THE VERDICT
A Publication of GAPTA, Inc. (Georgia Association of Plaintiffs' Trial Attorneys)
Vol. 3, No.9 November - December 1961

PRESIDENT'S COLUMN

At the Board of Directors Meet­ing in Athens, Thursday, October the 26th, it was voted to have our next Tort Seminar in Savannah on Friday and Saturday, February the 23rd and 24th. The details will be announced later and I urge all of you to make every effort to be present. We intend to utilize the talents of our Georgia Lawyers as much as possible and if you would like to appear as a lecturer or a speaker at the Seminar, please get in touch with David Fritts, General Chairman, First Federal Savings and Loan Building, Savannah Georgia.

The Treasurer informs me that even though we are getting a lot of new members some of the old members have not sent in their checks for their dues. As it takes a great deal of money to operate a large organiza­tion such as ours, will you please send your checks at once.

Our Association has now grown to the point that it is recognized as the leading Trial Lawyers Association in Georgia. Your officers and Board of Directors appreciate all the kind letters that you members write to us. We are very much interested in what type of program you would like to have at the February Torts Seminar. If you have any suggestions write David Fritts in Savannah at once.

The next Board of Directors Meet­ing will be held in Atlanta, De­cember the 8th at 1:00 at the Piedmont Hotel. Please check the Bulletin Board in my Room to determine the location. We are looking forward to seeing as many of you as possible at this Direc­tors Meeting.

Yours for Greater G.A.P.T.A.,

WILLIAM F. BRAZIEL, President

STAFF OF THE VERDICT

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

Associate Editor....Ross Arnold

RECENT GEORGIA CASES OF INTEREST

ATTORNEYS' FEES - ACTION ON HOS­PITALIZATION POLICY - AWARD OF $565. FOR HOSPITAL BENEFITS AND $8,000. ATTORNEYS' FEES AFFIRMED. RESERVE LIFE INSURANCE CO. v. AYERS, 217 GA. 206 (1961). This case was originally won by the plaintiff and carried to the Court of Appeals where it was reversed. 101 Ga. App. 887. The retrial of the case resulted in a Plaintiff's verdict. The Court of Appeals affirmed 103 Ga. App. 576, but the Georgia Supreme Court granted cer­tiorari. However, the Supreme Court affirmed. - The outcome of this case is the result of the fine work of one of our GAPTA members.

NOTE: The case of Ed Smith & Sons, Inc. v. Mathis, 103 Ga. App. 661, summarized in the July, 1961, issue of The Verdict has been reversed by the Georgia Supreme Court, 217 Ga. 354.

CASES OF INTEREST FROM RECENT NACCA NEWS LETTERS

Georgia: AGAINST NEW CAR DEALERS - DUTY TO W ARN - WHEN DEALER UNDERTOOK TO SHOW PLAINTIFF HOW TO START CAR WITH SCREWDRIVER, HE INCURRED OBLIGATION TO WARN OF ATTENDANT SHOCK DANGERS. Capital Automobile Co. v. Schindall, 120 S.E.2d 351 (Ga.App. 1961) (plaintiff, a doctor, purchased from defendant a Cadillac whose electri­cal system continually failed; in an effort to keep car going, agent of defendant showed Dr. how to start car with screwdriver; agent warned of burn dangers from hot manifold but not of high voltage shock hazard; Dr., who had no mechanical experi­ence, was severely shocked when he attempted to start car; held, judg­ment for Dr. aff'd; duty to warn arises out of gratuitously giving instructions which induce reliance upon their completeness.)

WRONGFUL DEATH - FRIGHT & SHOCK AS CAUSE - RESCUE DOCTRINE - HEART ATTACK. Usry v. Small, 118 S.E.2d 719 (Ga. App" 1961) (defendant, intoxi­cated, lost control of his car & crashed into a ditch; plaintiff's husband was lying down in his parked car when it was struck by an object, either from defendant's car or fence with which it colli­ded, only a few inches from his head, causing fright & excitement; husband then went to rescue defen­dant & by strenuous efforts extri­cated him & 5 minutes later, dropped dead of a hear attack while talking to a sheriff; plaintiff brought two separate counts - held, 1. on death due to fright & shock, defendant liable since recovery may be had for injury resulting from fright alone, the "injury" here being death; 2. on death due to heart attack, defendant liable for causing decedent to exert efforts of rescue; 45 mins. intervening merely a fact issue & not ruled out as proximate cause as matter of law) (fascinating aspect of case is that heart Attack is not a part of the 1 st count, & fright is not part of 2d see also Penick v. Mirro, 189 F. Supp. 947 (E. D. Vao 1960), 4 NACCA News Letter No.6 (July 1961) p. 3, & Colla v. Mandella, 72 N.W. 2d 755 (Wis: 1955), 18 NACCA L.J. 315; 85 N.W. 2d 345 (Wis. 1957), 21 NACCA L.J. 53-59 (recovery for death from heart attack resulting from fright caused by defendant's negligence); 24 NACCA L.J. 93-104; 26-27 NACCA L.J. 184-190; on " Rescue Doctrine" see 26-27 NACCA L.J. 156-179).

