trains on seldom used tracks. This is an even more expensive method. Here you are dealing with the same type of railroad employee who does the minimum to comply with the rules. Like all railroad employees, he is going to testify to whatever is necessary to protect him from being disciplined by the railroad.

(3) THE RIGHT TO BE ABLE TO SEE AN APPROACHING TRAIN IN TIME TO AVOID BEING STRUCK BY IT

There would be few crossing accidents if the train were visible to the motorist at a time when the motorist was approaching the grade crossing. However, few grade crossings provide such an unobscured view for the motorist. Until this motorist is right up to the tracks, his view is generally obscured by (a) weeds and trees; (b) embankments; (c) buildings; (d) train cars on side tracks; (e) freight unloaded at the side track and railroad equipment; (f) commercial vehicles doing business with the railroad; (g) dips and bottoms with ground fog.

You will have to prove that these obstructions are on the railroad right of way with the permission or knowledge and acquiescence of the railroad. You can establish the area of the railroad right of way through interrogatories, or an engineer's drawing or blueprint, of the crossing area which the railroad usually has and can be ordered to produce. Or you could establish this by testimony as to exact location of the obstructions in conjunction with testimony as to the width of the right of way in that area. This can often be done in your depositions of the railroad employees.

Weeds and trees. Practically every grade crossing in rural sections or open country will usually be obscured by weeds and trees growing along the railroad right of way. About the only time the railroad seems to cut these weeds and trees is immediately after an accident occurs. It is important to get pictures of these obstructions before the railroad cuts them if possible. If the railroad cuts the weeds after the accident and then denies that they were on their right of way, you should offer evidence that they cut them to prove that the weeds were on the right of way. Furthermore, you can usually get witnesses who live in the vicinity of the crossing to testify to the height of the weeds and trees.

Buildings-Depots. loading stations and warehouses. The railroad owns a wide strip of right of way running along the tracks. They use these rights of way for buildings used in connection with the railroad such as depots, loading stations and warehouses. In doing so, the railroad itself usually builds and maintains obstructions to the motorist's view. Sometimes they will lease buildings located on the right of way to third parties who ship substantial goods with the railroad. The railroad will then contend that it is not responsible for permitting the obstruction to remain on its right of way. Furthermore, if you will procure a copy of the lease, you will probably find that the railroad has the right to cancel the lease at any time upon short notice. This may be more interesting to the jury than the fact that the railroad should not have permitted the obstruction to be there in the first place.

Train cars. Where the railroad has spur tracks running off of the main tracks, they are notorious far parking railroad cars there; gondolas, pulpwood cars, freight cars, etc. Leaving them-on the spur track very effectively blocks the view of the motorist as he approaches the grade crossing. The best way to show that these cars were parked there, of course, is by your eyewitnesses and your client. However, you will also want to check the railroad's records, Form #408, kept by the stationmaster which shows the location of all cars in the vicinity. These forms are required to be kept by the railroad in order to determine charges to be paid by them for cars belonging m foreign railroads if they are kept standing over a certain period of time. If your witnesses tell you that train cars were parked on the spur tracks and the railroad denies it, you should look for the presence of a switch engine in the area immediately after the accident which could have removed the cars from the spur track shortly after the accident. The position of switch engines as well as all trains are shown on' the railroad's train sheet which you can get through discovery. Before you permit the railroad to give you a photostatic copy, insist on the right to inspect the original. Often we have been furnished a photostatic copy of the train sheet which appeared to be proper. However, when we inspected the original we found that erasures and changes had defUdte1y been made in the area showing the time immediately after the accident, changes which do not show on the copy. You should consider deposing the engineer and other crewmen on the switch engine to find out when they picked up the cars.

Freight. The railroad often unloads freight at the spur track beside the crossing. This freight can be anything from gravel, land plaster, boxes, etc., which is often unloaded right where it will prevent a motorist from seeing an approaching train.

Vehicles doing business with the railroad. Cars, transport trucks, farm trucks and other vehicles often come to the railroad and park on the right of way, either to do business with the railroad or m connection with the railroad's operations. The railroad undoubtedly has full knowledge of the use of the right of way by these vehicles and acquiesces in it. The railroad should prevent their parking on the right of way where it blocks the motorist's view.

One of the first people notified of a railroad accident is the railroad investigator or claims man. He will get to the scene of the accident within a few minutes after the accident occurs. He usually has a camera with him. If the conditions at the crossing are favorable to the railroad, he will usually wait until the congested area has cleared and take pictures which give the appearance of a safe crossing with a clear view for motorists. You should pin down exactly when he took his pictures and show that conditions at that time were not the same as they were when the accident occurred. The jury will also be interested in why he did not take pictures when he first arrived.

Dips and bottoms with ground fog. The roadbeds for railroad track often run through low swampy land. The trains often come out of the swamp and up a grade to the crossing. They are often low places, bottoms in the tracks a few hundred feet from the crossing. In early morning and under certain weather conditions a ground fog will lie over these low places which conceal the train as it approaches the crossing.

