Law Commons^™

Domestic Relations, Barry B. Mcgough, Lucy S. Mcgough

Mercer Law Review

Domestic relations cases continue to bombard the appellate courts. Approximately 100 such decisions were reviewed for the survey, but only a handful was truly significant. Perhaps the most important of these are the cases attempting to construe Georgia's new "no-fault" ground for divorce.' The subject matter of this report has been sub-divided for ease of use into six substantive areas: marriage, divorce, custody, alimony, adoption (including change of name), and legislation.

Juvenile Law, Lucy S. Mcgough, Barry B. Mcgough

Mercer Law Review

There is probably no more difficult, albeit interesting, job in the state than the position occupied by the juvenile court judge. Each year brings an increasing number of state appellate decisions involving delinquents, status offenders, and deprived children. In addition, the United States Supreme Court has now rendered six decisions further clarifying the constitutional rights of juveniles in the juvenile justice system. As in the previous Survey, the first section of this article will deal with developments in the pre-adjudicatory stage, from "arrest" through the filing of a formal petition. The second section will deal with developments in the adjudicatory …

Evidence, William H. Agnor

Mercer Law Review

More cases than usual concerning one or more points of evidence were decided during this survey period. Only those cases that seemed significant or of general interest have been discussed here.

Appellate Practice And Procedure, Tommy Day Wilcox

Mercer Law Review

There were a number of significant cases decided by the appellate courts of Georgia during the past survey year in the area of appellate practice and procedure. The Georgia Supreme Court and the Georgia Court of Appeals handed down more than sixty opinions that turned in part on a consideration of the Appellate Practice Act of 1965, the rules of the appellate benches, and the case law which has evolved under these standards. The most noteworthy of these cases will be highlighted here under four general headings: Enumeration of Errors; Payment of Costs and Transcripts; Final Judgments; and Miscellany.

Unlike …

Business Associations, Joseph Epps Claxton

Mercer Law Review

This survey article deals with recent Georgia cases and statutes in the areas of partnerships, corporations, securities regulation, and utilities.

Commercial Law, John M. Hewson Iii

Mercer Law Review

Last year's Survey reported that the field of commercial law was expanding rapidly and that the courts were receptive to innovative solutions to protect consumers from the rigors of the traditional commercial-law concepts. This year has been mixed. Some courts have pushed "consumerism" to new lengths, while other have retraced their steps from the extremes of the past few years and returned to more traditional commercial law concepts. This article discusses some of the more important developments in the peripheral area of Truth-in-Lending as well as report the cases and statutes for the 1975-76 year within the traditional realm of …

Contracts, Mitchel P. House Jr.

Mercer Law Review

During the survey period, the appellate courts of Georgia reviewed approximately 80 cases involving problems of contract law. As is usually the case, the great majority of the cases merely applied well-settled principles. Many turned on procedural points. While none have truly landmark significance, a few are worthy of discussion in that they present interesting problems in the application of established principles to new situations.

Constitutional Law, David E. Hudson

Mercer Law Review

As in years past, the bulk of the Georgia appellate court decisions in the area of constitutional law concerned the criminal law aspects of the Fourth, Fifth, and Sixth Amendments and the due process clause of the Fourteenth Amendment of the U.S. Constitution. A significant although lesser number of constitutional decisions involved civil matters and will also be discussed in this survey.

Criminal Law, Charles H. Weston, Walker P. Johnson Jr.

Mercer Law Review

The several hundred criminal cases decided by the Georgia Supreme Court and the Georgia Court of Appeals have been gleaned in an effort to present what we believe are the most interesting and informative. As we went through these cases, one thing became evident: Some relief must be given to the courts in their monumental task of hearing an increasing number of appeals and writs.

In categorizing the cases, we have used broad characterization in some instances but have headlined a very narrow point in others. In any event, the heading should point a reader in the right direction.

