Friday the Rabbi Slept Late

by Harry Kemelman

  “Very few cases are that simple,” said the rabbi. “Can you tell me the circumstances under which he took the car? And also, just to keep the record clear, is it your car or your wife’s? You refer to it as your wife’s, but then you say you will have to pay for the motor.”

  Schwarz smiled. “It’s my car in the sense that I paid for it. And it’s her car in the sense that it’s the one she normally drives. It’s a Ford convertible, a ’sixty-three. The car I drive is a Buick.”

  “Nineteen sixty-three?” The rabbi’s eyebrows shot up. “Then it’s practically a new car. Isn’t it still within the guarantee period?”

  “Are you kidding, rabbi?” Schwarz snorted. “No dealer considers himself bound if the damage is due to the owner’s negligence. Becker Motors where I bought the car is as reliable as any dealer in the business, but Al Becker made me feel like a damn fool when I suggested it to him.”

  “I see,” said the rabbi, and indicated that he should proceed.

  “Well, there’s a group of us who do things together—go on theater parties, auto trips, that sort of thing. It all started as a garden club made up of a few congenial couples who lived near each other, but some of us have moved out of the area. Still, we meet about once a month. This was a skiing party to Belknap in New Hampshire and we took two cars. The Alberts drove up with the Reichs in their sedan. I took the Ford and we had Sarah, Sarah Weinbaum, with us. She’s a widow. The Weinbaums were part of the group, and since her husband died we try to include her in everything.

  “We went up early Friday afternoon—it’s only a three-hour ride—and were able to get some skiing in Friday before nightfall. We went out Saturday—all except Abe here. He had caught a bad cold and was sneezing and coughing. Then, Saturday night, Sarah got a call from her kids—she has two sons, one seventeen and one fifteen—to the effect that they had been in an automobile accident. They assured her it was nothing serious, and that’s how it turned out—Bobby had got a scratch, and Myron, that’s the oldest boy, had to have a couple of stitches. Still, Sarah was awfully upset and wanted to go home. Well, under the circumstances I couldn’t blame her. Since she had come up with us, I offered to let her take our car. But it was late and foggy out, and Myra wouldn’t hear of her going alone. So then Abe here volunteered to drive her back.”

  “Are you in agreement with what has been said so far, Mr. Reich?” asked the rabbi.

  “Yes, that’s what happened.”

  “All right, proceed, Mr. Schwarz.”

  “When we got home Sunday night, the car wasn’t in the garage. That didn’t disturb me, because obviously Abe wasn’t going to leave it at our house and then walk to his. The next morning, I went off in my own car and my wife called him to make arrangements about delivering her car. And then he told her—”

  “Just a minute, Mr. Schwarz. I take it that’s as far as you can go with the story from your own knowledge. I mean, from here on you would be telling what your wife told you rather than what you yourself experienced.”

  “I thought you said we weren’t going to have any legalistic rules—”

  “We’re not, but since we want to get the story down first, obviously it would be better to let Mr. Reich continue. I just want the story in chronological order.”

  “Oh, all right.”

  “Mr. Reich.”

  “It’s just as Ben told it. I started out with Mrs. Weinbaum. It was foggy and dark of course, but we drove along at a good clip. Then, when we were getting home, the car slowed to a stop. Fortunately, a cruising car came along and the cop asked what the trouble was. I told him we couldn’t get started, so he said he’d get us a tow. About five minutes later, a tow truck came from an outlying garage and pulled us to town. It was late then, past midnight I guess, and there was no mechanic in attendance. So I called a cab and took Mrs. Weinbaum home. And wouldn’t you know it, when we got there the house was dark and Mrs. Weinbaum had forgotten her key.”

  “Then how did you get in?” asked the rabbi.

  “She said she always left one of the windows unlatched and it could be reached by climbing the porch. The way I was feeling, I couldn’t have made it up a steep flight of stairs, and of course she couldn’t. The cabby was a young fellow but claimed he had a game leg. Maybe he did and maybe he didn’t, and maybe he was afraid we were trying to get him involved in a burglary. But he did tell us that the night patrolman usually stopped for coffee and a cigarette at the milk plant about that time. By now Mrs. Weinbaum was almost frantic, so we sent the cabby after the cop, and just as they came back, who should drive up but the two boys. They’d gone to a movie in town! Well, I guess Mrs. Weinbaum was so relieved to see they were all right she didn’t even bother to thank me, just swept into the house with them, leaving me to explain it to the cop.”

