Frolic of His Own (39 page)

—But, but damn it Christina that's what we're talking about! What do you think the law is, that's all it is, language.

—Legal language, I mean who can understand legal language but another lawyer, it's like a, I mean it's all a conspiracy, think about it Harry. It's a conspiracy.

—Of course it is, I don't have to think about it. Every profession is a conspiracy against the public, every profession protects itself with a language of its own, look at that psychiatrist they're sending me to, ever try to read a balance sheet? Those plumes of the giant bird like the dog cornering his prey till it all evaporates into language confronted by language turning language itself into theory till it's not about what it's about it's only about itself turned into a mere plaything the Judge says it right there in this new opinion, same swarm of flies he's stepping on down there right now with their motion to throw out the jury's verdict if they've got any sense.

—He can't do that can he?

—Wait and see.

—But how can he. I thought that this was in the Constitution, a jury of your peers?

—A story you hear in first year law school, same argument Oscar's grandfather got into with Holmes and here's his son, here's old Judge Crease down there following Holmes down the line. Justice Learned Hand exhorting Holmes ‘Do justice, sir, do justice!' and Holmes stops their carriage. ‘That is not my job,' he says. ‘It is my job to apply the law.' Wait and see.

—And see what! My God Harry what's he trying to do down there, the whole world flying to pieces war, drugs, people killed in the streets while this brilliant Federal judge up for the high court spends his precious time on this piece of junk sculpture and some dead dog, what's he trying to do!

—Trying to rescue the language, Christina. Wait and see.

OPINION

James B., Infant v Village of Tatamount et al., US District Court, S D Va. 453-87

CREASE, J.

This is a motion under Rule 50(b) of the Federal Rules of Civil Procedure for a renewal of a motion for judgment as a matter of law after trial.

Towering over this case both figuratively and literally stands the massive outdoor steel sculpture known as Cyclone Seven which occupies a freely accessible open space in the Village of Tatamount. In an earlier action before this court the creator of this unique work, R Szyrk, sought and was awarded a permanent injunction barring the Village from removing, altering or damaging this artistic structure in any manner for any reason or for none, in a suit occasioned by its clear intention to deliver forth an animal which had by misadventure strayed into and become entrapped therein (Szyrk v. Village of Tatamount, S.D. Va. 105-87). Upon appeal this judgment was struck down thus granting the Village the right of removal in the course of which it might be presumed the animal would gain its freedom; in the event, however, before these measures were carried out, Cyclone Seven was struck by a bolt of lightning, and its reluctant tenant found to have been released forever from the travails of earthly existence

James B, Infant, acting through his curator bonis and guardian ad litem, filed an action as owner and bailor of the chattel, a dog of tender years named Spot, alleging negligence on the part of the Village. In a cross claim for indemnity under Fed. R Civ P 14 the suit was joined by impleader in the person of the sculpture's creator R Szyrk whose diversity of citizenship has brought the matter before this jurisdiction under 28 U.S.C. 1332; 72 Stat. 415 (1958). The case was submitted to the jury with instructions to which plaintiff objected. The jury nonetheless found for plaintiff and defendants appeal seeking a judgment N O.V for the setting aside of the verdict.

The issue involved is whether the Village in its capacity as bailee, however inadvertently and unhappily arrived at, failed in its duty to bailor under the requisite standard of care and through such alleged negligence is liable for damages so incurred

The relationship of parties in cases of bailment constitute the large body of law pursued with a vengeance over the centuries in Justice Holmes' The Common Law Lecture V ‘dealing with persons who have a
thing within their power, but who do not own it, or assert the position of an owner for themselves with regard to it, bailees, in a word.' In the instant case the defendant has urged dismissal of this designation arguing not only that no agreement was entered into with the plaintiff to so commit his chattel in trust for a specific purpose to be returned unharmed once such purpose was accomplished, but further that its efforts to rid itself of this unwelcome guest were a matter of court and public record. Here plaintiff rebuts, answering that whatever the originating circumstances as scrutinized in Szyrk, supra, any encumbrance was lifted by the decision of the appeals court restoring the Village as master of its own house and the duties assumed therewith. ‘For the bailee being responsible to the bailor, if the goods be lost or damaged by negligence, or if he do not deliver them up on lawful demand, it is therefore reasonable that he should have a right of action' 2 Steph. Comm. (6th ed.), 83, cited Dicey, Parties, 353; 2 Bl. Comm. 453; 2 Kent, 585 as quoted by Holmes op. cit. In alleging negligence so construed, plaintiff asserts therewith the further charge of conversion linked to irrecoverable loss of the chattel wherein his claim for damages resides.