A motorist has the right to concentrate in the direction of greatest danger without being held contributorily negligent. At most crossings the view to one side is more obstructed than the other. Often the view is so poor that the motorist must continue to look in that direction as he moves across the tracks. To the extent that reasonable prudence requires him to keep looking in that direction to protect himself, he is not negligent for not looking in the other direction. He cannot look in two directions at the same time.

You will prove the obstruction to motorist's view by your plaintiff, if living, and other occupants of the car and by the eyewitnesses. It is also a good plan to have some prominent citizen who has had concern about the dangerous nature of the crossing such as the mayor, members of the town board or chief of police to be a principal witness to layout the crossing and testify as to the obstructions. This can also be done by a traffic engineer who can testify as to sight lines, and the time required for a motorist to go from a stopped position before entering onto the tracks to a place of safety across the tracks. Photographs and diagrams can be used to illustrate the testimony of these witnesses. Another point, which should be brought out, is that a motorist seldom has any better view than the engineer and the fireman. They sit up higher, 14' - 16' above rails. You can generally learn through the statements given by the fireman and engineer to the railroad investigator how far the train was from the crossing and how far the plaintiff's vehicle was from the crossing, when the engineer and fireman first saw the plaintiff's vehicle. If the view of the motorist is obstructed, the view of the engineer and fireman will also be obstructed and their failure to see the plaintiff's vehicle until they are practically at the crossing will re-enforce your position that the plaintiff could not have seen the train in time to avoid the accident. However, they may have a much better view than the plaintiff because of train height.

(4) SMOOTH CROSSING IN GOOD CONDITION

Motorists are entitled to have the grade crossing kept in good condition without ruts, potholes or loose spikes, which can make it difficult for a car to drive over the crossing. These holes and ruts are likely to be a factor when the motorist sees the train coming, stops on the crossing, and tries to back up. The combination of a nervous driver and boles and ruts will often result in the car choking off and stalling in the path of an oncoming train.

(5) REASONABLE SPEED ON PART OF THE TRAIN

Motorists and pedestrians have the right to expect the train to approach the crossing at a reasonable speed. The jury is always interested in the speed limit for trains at a given crossing. As a practical matter, there seldom exists a speed limit. The railroads have been careful through the years to keep a railroad employee on the town boards and city councils of the communities through which the tracks
run. This is to prevent these municipalities from passing an ordinance establishing a maximum speed for trains going through that community as they have a right to do. Usually the railroad has the right to appeal such an ordinance to the utilities commission or some other administrative agency at the state level but they do not like to have to do so. It is important to have the minutes of the city council and town boards searched back to the beginning of the community to see if you can pickup an ordinance establishing a maximum speed limit. There may be one on the books which is not known to any living member of the city government or to the present management of the railroad, but which is still valid.

Usually the railroad will take the position that the speed limit is whatever speed they decide they want to use in order to be on schedule. They will tell you that the railroad timetable establishes the' speed limit. This would permit them to set their own speed limits. In this day and time of longer and longer trains with 200 and 300 cars and 3 or 4 diesel engines, the speed of trains has increased more and more. The motorist has the right to have the railroad set its timetable so that these long heavy trains do not have to exceed reasonable speeds in order to be on schedule. Often the negligence of the railroad occurred long before the train approached the crossing immediately before the accident. It occurred when they set a timetable requiring a train to travel at a high rate of speed through a crossing that is unusually dangerous because of the obstructed ,view of motorists, the width of the crossing, the poor condition of the crossing and the limitations on stopping or slowing the train after danger of a collision becomes apparent.

(6) GOOD BRAKES ON THE TRAIN

You should not assume that the brakes on the train are always in good working order. The railroad is in business to move freight on schedule and they cannot always wait to have maintenance work done on these trains: including the braking system. If you believe that the train did not stop within the expected distance after brakes were applied you should interview or depose the men responsible for maintenance and inspection of the brakes. You can require the railroad to produce records of the brake maintenance shop and a schematic drawing of the braking system. You will need an expert on tram brakes, either a technical engineer or a retired train engineer or both.

(7) THE MOTORISTS ENTITLED TO HAVE THE TRAIN OPERATED BY AN ENGINEER AND FIREMAN WHO ARE IN GOOD PHYSICAL CONDITION, INCLUDING GOOD EYESIGHT AND WHO ARE MENTALLY ALERT

At the present time, the railroad has a group of potential geriatric patients operating these high-speed trains. The railroad keeps them operating because they do not want them to draw retirement benefits. They require annual physical check-ups but these are often perfunctory examinations by horse and buggy doctors who have about the same attitude towards their examination as railroad employees have towards their work. There was once a case where the engineer was operating the train at an admitted speed of 77 mph and probable speed of 90 mph when he had 4+ diabetes which had caused
his eyesight to go from 20 - 40 to 20 200 within less than 50 days. The information regarding the railroad engineer's health is contained in his personnel file which can be procured through discovery.

