Frolic of His Own (40 page)

In alleging a bolt of lightning as the proximate cause of the victim's destruction in the instant case, defendant contends that the court erred in submitting the question of negligence to the jury and should have declared as a matter of law that an act of God was responsible for the dog Spot's death. Further, it has been held that this need not be the immediate cause, if it followed in a logical and unbroken sequence originating with the act of God (Blythe v. Denver & R.G.R Co., 15 Colo. 333, 25 P. 702), and thus even absent the corpus delicti where singed fur might have evidenced that direct encounter with the Deity the fright so engendered would without physical impact be sufficient in its internal operation in that ghastly interval to cause death (Louisville & N.R. Co. v. Melton, 158 Ala. 509, 47 SO. 1024).

It is quite universally held that a casualty cannot be ascribed exclusively to an act of God thus excluding liability where any human agency has intervened in or contributed to the result (Cachick v. U.S. (D. III.) 161 F
Supp. 15), and hence where by act or negligence such intervention is alleged it becomes a matter for a jury as triers of fact. ‘Negligence, it must be repeated, is conduct which falls below the standard established by law for the protection of others against unreasonable risk, it necessarily involves a foreseeable risk, a threatened danger of injury, and conduct unreasonable in proportion to the danger' (Prosser, Law of Torts, 4th ed.). While lightning is notorious as an act of Cod within the comprehension of the law, ‘when the negligence of a defendant “concurs” with an act of Cod, which is to say an unforeseeable force of nature, he is to be held liable' (Prosser op. cit., and see Manila School Dist. No. 15 V. Sanders, 1956, 226 Ark. 270, 289 S.W.2d 529). Honouring the familiar maxim causa causea est causa causati plaintiff avers, albeit in more homespun language, such concurrence on the part of party to the action by impleader the creator of Cyclone Seven in situ and there stipulated ‘to stand freely exposed to natural forces' (Szyrk, supra). Where plaintiff further alleges that these impediments to its removal were swept away by the appeals court decision reversing this major provision in Szyrk, supra, defendant's disclaimer on grounds of the lack of a demolition permit required by municipal ordinance for such a procedure which, in the usual course of events would be issued by and to itself, has provoked the further charge of conspiracy wherein plaintiff cites the prominent presence on the Village Board of one Mel Kandino-poulis as chief obstacle to such issuance, submitting in evidence the expanding premises of Mel's Kandy Kitchen in the form of a sunny new dining area overlooking Cyclone Seven and a printer's dummy of a projected new menu offering quiche Lorraine, caesar salad with arugula, sangria and similar enticements to the sophisticated palates of prosperous out of town visitors where hoagies and a Bud by local custom had hitherto prevailed. These charges were dismissed by the court under common law immunity for public officers, based less on the ‘desire to protect an erring officer . . . (than on) a recognition of the need of preserving independence of action, without deterrence or intimidation by the fear of personal liability and vexatious suits' Restatement, Second, Torts 895D, see also Learned Hand, J., in Gregoire v. Biddle (2d Circ. 1944) 177 F.2d 579.

In dismissing these allegations in toto the court found plaintiff's claims to be lodged in pure conjecture with no facts alleged to support recovery of the chattel safe and unharmed upon or during removal of the vehicle of its detention. Were we now ourselves to stray beyond these posted limits in further pursuit of the matter our path would soon be joined with that taken at excessive speed through the State of New Jersey by the defendant who arrived therewith for an on time appointment
in Philadelphia with a bolt of lightning (compare Berry v. Sugar Notch Borough, 1899, 191 Pa. 345; Doss v. Town of Big Stone Gap, 1926, 145 Va. 520, 134 S.E. 563), an appointment better kept in Samara by that special breed of novelist driven by despair to embrace ‘the unswerving punctuality of chance' (cit. omitted), sinking us deeper in the twilight of confusion from whence we shall now emerge inter canem et lupum, as it were.