Central to actions in bailment are the concepts of possession, by the bailee, and of ownership by the bailor. We have skirted the former to return to it below in considering the charge of conversion, and proceed now to re-examine the latter as giving upon the nature of the chattel at the heart of this action.

Due to their known peculiarities and wide variety, dogs are regarded by the law as in a class by themselves, and while under ancient common law deemed to rank low as property compared to cattle, sheep and barnyard fowl, the law has since evolved to recognize them as things of value in which the rights of property generally prevail within the statutory meaning and use of the word ‘chattel.' While it has been granted that dogs have no intrinsic value as dogs unlike, in our own and other civilized cultures, animals domesticated for the purpose of being eaten where a fair market value may be rendered without undue difficulty, actions for damages arising from a dog's injury or death are not confined to its owner's showing of its market value as a dog, but most frequently on evidence warranting its value attaching to such individual qualities as pedigree and rarity of breed, intelligence, talent in the field or at herding, prize winning credentials at dog shows and the like (Wilcox v. Butt's Drug Stores, 38 N.M. 502, 35 P.2d 978, 94 A.L.R. 726. See also McCallister v. Sappingfield, 72 Or. 422, 144 P. 432, quoted with approval in Green v. Leckington, 192 Or. 601, 236 P.2d 335). None of these qualities distinguished the dog Spot. Of indeterminate breed, undetermined lineage and unprepossessing appearance, a follower not a leader, neither
hunter nor gatherer, his only talent lay in his uncritical and colourblind offer of companionship the loss of which plaintiff alleged among his causes of action dismissed by the jury under instructions from this court holding that sentimental value may not be allowed as an element of damages (Wilcox v. Butt's Drug Stores, supra).

However it is well established that where an animal has little or no value for sale or consumption, that assigned to the uses to which it is put provides grounds for recovery where loss of profits in a business enterprise relying on these uses is due to its detention and wrongful taking (U.S. v. Hatahley Ca. 10 Utah) and its unjustified injury or destruction (Moses v. Southern P.R. Co. 18 Or. 385, 23 P. 498) whether by wilful act (Helsel v. Fletcher, 98 Okla. 285, 225 P. 514, 33 A.L.R. 792) or by negligence or omission (Brown v. Sioux City 424 lowa 1196, 49 N.W.2d 853; Bombard v. Newton, 94 Vt. 354, 111 A. 510, 11 A.L.R. 1402). In the case at bar, the value of the decedent as the wellspring of a burgeoning trust in plaintiff's name composed of royalty and licensing fees pertaining to its various profitable configurations as dolls, ceramic items, mugs, keychains, puzzles, T shirts, logos, comic strip rights and a projected animated series for television is plainly evident and even, in point of fact, inadvertently attested to by defendant in an earlier and wondrously ill considered action filed and dismissed in a lower jurisdiction claiming a generous share of such profits as having provided the circumstance for its notorious predicament in the first place.

Here by peradventure we re-encounter the defendant in his alleged capacity among bailees ‘who have no interest in the chattels, no right of detention as against the owner, and neither give nor receive a reward' (Holmes op. cit., Lecture VI, Possession), and thence to the subsequent charge of conversion wherein plaintiff's claim embraces what might be termed the last act by defendant in this drama, referring not to Spot in vivo but, as on the corpse littered stage with which Shakespeare brings down the curtain on Timon of Athens and elsewhere, to Spot's remains, summarily removed by agents of the defendant under the eyes of the press and a wide national television audience exercising its obligation under a century old municipal ordinance mandating the speedy and orderly removal of the carcasses of dead animals as ranking in value no higher than garbage with which they share a pungent attraction to flies threatening the spread of disease germs among the local population. However an owner's property rights in an animal are not foreclosed upon its death (Knauer v. Louisville, 20 Ky. L. Rep. 193, 45 SW 510, 46 SW 701), and while granting that the body of a dead animal may not pose a nuisance per se, it may be or become one in fact (Schoen Bros. v. Atlanta, 97 Ga. 697, 25 SE 380; Richmond v. Caruthers, 103 Va. 774, 50 SE
265), plaintiff has claimed that in depriving him of the opportunity to remove and dispose of the remains within a decent interval after death (Richmond v. Caruthers, supra) his constitutional property right to due process under the Fifth and Fourteenth Amendments has thereby been violated irreversibly since the whereabouts of said remains are not now known. Notwithstanding the dark commerce of the Resurrectionists Burke and Hare, corpus humanum non recipit aestimationem, but property value in the animal remains in question is attested by purchase offers in evidence from taxidermists in Chicago, Dallas and Kamakura Japan, by an enterprising glover in San Francisco seeking the pelt as a prototype for a line to be marketed as ‘Hiawatha's Magic Mittens' labeled ‘Genuine Simulated Spotskin® Wear 'Em With The Furside Outside,' and an urgent bid from Bao Dai's Tasti-Snax in Queens Village, New York, for purposes undisclosed. Pending a search at the Village dump defendant demurred and the charge was dismissed ex mora at the discretion of the court.