(8) A HIGHER DEGREE OF CARE ON THE PART OF RAILROAD WHERE THE GRADE CROSSING IS UNUSUALLY HAZARDOUS

Each of the rights described above create a reciprocal duty on the part of the railroad. The degree of care required of the railroad in order to discharge that duty is increased whenever the crossing is unusually hazardous. Whether a crossing is unusually hazardous or not is a matter for the jury to determine on all the evidence.

CONCLUSION

The rights of the motorists described above are real. Their purpose is to protect the motorist from being struck by a train. The duties of the railroad are real. These duties must be discharged in a way which will, in fact, enable the motorist to realize their rights as they approach and cross the grade crossing.

EXAMINER OF QUESTIONED DOCUMENTS: THE HANDWRITING EXPERT

By: Gus R. Lesnevich

Note: Mr. Gus R. Lesnevich is a highly qualified examiner of disputed and forged documents who has recently established his practice at Suite 1310, Rhodes Haverty Bldg., 134 Peachtree St., N. W., Atlanta, Georgia 30303. He is currently the only licensed expert of his nature practicing in the state of Georgia. In this article, Mr. Lesnevich explains his function and technique appropriate to the trial lawyer.

Examiners of questioned documents are not crystal ball gazers. They are not graphologists or people with electric machines who "analyze" your signature at county fairs for a quarter.

An examiner of questioned documents is one who makes critical examinations, comparison, and analysis of documents, establishing genuineness or exposing forgery . . . . Examiners check documents for alterations, additions, or deletions. They identify individuals through documents and partial documents by showing the authorship of handwriting or source of typewriting.

One of the major portions of an examiner's work is identification. He is asked to identify such exhibits as handwriting, handprinting, typewriting, ink, paper, and writing instruments. He must establish dates, sources, histories, and relationships of documents. The Examiner uses such tools as microscopes, and other optical aids, photographs, and a wide variety of adaptable photographic equipment. This equipment includes' a wide variety of lighting methods such as radiations in infrared and ultraviolet.

Questions concerning documents are answered from two perspectives. The chief resource of the Examiners through research of previous related experiences. The Examiner also utilizes other fields as physics, chemistry, mathematics, language studies, etc. The Examiner skillfully applies both resources to the document in question.

The field of questioned documents embraces manufacturing processes and materials that go into production of documents. The Examiner is familiar with methods, machines, instruments, and human agencies by which parts of documents are formed and brought together.

The Examiner is not only analyzing the documents themselves, but he is also searching for misinformation contained in such documents. He uses such information to discover or to identify persons, or to show significant relationships.

The result of the Examiner's work usually takes two forms. The first form is the written report which is used by administrative and executive officers, commissions, lawyers, and individuals. The second form is direct courtroom testimony in which the Examiner uses visual aids to show some of the methods of reaching conclusions and for verification under cross-examination. The Examiner is qualified as an expert and trained for courtroom appearances.

Upon occasion, 'document examiners are referred to as "handwriting experts." This is not necessarily true. The Examiner does possess expertise in handwriting identification. His work does not include the employment of calligraphic or engrossing skills, nor does it involve a study of personality.

Questions concerning documents arise in many different areas. They include business, finance, civil and criminal trials, or in any matter affected by the integrity of written communications and records.

Examiners of questioned documents did not gain their training and knowledge in this specialized field on the college or university campus, although many of them hold degrees in related fields. They have, however, spent a considerable amount of time training under the supervision of other examiners in apprenticeship programs. This training may take place in a Federal, State, or Military Crime Laboratory; or in apprenticeship with a private examiner. Regardless of where he is trained, the Examiner spends anywhere from two to five years in comprehensive study.

The importance of questioned document Examiners in both criminal and civil cases if firmly established. They often support the necessary link that connects an individual to his crime. In many forms, they play the leading part in criminal investigations. Likewise, they supply the controversial element in many civil cases.

The questioned document' usually consists of some written matter upon paper and sometimes other material. Occasionally, a writing may be questioned without its property being classed as a questioned "document." For example, the notations made by Bruno Richard Hauptman (Lindberg Kidnapping case) on the walls of his garage. In other cases the material upon which the writing, printing or typewriting appears may be the principal element. In this instance, the document itself, through a genuine watermark may indicate that the paper could not have been manufactured at the time its writing purports it to have been in existence. The questioned document may be a letter, telegram, note, check, will, paper fragment, or other such material.

The important role of questioned documents can be readily seen in crimes of forgery. In these cases; it is the "Corpus Delicti," and without the document, there can be no prosecution. Thus, the document is the body of the forgery charge. It records the kidnapper's demands, the libel, the extortion, the fraud, the threat to persons and property.

Other questioned documents could be: an automobile registration, a lease, a forged prescription for narcotics, suicide note, a stolen credit card, a laundry or dry cleaning mark, a bill of sale, a contract, an insurance policy, etc. Almost any document to which a person affixes his signature could be considered a questioned document at sometime. This makes the document Examiner a friend to the innocent and a foe to criminals.

An attorney at law should not treat every document that passes across his desk as being true and genuine. He should be on the lookout at all times for elements 'of forgery or documents that need close scrutiny. He should question each document and satisfy himself that the signature is in fact a genuine signature and not a forgery, simulation, stamp impression or a tracing; that a letter, word, or numeral hasn't been added or in fact a paragraph inserted or an extra page included.