Insurance, Maximilian A. Pock

Mercer Law Review

Of the 45 "insurance" cases handed down during the current survey period less than half merit serious scrutiny and comment at this time. Of the remainder, some address themselves solely to procedural issues with "insurance" law providing but a fortuitous backdrop, while others involve only factual disputes raised largely in duels involving the grant or denial of motions and counter motions for summary judgment.

To preserve editorial continuity the cases decided during the current survey period will be discussed in conformance with the general outline and subject matter headings used in past years. Where certiorari to the supreme court has …

Environment, Natural Resources And Land Use, J. William Futrell

Mercer Law Review

During the survey period, both the courts and the legislature moved to resolve basic uncertainties as to the validity of land use, natural resource, and environmental protection laws and regulations. In Barrett v. Hamby, the court clarified the relationship between the taking clause and police power regulation and moved to a position closer to the mainstream of American law. The General Assembly sought to resolve any doubts as to the State's ability to legislate in the land use and natural resource protection field by adding language to the proposed editorial revision of the state constitution which specifically bases future …

Local Government Law, R. Perry Sentell Jr.

Mercer Law Review

In this day, the general practice which does not typically touch upon some aspect of "local government law" is a rare one indeed. What may once have been peripheral has become truly central. These realities were duly reflected during the survey period, when the appellate courts rendered more than 80 material decisions and the General Assembly enacted more than 20 notable measures.

The court decisions are arranged by subject matter, and only the most noteworthy legislative products are included. Not surveyed are local and special enactments, population statutes, and resolutions proposing amendments to the constitution but not yet ratified.

Welcome …

Real Property, George A. Pindar

Mercer Law Review

The period of this survey includes a great quantity of judicial writing from the Georgia appellate courts dealing with difficult problems and often accompanied by sharp and persuasive dissenting opinions.

Torts, Hardy Gregory Jr.

Mercer Law Review

The evolution of the Family-Purpose-Car Doctrine in Georgia over the years has been a most interesting subject to observe. A new aspect was added this year by the Supreme Court of Georgia in Phillips v. Dixon.

The doctrine provides that the head of a family who keeps and maintains an automobile for the use of the members of the family is responsible for injuries to third parties that result from the negligent use of the automobile by a member of the family if the automobile is being used in furtherance of a family purpose.3 It has long been held …

Wills, Trusts And Administration Of Estates, James C. Rehberg

Mercer Law Review

Both the General Assembly and the courts were active during the past year in the area of fiduciary law. The marked increase in legislation, at least as compared to that of the immediately preceding session, may be a reflection of the nationwide attention being given to revision of the probate codes. The work of the General Assembly and of the courts will be discussed in that order.

Trial Practice And Procedure, J. Ralph Beaird, C. Ronald Ellington

Mercer Law Review

Each year the Georgia appellate courts decide several hundred cases that raise issues of trial practice and procedure. The period surveyed in this article covers the tenth year of cases interpreting the Long-Arm Statute and the ninth year of cases decided under the Civil Practice Act. The gradual judicial development of these important laws has been fascinating to watch and comment on. A steady improvement in both the quality and predictability of these decisions can be observed and should be applauded.

The cases selected for comment herein are those deemed the most significant because they either indicate a new direction …

State And Local Taxation, L.O. Buckland, Gary B. Andrews

Mercer Law Review

This survey covers the cases decided over the past two years, since the state and local tax section was omitted in the last annual survey. The principal activity during this period concerned ad valorem taxation, but the nature of many of these cases permits them to be noted in summary fashion. If this and previous surveys are any indication, the concern of property owners over rising ad valorem taxes is more likely to be aired in court than their concern over any other form of taxation.

As in previous surveys, this review divides the cases into the major tax areas …

Workmen's Compensation, George N. Skene

Mercer Law Review

During the survey period, the appellate courts of Georgia decided about 35 cases and the U.S. Supreme Court denied certiorari in one; the General Assembly passed three workmen's compensation bills in 1975 and none in 1976; and the State Board of Workmen's Compensation opened eight offices throughout the state and staffed each with an administrative law judge (a new name for directors and deputy directors).