AGAINST HOSPITALS - CHARITABLE IM­MUNITY - MOLESTATION OF 9-YR.-OLD GIRL PATIENT BY HOSPITAL ORDERLY - HOSPITAL'S NEGLIGENT SE­LECTION OR RETENTION OF UNFIT EM­PLOYEE. Hipp v. Hospital Authority of City of Marietta, 121 S.E. 2d 273 (Ga. App. 1961) (where hospital employed a Negro orderly who had been convicted as a "peeping tom" & who had a visible scar on his head from being shot for his voyeur­istic escapades & it was alleged that defendant had made no investigation as to orderly's moral character & background & he molested 9-yr.-old girl, a paying patient at hospital, held, reversing dismissal. of plain­tiff's petition: (1) hospital autho­rity created by act of General Assem­bly is subject to suit as is any pri­vate corporation; (2) even a chari­table institution is liable for torts of its agents & employees where it has been negligent in selecting or retaining them; (3) jury question was raised as to whether defendant should have inquired to determine. whether employee was competent person to be employed as orderly with "general run" of hospital) (see 19 NACCA L.J. 281-286, noting Kendall v. Gore Properties, 236 F. 2d 673 (D.C. Cir. 1956), recognizing liability of land­lord who failed to investigate charac­ter of employee-painter & gave him un­supervised access to apartment of young, unmarried woman tenant who was strangled by employee).

TRESPASS - BY DYNAMITE EXPLOSIONS - MENTAL SUFFERING AS CONSEQUENCE OF TRESPASS - EXEMPLARY DAMAGES. Barrow v. Georgia Lightweight Aggregate Co., 120 S.E. 2d 636 (Ga. App. 1961) (over a period of years & after notice from plaintiff, defendant continued to carry on its blasting operations on land close to plaintiff's; not only was plaintiff's house damaged but plaintiff was caused mental & physical discomfort & anxiety, as he alleged; held: (1) dynamite vibrations are a trespass; (2) trespasser is liable for mental and Physical discomfort, even tho' he could to have anticipated causing them at time of trespass; (3) defendant liable for exemplary damages even tho' he did not cause the harm intentionally since his con­tinuing to blast after notice evinced an entire want of care & conscious indifference to conse­quences) Cf.. Bushers v. Graceland Cemetery Ass'n, 171 F. Supp. 205 (E. D. I11. 1958), 25 NACCA L.J. at 125; Dixon v. N.Y. Trap Rock Corp., 293 N.Y. 509, 58 N.E. 2d 517,60 N.E. 2d 385 (194)).

Oregon: NEW TRIAL - JURROR MISCONDUCT ­AUTO ACCIDENTS - DURING TRIAL, JUROR DROVE HIS CAR OVER STRECH OF HIGHWAY WHERE ACCIDENT HAD OCCURRED & REPORTED TO REST OF JURORS DURING THEIR DELIVERATIONS THAT HIS OBSERVATIONS CONTRADICTED PLAINTIFF'S WITNESSES - HELD, REVERSING & REMANDING JUDGMENT FOR DEFENDANT, SINCE REVIEWING CT DID NOT (BECASUE OF CONFLICT IN SCHED­ ULE OF RESPECTIVE COUNSEL) HAVE BENEFIT OF TRIAL CT'S DISCRETION RE WHETHER OR NOT JURY HAD BEEN INFLUENCED BY JUROR'S MISCONDUCT, REVIEWING CT COULD NOT SAY THAT MISCONDUCT HAD NOT INFLUENCED VER­DICT, NOTWITHSTANDING AFFIDAVITS FROM 10 JURORS TO GENERAL EFFECT THAT THEY HAD NOT BEEN INFLUENCED BY ANY STATEMENT MADE BY OFFENDING JUROR - JUDGMENT FOR DEFENDANT REV'D - TESTIMONY OF POLICE OFFICER (CALLED BY DEFENSE) RE LOCATION OF POINT OF IMPACT IN ST HELD INADMISSABLE (SE 66 A.L.R. 2d 1043). Thomas v. Dad's Root Beer & Canada Dry Bottling Co., 356 P. 2d 418 () re. 1960).