The possibility of a page having been removed or trimmed and figures erased should also not be overlooked when dealing with documents, especially when great sums of money often exchange hands based upon the face of a document that has never been checked. There are times when a document should be examined for face value if only because of the sum of money it represents when it is assumed to be genuine.

If, however, an attorney does come a cross a questioned document or if he represents a client who has been victim of a forgery or swindle, he has a case that will probably need the services of a qualified Examiner of questioned documents. Once an attorney has gotten in touch with an Examiner and discussed the details of the case, the attorney will assume the role of an investigator and as such will play a major part m determining whether the case will end in success or failure.

This new role for the attorney is most critical as his effort and knowledge of questioned documents could lend to as much as 50% of the Examiner's effectiveness in reaching a positive decision one way or another. In order to explain what an investigator attorney) should do to prepare his case for submitting to an Examiner, the following rules should be used as a guide:

I. The questioned document should be irrnnediate1y placed in a protective folder, it should not be marked, soiled or damaged in any way nor should it be folded, stamped or clipped in any manner that would alter its appearance or change its composition. Once the questioned document is secure and protected the attorney is able to prepare the case.

When dealing with writings, the Examiner must have some standard or exemplar to use as a foundation upon which he can base his comparative examination.

Standards are those signatures or writings of a person executed under normal conditions and not connected with the case at hand. They usually take the form of cancelled checks, legal documents, letters, receipts, etc., executed during normal course of business. These documents can be considered as representing the true writing habits and characteristics of a person.

One of the difficulties of using standards of a person's writing is that quite often the individual letter and letter combinations that are questioned are not depicted in the standards, and that the time period involved may not be overlapping, leaving changes or alterations of writing habits and characteristics due to this difference (of perhaps years) undetected.

"A's" cannot be compared with "G's"-"John Jones" cannot be compared with "Samuel Hansen"--the J's must be compared with J's and the OHN's with OHN's.

If this is the case, then, the attorney must either obtain additional standards or attempt to have the person write the questioned text and submit exemplars for comparative examination.

II. Problems with exemplars:

1. The person may attempt to disguise this writing.

2. He may print where he should use script.

3. He may attempt to use his awkward hand.

4. Or he may just refuse to render any writings at all.

If exemplar material is obtained, also forward along with it those few known standards that you may have been able to obtain so that the Examiner can see if the exemplars compare with the standards and determine if possible if the exemplar material is in fact genuine writing of a person depicting his true habits and individual characteristics.

Rules for obtaining exemplars:

1. Never let the person see the questioned document.

2. Approximate the questioned writing conditions as much as possible.

a. If a check is questioned, have the person fill out a blank check.

b. If ballpoint pen was used have the person write utilizing ballpoint pen.

3. Dictate to him the words and let him write them as he normally would.

Get several specimens for each questioned document removing, each specimen from his sight before he begins writing the next. This will prevent the person from maintaining a disguise of his writing habits and characteristics.

If a check is in question, 8 to 10 specimens should be sufficient.

If a signature is in question, 20 to 30 specimens should be sufficient, providing the specimens were taken one at a time, each one removed from sight before the next was asked for and that the person was restricted to the same size signature block as that of the one in question.

The next step of the attorney after obtaining comparable exemplars or standards is to collect standards of the victim. This is needed for several reasons. The questioned text may in fact be genuine or just an attempt on the part of the author to change or disguise his writing. The questioned writing may be a close simulation or tracing and as such contain elements necessary for the examiner to consider in reaching his conclusions.

Once everything has been collected and marked by the attorney in such a way as to be able to identify the writing at a later date, he is almost ready to submit the case for examination.

The only item lacking is for the attorney to include in his request and information that may have had an effect on the questioned writing. For example, he should include in his report to the Examiner the age of the alleged writer, health conditions, any physical or mental impairments, type of employment (bricklayer or artist), educational background, as well as any other fact which may have an effect on the handwriting. Also the same type of information should be submitted on the per son suspected of having executed the writings.

If the attorney is only attempting to determine if a signature is in fact genuine, or forged, i.e., insurance policy, will, deed, mortgage, receipt, etc., he should follow all the preceding advice as it applied to his case.

The Examiner would like at all times to say yes, this is a forgery or this is genuine or that this writer authored that signature on the document in question. Any examiner that will guarantee you a positive answer on each case he examines, has to be a charlatan. This is not to say that examiners don't make positive statements for I have found that during the past five years the examiners and laboratories I have been associated with have been able on 90% of the cases to give a positive statement that this is a forgery or this is genuine. On the remaining 1Oio of the cases, some of the major reasons for not being able 'to render a conclusion were due to working with a copy, different in time from when the document was originally written and the date of collected standards and finally insufficient materials to work with.

When laboratory results are received, the Questioned Document, Examiner is not finished with the case because he has to be ready and prepared to appear in a court of law to state and defend his conclusions through demonstrative testimony, utilizing photographic enlargements, and explaining to the jury the numerous individual characteristics and habits of the writer, etc., that forced him to conclude as he did.