The Omnibus Hearing: Benefit Or Burden For State Courts?, Joel J. Fryer

Mercer Law Review

The inefficiency of the criminal justice system has come to be recognized by judicial reformers as a major problem that has been exacerbated by the expansion of the rights of defendants. During the past 15 years, largely in response to U.S. Supreme Court decisions attempting to insure due process and promote fairness, trial courts have had to accommodate not only the resultant changes in criminal practice and procedure but also the increased caseload caused by defendants' assertion of constitutional rights which have been recently articulated and guaranteed. The recognition that the burden placed on courts must not be so great …

Can Georgia Bank On Its Garnishment Laws?*, Richard B. Badgley, Michael F. Swick

Mercer Law Review

Since the late sixties the field of creditors' remedies has undergone a series of changes brought about by several U.S. Supreme Court decisions. Old concepts of protection for the creditor have been changed or modified to recognize procedural due process rights of the debtor. While it is easy to say that there have been changes, it is becoming increasingly more difficult to identify exactly what is required by the courts to satisfy the Due Process Clause of the Fourteenth Amendment.

When the U.S. Supreme Court declared the Georgia prejudgment garnishment statutes unconstitutional in North Georgia Finishing Co. v. Di-Chem, …

New Act Is A Step Toward Landlord-Tenant Equality In Georgia, Nancy Terrill

Mercer Law Review

Beginning in the fall of 1975, members of the 1976 session of the General Assembly spent many hours negotiating and finally passing what appears to be a landmark law for Georgia tenants. Although there is no comparison to the extensive changes proposed by the Uniform Residential Landlord Tenant Act, Senate Bill 472 as it passed in 1976 does mark a new beginning toward equalizing the landlord-tenant relationship and eliminates at least some of the obstacles encountered by tenants seeking remedies for substandard housing conditions.

This article first will outline the more significant aspects of landlordtenant law as it has existed …

Assault Leading To Homicide May Be Used To Invoke Felony-Murder Rule, William P. Adams

Mercer Law Review

In Baker v. State, the Georgia Supreme Court held that "the Georgia legislature intended felony murder to encompass all felonies as 'felony' is defined in Code §26-401(e)." The court refused to adopt the "merger" doctrine that has been applied by some states to the felony-murder rule., The defendant was convicted of felony murder' for the shooting death of Roger Clark and sentenced to life imprisonment. Clark and one other person entered the defendant's bedroom before 5:30 one morning to collect a debt allegedly owed to Clark by the defendant. The defendant fired one shot over the heads of the …

Consent To Elective Surgery Valid Even If Doctor Didn't Warn Of Known Risks, Richard L. Hodge

Mercer Law Review

In Young v. Yarn, the Georgia Court of Appeals interpreted the Georgia Medical Consent Law as not requiring a physician to warn a patient of the known risks of elective surgery for the patient's consent to be valid. The court thus decided that the doctrine of informed consent does not exist in Georgia as between patient and physician.

The plaintiff, Mrs. Maxine Young, engaged the defendant, Dr. Charles P. Yarn, a specialist in plastic and reconstructive surgery, to perform a meloplasty (facelift). While the defendant did render a general explanation of the procedures involved, he did not advise her …

'Materiality' Limits Prosecutors' Duty To Disclose Exculpatory Evidence To Defense, James K. Knight Jr.

Mercer Law Review

In United States v. Agurs, the U.S. Supreme Court held for the first time that criminal prosecutors have a constitutional duty to voluntarily disclose exculpatory evidence to a defendant even when the defense doesn't request such evidence. The Court, however, limited the scope of this new obligation by narrowly defining the category of material evidence to which it applies. It held that the duty arises only when the exculpatory evidence is so material that had it been disclosed, its use at trial would have created a reasonable doubt of the defendant's guilt that did not otherwise exist.