Arizona: AGAINST CITIES - TRIP ON MANHOLE COVER - ORDINANCE REQUIRING WRITTEN NOTICE OF DEFECT INVALIDATED. City of Phoenix v. Williams, 361 P. 2d 651 (Ariz. 1961)(plaintiff tripped over an imperfectly seated manhole cover in defendant's street; 5 hrs. earlier defendant had been notified of its condition, defendant had an ordinance exempt­ing it from liability unless it had received written notice; held, judgment for plaintiff affld; ordinance was void as an excess of authority since Legislature did not intend to so immunize cities from lia­bility; actual oral notice here was Sufficient whether defect was latent or patent.)

Ohio: EVIDENCE - "TRUTH SERUM" - INJURED PLAINTIFF ALLOWED TO RELY ON STATEMENTS MADE WHILE TREATED WITH SODIUM AMYTAL. Freeman v. N.Y. Central R.R. 174 N.E. 2d 550 (Ohi1 App. 1960) (plaintiff was found very seriously injured on defendant's tracks; be­cause of amnesia (probably traumatic retrograde type) he could not recall how he came to be there; at trial he testified, on the basis of statements made to his psychiatrist while under influence of sodium amytal, that he had been drunk when he wandered into defendant's property; while plaintiff lost on appeal on the basis of con­tributory negligence, the practice of medically refreshing the memory was sanctioned.)

New York: CONSTRUCTION SITE ACCIDENT - ACTION BY EMPLOYEE OF SUBCONTRACTOR AGAINST GENERAL CONTRACTOR & OWNER - VIO­LATION OF BOARD OF STANDARDS RULE ­$250,OOO AWARD. Conte v. Large Scale Development Corp., 176 N.E. 2d 53,10 N.Y. 2d 20 (N.Y_ 1961) (plain­tiff's caterpillar-type tractor ma­chine fell off an unguarded dirt ramp & turned over upon him; Board of Standards rule, autho­rized by statute, required defen­dants to build guardrails for ramps; held, App. Div. rev'd, administrative rule did apply as some evidence of negligence; but defendants granted new trial since ct erred in charging that violation of administrative rule is negligence as a matter of law) (in Kleinert v. Hebb & Knapp" Inc., 10 N.Y. 2d 719 176 N.E. 2d b35, a subcontractor's employee similarly maintained a successful action against a general contractor & owner of realty based upon failure to cover over an ele­vator shaft as required by state statute, & against a second subcon­tractor whose employee dropped mortar down the shaft upon plain­tiff; $65,000 verdict.)

INDEMNITY - EMPLOYER-PURCHASER'S RECOVERY IN WARRANTY AGAINST SELLER FOR WORKMEN'S COMP. PAID TO EMPLOY­EE - ACTION BY EMPLOYER WHO HAS PAID COMPENSATION TO INJURED EM­PLOYEE AGAINST SUPPLIER OF DEFECTIVE PART WHICH INJURED EMPLOYEE­ BREACH OF WARRANTY - DAMAGES MAY BE MEASURED BY AMOUNT EMPLOYER PAID IN COMPENSATION - 1ST-IMPRESSION CASE. General Aniline & Film Corp. v. A. Schrader & Son, Inc., 215 N.Y.S. 2d 861 (App. Div. 1961)(ct holds that employer-purchaser can maintain warranty action against seller for compensation paid in­jured employee; workmen's compen­sation subrogation provision no bar)(see Frumer & Friedman, Pro­ducts L iability.

West Virginia: FAIR TRIAL - IMPLICATION BY DE­F'ENSE COUNSEL IN CLOSING ARGUMENT THAT DEFENDANTS UNINSURED NEW TRIAL PROPERLY GRANTED. Graham v. Wriston_ 120 S.E. 2d 713 (W. Va. 1961) (in final argu­ment defendant told jury "you are in the position of having a blank check with (defendant's) name signed to it & you can fill it in for any amount you want to & he will have to pay it" held order granting plaintiff new trial aff'd; defendant's intention could only have been to imply defendant was not protected, whereas in fact he was; this is more grievous than a reference by a plaintiff to the ex­istence of insurance; the ideal of an impartial jury trial should not be endangered or jeopardized.)

The NACCA Bar Association has planned several one day seminars in the Southeast. Each seminar will be on the subject, "THE PROPER HANDLING OF A TORT CASE, FROM BEGINNING TO END". The schedule is as follows:

There will be registration fee of approximately $7.50 to cover the actual costs of mailing the invitations, etc. Our nationally known speakers' are all attending at their own expenses. Each seminar will begin at 8:30 in the morning and will continue until 6:00 at night. If you wish a hotel room, write directly to the hotel.