As soon as an attorney learns that he is going to utilize the Examiner as an expert witness, he should notify the Examiner as it takes several days or weeks to prepare court exhibits and also to make sure that he isn't already committed to appear in another court with conflicting dates.

Just prior to the actual appearance of the Examiner in court, preferably the preceding day, a pre-trial interview should be held and all questions and answers should be reviewed. Since most attorneys seldom, if ever, have had an Examiner of questioned documents appear for them, the Examiner will at this time be able to furnish advice and questions to the attorney so that a more effective and truthful presentation of the facts may be brought out in the courtroom.

The Examiner of questioned documents can be an effective and useful weapon for the attorney confronted with a question of the genuineness of signatures or documents. The licensed expert examiner uses science, not witchcraft or guesswork to provide the attorney and the court with the best available opinion as to genuineness and authenticity.

J. D. Lee of the Tennessee Bar, currently serving as the National First Vice President, announced for President of the American Trial Lawyers Assn. Lee has previously served as National Second Vice President, a national chairman of the Bar Trial Advocacy Committee and on numerous ATL committees and projects.

In making the announcement, Lee set forth an l2-point program that he would like to see accomplished during the fiscal year of 1972-73. These are as follows:

1. Continuation of the "no-fault insurance" legislation fight. Re-evaluation of states with no-fault legislation.
2. Work for preservation of the tort system with appropriate reforms such as comparative
negligence and majority verdicts.
3. Build state organizations Task Force work through
4. Promotion of ATL Environmental Law Essays Contest.
5. Work toward meaningful penal reform.
6. Promote legislation voluntarily offering first-party coverage for economic loss.
7. Improve the image of the trial lawyer.
8. Promote increase in ATL membership, both sustaining and regular members.
9. Continue to support current ATL projects and programs.
10. Show the trial lawyer as "the voice of the consumer."
11. Promote legislation to eliminate the guest statute in states having a guest statute.
12. Build a stronger ATL and make ATL more organized and responsive to the needs of the public and its members.

"Continuation of the no-fault legislation fight must continue to be the number one priority. However, to make ATL more effective in this fight, we must increase our activities in other public interest fields such as the Consumerism Protection Bill, prison reform activity, environmental law and commercial litigation. Our effectiveness can be increased by stepping up our public interest activities, thus making our secondary priorities the foundation for our number one priority … preservation of the tort system and right to trial by jury,” stated Lee and urged the readers of this bulletin to write him for criticisms and suggestions that anyone may have.

CAN I GET TO A JURY WITH MY NEGLIGENCE CASE?

By: Eugene R. Kiser

Note: Mr. Kiser is an experienced trial lawyer who is a member of the Texas Bar and the Georgia Bar as well as GTLA and American Trial Lawyers Association in which he has been a former state committeeman. He has been an assistant District Attorney and member of the National Association of District Attorneys. Mr. Kiser is currently practicing as a trial lawyer and is a member of the firm of Garland and Garland.

The answer to the question, "Can I get to a jury with my negligence case?” often means the difference between life and death or between futility, starvation, bankruptcy and financial security for both the clients and attorney. Therefore, our ability to correctly analyze the law and the facts is by necessity most important. With this in mind, let us review the present state of the law in Georgia.

I. Where there is any conf1.jct on material issues, no matter how slight after construing all inferences and deductions most favorably towards the party opposing the motion for Summary Judgment or directed verdict, then the trial judge must allow the case to go to the jury.

Ga. Code Ann. 81A-]50 (a) provides: "If there is no conflict in the evidence as to any material issue, and the evidence introduced with all reasonable deductions there from shall demand a particular verdict, such verdict shall be directed." The language of this code section is quite similar to the corresponding section of the Federal Rules after which the C.P.A. was patterned.

In McCarty v. National Life and Accident Insurance Co., 107 Ga. App. 178, it was held that:

"The trial court's function in ruling on a motion for Summary Judgment is analogous to the function he performs when ruling on a motion for directed verdict. 6 Moores Federal Practice 2l0l§56.l5; 2Q20§56.02. The essence of both motions is that there is no genuine issue of material fact to be resolved by the trier of the facts, and that the movant is entitled to judgment on the law applicable to the established facts. 6 Moores Federal Practice 2032§56.04 (2)."

The burden of demonstrating this lack of a substantial issue is upon the moving party in a motion for directed verdict or a motion for Summary Judgment. (Holland v. Sanfax Corp., 106 Ga. App. 1.).

The party opposing the motion must be given the benefit of. all reasonable doubts on motion for directed verdict (Sellars v. Wolverine Soap Co., 19 Ga. App. 295) or motion for Summary Judgment (Holland v. Santax Corp., supra). The 'evidence must be construed most favorably to the party opposing the motion for directed verdict or motion for summary judgment (Turry v. Durden, 103 Ga. App. 371). The party opposing the motion must be given the benefit of all favorable inferences on a motion for directed verdict. Northwestern University v. Crisp, supr_ Marshall v. Woodbury Banking Co., 8 Ga. App.22l. This is true with respect to circumstantial evidence as well as direct evidence. Whitacker v. Paden, 78 Ga. App. 145.