In examining defendant's claim that plaintiff should have been nonsuited by the court and the case dismissed as a matter of law as an ‘act of God,' we have taken judicial notice of plaintiff's objection to the jury charge as it centered upon that phrase time honoured since its introduction by that contemporary and rival of the aforementioned Francis Bacon at the court of Elizabeth I, England's first Lord Chief Justice Lord Edward Coke. While far from questioning his piety, it behooves us to recall Lord Coke's diligent concern for the common over the ecclesiastical law then so prevalent in addressing ourselves to its vulgar version confronting the bench today in modern dress.

By ‘an act of God' the law denotes a natural and inevitable phenomenon occurring beyond human origin and intervention. It is that simple, and the high tension natural discharge of electricity in the atmosphere known as lightning must clearly qualify to head such a list. ‘But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collarbone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.' (Holmes op. Cit. Lecture I). Like the cat's clavicle, this ‘act of God' has survived elsewhere as Deo juvante, Deo volente, ex visitatione Dei from depictions of the supreme god Jove in Roman mythology clutching bolts of lightning, hearkening back to prehistoric man cowering in terror from these flashes splitting the heavens with the voice of thunder to be placated, at any cost to reason, by fabricating privileged relations with the Deity as magic despaired and became religion. Thus even in our own time if not careful we may find ourselves sharing a ride with the defendant in Breunig v. American Family Ins. Co. whose special relationship to God as ‘the chosen one to survive at the end of the world' led her to ‘believe that God would take over the direction of her life to the extent of driving her car' so that just before striking the oncoming truck she was confident ‘that God was taking ahold of the steering wheel' (45 Wis.2d 536, 173 N.W.2d 619).

On the other hand the proceedings in the case here under appeal were only further inflamed by the brief submitted by an ironically labeled
amicus curiae on behalf of cross-claimant Mr Szyrk quoting from the writings of E M Cioran ‘[c]ontemplating this botched Creation, how can we help incriminating its Author, how—above all—suppose him able and adroit? Any other Cod would have given evidence of more competence or more equilibrium than this one: errors and confusion wherever you look!'

‘When an issue of proximate cause arises in a borderline case..' wrote Chief Judge Magruder in Marshall v. Nugent (U.S. Court of Appeals, 1st Circ., 1955. 222 F.2d 604), ‘we leave it to the jury with appropriate instructions. We do this because it is deemed wise to obtain the judgment of the jury, reflecting as it does the earthy viewpoint of the common man —the prevalent sense of the community' which found broad expression in the testimony of witnesses called to assist this jury in its deliberations. There, ‘God struck that (expletive) pile of (expletive) with his good old lightning because it's a (expletive) abomination on this beautiful land the Lord give us here, some old pup got in the way that's just a accident,' contended with ‘God He don't have accidents, wouldn't never have struck a poor dumb little creature like that, Bible says right there He marks the sparrow's fall don't it?' provoking the rude rejoinder ‘Don't say He does nothing about it though does it?' However these earthy viewpoints may reflect disagreement, God presides over both in common with plaintiff's objection to the court's instructions to the jury as implying divine culpability in the matter before us through its use of the phrase ‘an act of God.' With all respect due the parties, the jury, the God fearing community, and the common man of which it seems to have more than its share of over half this country's population planning an afterlife in the felicitous company of Jesus and even God himself, belief in God has neither bearing upon nor any relevance to these earthbound proceedings. In short, He may enjoy as much room in your hearts as you can afford Him, but God has no place in this court of law.

In our instructions to the jury the court may have erred in its effort to shed this confusion and should better have issued a directed verdict for the defendant and his cross-claimant. The jury verdict is set aside N.O.V. and judgment for damages to plaintiff dismissed.