Respondent Agurs …

A Party Need Not Show Prejudice Or Surprise To Impeach Its Own Witness, Robert R. Gunn Ii

Mercer Law Review

In Wilson v. State, the Supreme Court of Georgia unanimously held that a party may impeach the credibility of its own witness with that witness' prior inconsistent statement without showing that the testimony is a total surprise or affirmatively damaging to the party's case.

Bill Ray Wilson was convicted of murder and armed robbery on the basis of testimony from three prosecution witnesses. His case consisted solely of his sworn denial. The testimony of one prosecution witness was inconsistent with a previous written, sworn statement in which the witness had said Wilson had confessed to the murder in his …

Private Club's Lease From City At Token Rental Does Not Constitute State Action, Chix Miller

Mercer Law Review

In Golden v. Biscayne Bay Yacht Club, the U.S. Court of Appeals for the Fifth Circuit held that where the City of Miami's only connection with the defendant yacht club was its lease of certain bay bottom lands to the club for $1 per year, the action of the club in barring blacks and members of the Jewish religion from membership did not constitute state action under 42 U.S.C.A. §1983.

Biscayne Bay Yacht Club was organized in 1887, nine years before the City of Miami became a municipality. Except for the lease, the City of Miami never participated in …

Scienter Required For Civil Liability Under Sec Rule 10b-5, William H. Buckley

Mercer Law Review

In Ernst & Ernst v. Hochfelder, the U. S. Supreme Court held that an action for civil damages cannot be maintained under §10(b) of the Securities and Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5, unless there is an allegation of the defendant's intent to deceive, manipulate or defraud. Thus, some element of scienter is required, and liability cannot be imposed for negligent conduct alone.

The suit arose following exposure of a fraudulent securities scheme perpetrated by Leston B. Nay, president and principal stockholder of First Securities Company of Chicago (First Securities), a member of the …

Summary Judgment For Divorce Required When One Spouse Swears To Irretrievable Breakdown, Kenneth R. Carswell

Mercer Law Review

In Manning v. Manning, the Supreme Court of Georgia held that a divorce must be granted on a motion for summary judgment after one spouse alleges an irretrievable breakdown of the marriage and then swears in an affidavit that he is unwilling to cohabit with his spouse, that there are no prospects for reconciliation and that the marriage is irretrievably broken. There is, at that point, no issue of fact for the trial court to resolve, the supreme court said.

The husband in Manning filed a complaint for divorce alleging that the marriage was irretrievably broken. The wife in …

The Economic Effects Of Monopoly: A Lawyer's Guide To Antitrust Economics, David R. Kamerschen

Mercer Law Review

Four factors were influential in my decision to write this survey paper summarizing what economists believe theoretically and have found empirically to be the major economic (and noneconomic) effects of monopoly. First, in my work as an expert witness in antitrust cases representing both private parties and public bodies, I have found a glaring lacuna in the minds of some judges, a number of lawyers and most jurors in the area of antitrust economics. Second, this feeling has been fortified by my guest lectures in antitrust law courses; while the students are bright and the teacher dedicated, an acceptable level …

Constitutional Law--Civil Rights--Georgia's Bar Exam Does Not Unconstitutionally Discriminate On The Basis Of Race, Richard B. Badgley

Mercer Law Review

In Tyler v. Vickery the Fifth Circuit Court of Appeals held that the Georgia bar examination does not discriminate against blacks in violation of the equal protection clause of the fourteenth amendment and that traditional constitutional tests, rather than EEOC guidelines promulgated under title VII of the Civil Rights Act of 1964, are the appropriate standards by which the constitutionality of the examination must be judged. The court further held that the failure to provide for a review of a failing grade does not violate the due process clause of the fourteenth amendment because those who fail the bar exam …