The case of Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90, held that in negligence cases it must be plainly and palpably shown that the defendant in no way contributed to the proximate cause of the damages incurred in order for the trial court to sustain a motion for summary judgment in their favor. The Chastain holding, supra, would apply to motions for directed verdict since the trial court's function in ruling on a motion for summary judgment is analogous to the function that he performs in ruling on a motion for directed verdict_ McCarty, supra, 107 Ga. App. 178.

Palagano v. Georgia Terrace Hotel Co., 123 Ga. App. 502, was a case where the plaintiff filed suit for injuries sustained from the collapse of a bed in defendant's hotel, and there was some evidence from which a jury might find that the bed was defective, although such evidence was very slight, and that such defect could or should have been discovered by a reasonable inspection. The honorable court held that a jury question was presented and that the trial judge erred in directing a verdict for the defendant, and further held that:

"It is error to direct a verdict, except where there is no conflict in the evidence introduced as to material facts, and the evidence introduced together with all reasonable deductions or inferences there from demands a particular verdict … A verdict should not be directed unless there is no issue of fact, or unless the proved facts, viewed from every possible legal point of view, can sustain no other findings than that directed." Norris v. Coffee, 206 Ga. 759, and McDuffee v. Lumous
Cotton Gin Co., 13 Ga. App. 591.

"No matter how strongly the evidence may preponderatem favor a the movant, he is not entitled to a directed verdict if, when construing all inferences and deductions most favorably towards the other party, a conflict remains." Royal Blue Transportation Co. v. First & City National Bank, 44 Ga. App. 754.

In retrospect, if there are any conflicts of evidence on any material issues, then such conflicts call for the application of the law stated in the Chastain case, supra, and Royal Blue Transportation Co. case, supra, 44 Ga. App.754: and this is particularly true in negligence cases. See Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90: Palagano v. Atlanta Gas Light Co., 122 Ga. App. 90: Palagano v. Georgia Terrace Hotel Co., 123 Ga. App. 502.

A discussion of the sufficiency of direct evidence which is necessary to create a fact issue, has already been stated in the discussion of the 1aw under proposition one in this article. However, the most confusion seems to arise when a trial judge is faced with a negligence case based on both direct and a substantial amount of circumstantial evidence as to material fact issues or when the trial judge has a purely circumstantial case before him.

II. Common law negligence, contributory negligence, and an assumption of the risk issues must always be submitted to the jury where the conduct in question was not in violation of any rules of a Georgia lawmaking body if there is any slight evidence of negligence or any circumstantial evidence beyond a scintilla on any issue of negligence.

In a very famous and iconoclastic opinion our Supreme Court, in the case of Garrett v. Royal Brothers Co., 225 Ga.

533; 170 S.E. 2d 294, laid to eternal rest the plain, palpable and undisputable rule in common law negligence cases when it held that:

"The conduct of a defendant cannot be declared to be negligent as a matter law, unless it has been so declared by a lawmaking body, and in the absence of such a declaration the jury is the arbiter of the question of whether a defendant's conduct on a given occasion is negligent and, if so, whether such negligence is a degree of negligence is a degree of negligence required for a recovery by a plaintiff."

The real meaning and impact of the Garrett case, supra, was decisively analyzed in Judge Hall's specially concurring remand opinion in Royal Frozen Foods Co., Inc. v. Garrett, 120 Ga. App. 686, wherein the opinion held essentially that, "the plain, palpable and undisputable rule is gone," and stated:

"It is important to remember that this new doctrine cuts both ways, and, if applied, will prevent a court from holding as a matter of law that a plaintiff is negligent, failed to exercise ordinary care for his own safety or assumed the risk."

In reviewing the decisions of the Court of Appeals on summary judgment and directed verdict cases that were decided after the Garrett case, supra, it is not clear as to whether or not the ghost of "plain, palpable and undisputable" has arisen to haunt Hamlet.

In Wakefield v. A. R. Winter Co., 121 Ga. App. 259: 172 S.E. 178, this honorable court held that:

"Issues of negligence, including related issues of assumption of the risk, lack of ordinary care, etc., comparative negligence, are ordinarily not susceptible of summary adjudication whether for or against plaintiff or defendant, but must be resolved by trial in the ordinary manner."

In that case Garrett was cited in the footnotes.

In Maddox, Bishop, Hayton Frame and Trim Contractors, Inc. v. Lamdon, 123 Ga. App. 71; 179 S.E. 2d 310, this honorable court in affirming the trial court's denial of defendant's motion for directed verdict held that:

"Issues of negligence, including the related issues of assumption of the risk and lack of ordinary care for one's own safety, are peculiarly matters for resolution by a jury, and a court should not take the plate of a jury in solving them except in plain and undisputable cases."

Citing among others Garrett v. Royal Bros. Co., supra.