The issues of animal trespass and the conflicting portrayal of Cyclone Seven as an attractive nuisance which were disposed of in an earlier action before this court (see Szyrk, supra) surfaced again in the jury trial here under review. As held in Baker v. Howard County Hunt, 171 Md. 159, 188 A. 223; Pegg v. Gray, 240 N.C. 548, 82 S.E.2d 757, and elsewhere, no liability attaches to the owner of a ‘reputable dog' for its straying without his consent and unaccompanied by him onto the land of another, and defendant's claim excluding the dog Spot from this category on grounds of his disreputable companions on neighborhood outings was dismissed. Where there is some authority for liability attaching to unfenced lands whereon are to be encountered erections or machinery negligently maintained so as to constitute a trap (Malernee Oil Co. v. Kerns, 187 Okla. 276, 102 P.2d 836), defendant denied such liability claiming as ordinary use free and open access to the subject premises and the erection thereon as public art where, by permitting the trespassing animal to roam at large, its owner assumed the risk for any harm or injury befalling it and thus yielded any right of action. Here the court concurred, since where plaintiff is found exempt from liability for the beast's trespass this does not make such trespass lawful rendering defendant liable for injuries not wilfully or wantonly inflicted (Pure Oil Co. v. Gear, 183 Okla. 489, 83 P.2d 389; Tennessee Chemical Co. v. Henry, 114 Tenn. 152, 85 S.W. 401). On the related charge of distraint, where the distress is lawful it is well established that the distrainer is obliged to feed and care for the animal which stands uncontested in this action and only in the event of his negligence will he be held liable (Kelly v. Easton, 35 Ida. 340, 207 P. 129, 26 A.L.R. 1042), but where such distraint is for any reason
illegal the distrainer regardless of negligence remains liable for any injury to the beast while under his care (Dickson v. Parker, 4 Miss. (3 How.) 219), and here such failure resulting in unjustifiable pain and suffering on the beast's part through any and each act of neglect or omission may appear in the garb of passive cruelty where intention is not essential, as in such wilful acts as tying a flaming oil can to a dog's tail in State v. Kemp, 234 Mo. App. 827, 137 S.W.2d 638, or setting the dog itself afire (Commonwealth v. Gentile, 255 Mass. 116, 150 N.E. 830). Thus where an action may be maintained on a case for unintended injury or destruction, it is obligatory upon the animal's owner not only to allege facts showing defendant's negligence, but that such injury or destruction came about through this negligence as the proximate cause.

Nowhere in all of law are we confronted by a concept that has sired more confusion and disagreement and so presumably swelled the coffers of the legal profession than that of ‘proximate cause,' a phrase derived from a formulation by then Lord Chancellor Sir Francis Bacon some four centuries ago, In jure non remota causa, sed proxima, spectatur, summoning shades of Ockham's razor from a past yet more remote. ‘Cause and effect find their beginning and end in the limitless and unknowable,' wrote Judge Powell in Atlantic Coast Line R. Co. v. Daniels (8 Ga. App. 775, 70 S.E. 203). ‘Therefore courts, in their finitude, do not attempt to deal with cause and effect in any absolute degree, but only in such a limited way as is practical and as is within the scope of ordinary human understanding. Hence arbitrary limits have been set, and such qualifying words as “proximate” and “natural” have come into use as setting the limits beyond which the courts will not look in the attempt to trace the connection between a given cause and a given effect.'