Grizzard v. Davis
| Decision Date | 09 April 1974 |
| Docket Number | No. 48873,No. 3,48873,3 |
| Parties | Bertha H. GRIZZARD v. Lewis C. DAVIS et al |
| Court | Georgia Court of Appeals |
Millard C. Farmer, Jr., Steven E. Fanning, Newnan, for appellants.
Jerry Willis, Richter & Birdsong, A. Quillian Baldwin, Jr., Allen B. Keeble, LaGrange, for appellees.
Syllabus Opinion by the Court
Bertha Hemmings Grizzard brought an action for personal injuries and damages in two counts. In Count 1 she alleged the County Commission of Troup County and the Building Superintendent of the Troup County Courthouse and Annex, individually and in their representative capacities, negligently injured her on July 24, 1972. She alleged that when she entered the ladies rest room of the courthouse annex, a metal door, constituting a man trap, fell on her and caused subsequent loss of vision in her right eye; and severely impaired vision in her left eye. In Count 2 she alleged that Dr. George A. McCrary, who treated her for the aforesaid injuries, negligently failed to exercise the degree of skill and care required of physicians, resulting in damages, both general and special.
The county authorities answered, and contended, among other things, that plaintiff had executed a release as to all injuries arising from the aforementioned incident. Defendant McCrary answered and alleged, among other things, that he had not been negligent in treating plaintiff.
The county authorities, in their representative capacities, moved for an order of dismissal. Dr. McCrary moved for summary judgment, based upon his not having committed negligence and upon the release.
A hearing was had and the trial judge granted the motion to dismiss as to the five county commissioners, in their representative capacities, on June 12, 1973. But another judgment of dismissal as to the five county commissioners, individually, was entered on June 22, 1973, although no written motion to dismiss in their individual capacities was ever filed in the court. Counsel for the county commissioners stated that he procured the amended order by going back before the trial judge, in the absence of and without notice to opposing counsel, and explaining that the earlier judgment of dismissal was simply as to the county commissioners in their representative capacities, but still left them in the case as individuals, and counsel was desirous of having the order amended, to which the court acceded. We repeat that this was in the absence of opposing counsel, and without notice to him.
The motion for summary judgment of Dr. McCrary, dismissing the case as to him, was granted on August 24, 1973. Plaintiff appeals from both orders sustaining the motions for dismissal and summary judgment, dismissing the case as to all defendants.
1. This court cannot sanction the holding of ex parte hearings after the parties are at issue in a case. Temporary restraining orders and temporary injunctions quite often have to be obtained instanter, otherwise property may change possession, and the matter may become moot. But in all other hearings before the court, both parties should be notified of the hearing with an opportunity of attending and voicing any objection that may be properly registered. Since 1909, the Georgia Bar Association has adopted and adhered to the Canons of Ethics for Lawyers and Judges as promulgated by the American Bar Association. (See 1947 Report of the Sixty-Fourth Session of Georgia Bar Association, pp. 151-154; and pp. 328-350.) Since the lawyers of Georgia are now incorporated into the State Bar of Georgia, some changes have been made. However, when the present case was pending in the lower court, the Canons of Judicial Ethics, as published on pages 922-929, in 220 Georgia Reports, were in full force and effect.
It is quite clear that the responsibility for enforcement of these Canons of Ethics rests more upon the shoulders of the judges of the courts than on the attorneys, although all have a responsibility thereunder.
Judicial Canon 11 provides: 'A judge should utilize his opportunities to criticize and correct unprofessional conduct of attorneys and counselors, brought to his attention; and if adverse comment is not a sufficient corrective, should send the matter at once to the proper investigating and disciplinary authorities.'
Judicial Canon 17 provides: 'A judge should not permit private interviews, arguments or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him, except in cases where provision is made by law for ex parte application.'
Clearly it became the duty of the trial judge in this case to remonstrate with the young attorney here representing the defendants, and to require notice to opposing counsel before the trial court amended his previous order, and dismissed the county commissioners, in their individual capacity.
Canon 7, Rule 3-107 (Code of Professional Responsibility; Ethics Considerations, EC 7-35) states that: '. . . an oral communication by a lawyer . . . should be made only upon adequate notice to opposing counsel.' (State Bar of Georgia, 1971-1972, Handbook and Directory Supplement.)
The young attorney here had been practicing only four years, and both he and opposing counsel seemed entirely unaware of the foregoing rule; and it is apparent that he had no deliberate intent to violate the Canons of Ethics. But trial judges are experienced and well-versed in these canons and it becomes their duty to guide and counsel with young attorneys in cases such as this, to the end that they will be made aware of these rules and of the importance of not violating any of the Canons of Ethics.
2. Since multiple parties defendant were involved, in order to be an absolute, final, appealable...
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