In Battey v. Savannah Transit Authority, et al., 123 Ga. App. 685, in which the majority opinion affirmed a directed verdict for the defendant, Judge Randall Evans in writing a brilliant dissent in this tort action held that:

"No rule is better established in Georgia than that negligence is a question for the jury, which includes a lack of negligence, diligence, lack of diligence, extraordinary diligence, and slight care." See Cobb v. Coleman, 94 Ga. App. 86: Martin v.. Henson, 95 Ga. App. 715: Wright v. Georgia Railway and Bkg. Co., 34 Ga. 330: Garrett v. Royal Bros. Co., 225 Ga. 533.

Various other cases such as Harper v. Plunkett, 122 Ga. App. 63, and Chastain v. Atlanta Gas Light Co., 122 Ga. App.90, have reiterated the plain, palpable and undisputable rule. See also in this respect Palagano v. Georgia Terrace Hotel Co., 123 Ga. App. 502.

In Macon, Bibb County Hospital v. Appleian, 123 Ga. App. 445, and Reed v. Batson Cook Co., 122 Ga. App. 803, this honorable court held that issues of negligence, including related issues of the assumption of the risk, lack of ordinary care for one's own safety, lack of ordinary care in avoiding the consequences of another's negligence, and comparative negligence, are ordinarily not susceptible of adjudication of motion for summary judgment, and, of course, the same is true in motions for directed verdict.

In Taylor v. Bolton, 121 Ga. App. 141: 173 S.E. 2d 96, an experienced farm 1aborer,we11 acquainted generally with the dangers involved in working around farm machinery, had his leg injured while the machinery was being used for unloading corn, and he sued his employer for failure to provide a safe working place and to warn him of the dangers. The Court of Appeals held that the trial court's denial of the defendant's motion for summary judgment was correct because a question of fact existed as to whether or not the employer should have issued a warning or taken other safety measures. However, in the Taylor case the court also reiterated the plain, palpable and indisputable rule without discussing the Garrett decision, supra.

On September 23, 1971, the Court of Appeals handed down an opinion involving the cases of Friedman, et ale v. Sloan b/n/f, et a1., Cases No. 46309 and 46310. This opinion has not yet been published in the official Court of Appeals reports. Judge Pannell, in writing the opinion for the majority, stated that:

"The conduct of a defendant cannot be declared to be negligent, as a matter of law, unless it has been so declared by a lawmaking body…"

and cited the Garrett decision, supra, then made this ruling:

"It follows, therefore, that on motion for summary judgment by a plaintiff as to liability only in an action seeking recovery against another for acts of negligence not so declared by a lawmaking body, it is error for the trial court to grant such a motion and the judgments granting such motions in the cases before the court must be reversed."

The honorable Court of Appeals in Friedman v. Sloan, supra, recognized the real meaning and holding in the Garrett decision supra, and Judge Jordan in writing a concurring opinion agreed with the dissent in the Garrett case which still recognized the existence of the plain, palpable and undisputable rule. However, the honorable Judge Jordan recognized that he was bound by the majority decision in Garrett, which effectively puts to rest the plain, palpable and undisputable rule in common law negligence cases.

In support of the majority doctrine in the Garrett decision, one could say along with Judge Hall in Royal Frozen Foods Co. v. Garrett, 120 Ga. App. 6ffi, that the plain, palpable and undisputable rule creates confusion in our decisions and created unpredictability and uncertainty. The rule and pronouncement of the Garrett decision will create predictability and stability because all common law negligence cases, including related common law issues of contributory negligence, comparative 'negligence, and assumption of the risk, will always be jury questions, as these issues should be because the_ by their nature, are better suited to be decided by twelve people rather than the trial court. The Supreme Court in all probability recognized the true fact that a case wherein the plain, palpable and undisputable rule could be applied to sustain a ruling on a motion for summary judgment or directe9 verdict would be an extreme rarity.

In this respect, I am sure the Supreme Court recognized the principle enunciated in the case of Gauch v. Meleski, (C .A. Florida 1965) 346 F. 2d 433, which held that:

"Because of the peculiarly elusive nature of the term 'negligence' and because of the necessity that the trier of the facts pass upon the reasonableness of the conduct and all the circumstances in determining whether it constitutes negligence, it is the rare personal injury case which can be disposed of by summary judgment even where the historical facts are concedely undisputed."

Therefore, the Garrett doctrine, because of its predictability and stability effect on the law is of much greater value to society, and particularly so because the cases which could come within the ambit of the plain, palpable and undisputable rule are so rare. One can recognize the reason for the Supreme Court's value chose in the Garrett case and why it put to rest the plain, palpable and undisputable rule in common law negligence situations with the result that the good of the Garrett doctrine far outweighs any supposed untoward effects.

The Garrett case., supra, applies both to motions for summary judgments and motions for directed verdict because the functions of the trial court are analogous and one and the same in summary judgments and directed verdicts.

Therefore, let us examine the proper standards to be applied by the trial court to determine whether or not a circumstantial evidence case should be submitted to the jury.