The black robed effigy swung closer, close enough for the cameras to read
I
MPEACH
pinned to its skirts before the flames consumed it,
S
POT
L
IVES
, G
OD
I
S
J
UDGE
, Stars and Bars, rocks and beer cans,
US GOVT KEEP OUT
and hands crowding forward unfurling the headline
C
ALLS
G
OD
C
AT'S
C
HINBONE
through smoke swirling from the pork barbeque pit where a suited man in string tie hailed the thronged white faces buttoned to the
throat many even clean shaven as their friend and neighbor stood to welcome our distinguished guest the honourable United States Senator here from championing your sacred rights in the black crime and drug capital of the nation wiping grease from his chin with a paper party napkin blazoning his name as he struggled to rise to the occasion from a folding chair flourishing a rib in response to their yelps of the name on the napkin with a scattering of more neighborly familiar salutes to Old Lardass since he'd ‘growed up right down the road here apiece' well, he'd come back here looking for friends and by Golly he'd found them, they hadn't changed a bit in all that time and their moans confirmed that they heard this as a compliment —but you all mean so much to me it means so much just to be with you here like this. He wasn't much good at making pretty speeches but he didn't think they wanted to hear a lot of pretty words at a time like this while the Federal government had its Federal courts trampling their sacred rights to religious freedom, carry guns, trial by jury enshrined for all to see right up there in the U.S. Constitution —like we just witnessed here right before our eyes how this Federal U.S. judge just steps in there to suit his fancy and throws out a verdict reached after calm deliberation by a jury of you honest citizens black folk and white, right there in the Fourteenth Amendment in black and white, the jury that's the bulwark and cornerstone of American justice like you don't see in these dictator atheist countries slaps them right in the face and hands it over to this foreigner who came in here and put up this monstrosity he's from one of these atheist countries himself, says right here someplace in black and white this Christian sacrifice and suffering make him puke. You don't hear that kind of language before women and children at my house and I'm sure at yours neither but when I read that I was most like to puke myself, your hard earned Federal tax dollars going on things like that while they want to kill subsidies to our good hard working tobacco planters and growers of other nutritious crops supporting art and pornography to where nowadays you can't hardly tell them apart and paying these welfare women to go get their abortions. You put them together with all these homos parading around in the arts and pretty soon there won't be any taxpayers left, we keep going down this Godless path till one day they'll go and abort the Second Coming and nobody know the difference. And that's where this government interference with our sacred state's rights so many died for is leading us, sending in these Federal judges that take our great American language and twist the words around to mean whatever they want, calls God no better than a cat's shinbone, calls this beautiful land of ours a botched Creation and throws God right out of the courtroom, you heard him, do whatever they please because they're appointed for life. Well we have an answer for that, call it impeachment
right there in the Constitution and that's the message I'm taking back up to Washington. They pay him with your good U.S. tax dollars and I'm going to tell them to take a look at one, take a good look at a U.S. dollar bill where it says In God We Trust and that U.S. dollar's gospel enough for me. That's the country I served back in the dark days of war right down here at Fort Bragg and the U.S. Constitution I swore to protect and defend from enemies foreign and domestic and we're seeing more than our share of both right down here in our own backyard. Now let's have us a little sip of that good bourbon.

And sure enough, there on the split page of the morning's paper flamed the black robed effigy of the craggy Federal judge who, like the sharp edges and jagged peaks of the controversial steel sculpture Cyclone Seven, had become a lightning rod for the passions of this once sleepy community, erupting last night in a virtual replay of an earlier melee which left seventy-two injured and extensive property damage in its wake. Among the dozen arrests that evening, that of Billy Pinks, thirty-two, an unemployed auto body worker charged with assault was later reduced to statutory rape on his plea that the ‘provocative message on her T shirt got his juices going' and the admission by the twelve-year-old victim that she had deceitfully led him to believe she was fourteen. Mr Pinks was sentenced to thirty days probation and an apology to the victim identified only as Millie K, minor. The latest disturbance centered about an outdoor pork barbeque rally for U.S. Senator Orney Bilk, who is visiting the area on a campaign swing for the first time since he left his boyhood home in nearby Stinking Creek to enlist in the army following the end of hostilities in Southeast Asia. After graduating from army cooking school he was placed in charge of a field oven unit at Fort Bragg, N.C. Senator Bilk's interest in politics was kindled by the conviction on bribery charges involving unorthodox liquor procurement of an uncle whose place he later filled in the state legislature.