In the case of Louis v. American Road Insurance Co., 119 Ga. App. 507: 167 S.E. 2d 729, the Court said:

"The standard for testing the sufficiency of circumstantial evidence is explained in McCarty v. National Life and Accident Insurance Co., 107 Ga. App. 178: 129 S.E. 2d 408, which was later proved by the Supreme Court in Old Colony Insurance Co. v. Dressel, 109 Ga. App. 465: 138 S.E. 2d 886: 220 Ga. 354."

The Old Colony case, supra, held that when a reasonable mind might accept the circumstantial evidence presented as adequate to support a finding in favor of one of the parties on an issue of fact, a verdict based on such finding is authorized even though the evidence might reasonably support a finding in favor of the other party on this issue of fact. In the Louis, McCarty, and Old Colony cases, supra, it was held that it is not necessary that the proved circumstances show consistency with the hypotheses claimed and inconsistency with all other reasonable theories to the point on logical demonstration, if the evidence reasonably establishes the party's theory it is a question of fact as to whether it preponderated to that theory or some other.

All of these cases have held that there must be more than a scintilla of circumstances to carry the case to the jury, and that it is for the court to say whether the circumstances reasonably establish the hypothesis relied upon by the plaintiff or defendant.

In McCarty, supra, Judge Hall in writing the opinion stated that:

"It appears that confusion has arisen concerning the sufficiency of circumstantial evidence because of the failure of the courts to distinguish between the question (1) whether the evidence reasonably establishes the given theory and the question (2) whether the evidence preponderates to one or another of the theories which it reasonably establishes."

The first question is one for the court to decide. This is essentially an "any evidence" question and is based on the scintilla rule. Judge Hall defines the scintilla rule:

"More than a scintilla of circumstances means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197. If it is permissible reasonably to draw adverse inference from the circumstances proved, such inferences are not mere speculation or conjecture.

As Mr. Justice Cordoza; prior to his service on the Supreme Court of the United States, explained in People v. Vanaken, 217 N.Y. 532:

"An inference is legitimate deduction whereas conjecture is mere unregulated suspicion."

If the evidence reasonably establishes the plaintiff's theory, it must be submitted to the jury for deciding the second question as to whether the evidence preponderates to that theory or to some other and in deciding that the evidence preponderates to one permissible conclusion, the jury excludes all other less reasonable hypotheses.

In Hackworth v. Chesapeake and Ohio Railway Co., 73 Fed. Supp. 348, the Court held that some degree of speculation may be permitted in any case of circumstantial evidence, and the doctrine of._ ipsa is a modified form of speculation.

In Y.M.C.A. of Aaanta v. Bailey, supra, wherein a boy’s dead body was found in the swimming pool and the plaintiff was unable to show the exact manner in which the deceased drowned, the Court did not hold that the plaintiff had failed to carry the burden of proof as to the exact manner of death, and went on to hold that it cannot be said as a matter of law that the defendant wasn't negligent for failing to provide a sufficient number of life guards or trained personnel.

Consequently, a circumstantial evidence case is not submissible to the jury unless it reasonably establishes the plaintiff’s theory and is beyond a mere scintilla of evidence or in other words give the jury sufficient circumstantial evidence to allow them scope for legitimate reasoning without having to resort to wild speculation.

SUMMARY

We must conclude that the appellate courts will never sustain a trial court's granting of a motion for summary judgment or directed verdict in common law negligence cases if there is the slightest amount of direct evidence creating a conflict or fact issue on negligence issues after construing all inferences and, deductions most favorably toward the plaintiff. If the plaintiff's case is based on purely circumstantial evidence, the same rule applies but the trial judge must determine first whether the evidence reasonably establishes the plaintiff's theory or essentially is there any evidence to submit to the jury beyond a scintilla. Therefore, as a practical matter in common law negligence cases, the trial court must always submit the case to the jury if there is the slightest amount of direct or circumstantial evidence creating a fact issue on negligence. We can certainly recognize that under these rules it would be almost impossible and rather rare to find a common law neg1:%;ence summary judgment or direct verdict sustained on appeal. Where the motion for summary judgment or directed verdict is based on negligence per se, then the only difference in the 'rules applicable is that the plain, palpable, and undisputed rule definitely comes back into play and the Garrett decision supra does not prevent its application.

If the Court of Appeals is going to follow the Supreme Court's decision in Garrett, as it has sometimes and should all of the time, then according to that decision, all common law negligence cases must be submitted for the jury's determination unless there is absolutely no evidence whatsoever that would create a fact issue on negligence. If Garrett were followed literally, then in all common law negligence cases, even if there wasn't sufficient evidence to create a fact issue the case should be jury submitted, but this would conflict with Ga. Code Ann. 8lA150 of the Civil Practice Act.

Therefore, the decisions of the Court of Appeals sustaining summary judgment and direct verdicts in common law negligence cases are decided on the basis that there was absolutely no legally competent evidence of negligence to submit to the jury. In conclusion, a practical realistic trial lawyer must recognize that trial judges would be safer and probably have a record of fewer reversals if they would never direct a verdict or grant a summary judgment in negligence cases because almost every such ruling will be reversed in appeal.