  Schwarz, sensing an implied criticism, said, “Sarah must have been very upset because normally she’s very considerate.”

  Reich made no comment, but continued, “Well, I told the cop what had happened. He didn’t say anything, just gave me that suspicious look they have. You can imagine how I felt by that time. My nose was stuffed up so I couldn’t breathe, my bones ached, and I guess I was running a fever. I stayed in bed all day Sunday, and when my wife came home from Belknap, I was asleep and I didn’t even hear her come in. The next morning, I still felt rotten so I decided not to go to the office. When Myra called, Betsy, my wife, answered. She woke me up and I told her what had happened and gave her the name of the garage, to give to Myra. Next thing I know, maybe ten minutes later, the phone rings again and it’s Myra and she insists on talking to me. So I got out of bed and she tells me that she has just called the garage and they say that I ruined her car, that I ran it without oil and that the whole engine is junk and that she’s holding me responsible, and so on and so forth. She was pretty rough over the phone, and I wasn’t feeling too good, so I told her to do anything she darn pleased, and hung up on her and went back to bed.”

  The rabbi looked questioningly at Schwarz.

  “Well, according to my wife, he said some other things too, but I guess that’s about what happened.”

  The rabbi swiveled around in his chair and slid back the glass door of the bookcase behind him. He studied the books on the shelf for a moment, and then drew one out. Schwarz grinned, and catching Wasserman’s eye, winked at him. Reich’s mouth twitched as he suppressed a smile. The rabbi, however, was oblivious as he thumbed through the book. Every now and then, he halted at a page and skimmed through it, nodding his head. Occasionally, he massaged his forehead as if to stimulate cerebration. He looked about his desk nearsightedly and finally found a ruler, which he used to mark a place in the book. A moment later he used a paperweight to mark another. Then he drew out a second volume, and here he seemed more certain for he quickly found the passage he was looking for. Finally he pushed both volumes away and looked benignly at the two men before him.

  “There are certain aspects of the case that are not entirely clear to me. I notice, for example, that you, Mr. Schwarz, speak of Sarah, whereas you, Mr. Reich, speak of Mrs. Weinbaum. Does this indicate merely a greater informality in Mr. Schwarz, or that the lady is closer to the Schwarzes than she is to the Reichs?”

  “She was a member of the group. We were all friends. If any one of us had a party or an affair, they would invite her just as we did.”

  The rabbi looked at Reich, who said, “I’d say she was closer to them. We met the Weinbaums through Ben and Myra. They were particularly friendly.”

  “Yes, perhaps that’s so,” Schwarz admitted. “What of it?”

  “And it was in your car that she drove up to the skiing area?” asked the rabbi.

  “Yes, although it just worked out that way. What are you driving at?”

  “I am suggesting that she was essentially your guest, and that you felt a greater sense of responsibility for her than did Mr. Reich.”

  Mr. Wasserman leaned forward.

  “Yes, I suppose that’s so,” Schwarz
admitted again.

  “Then in driving her home, wasn’t Mr. Reich in a sense doing you a favor?”

  “He was doing himself a favor too. He had a bad cold and wanted to get home.”

  “Had he made any suggestions to that effect before Mrs. Weinbaum received the call?”

  “No, but we all knew he wanted to get home.”

  “If the call had not come, do you think he would have asked for your car?”

  “Probably not.”

  “Then I think we may leave it that in driving Mrs. Weinbaum home he was doing you a favor, however advantageous it may have been to himself.”

  “Well, I don’t see that it makes any difference. What of it?”

  “Just this, that in the one case he would be in the position of a borrower, but in the second case he is in effect your agent, and a different set of rules applies. As a borrower, the responsibility of returning your car in good condition rests squarely on him, and to avoid liability he would have to prove that there was a flaw in the car and also that there was no negligence on his part. Furthermore, it would be his responsibility to make sure that the car was in good condition when he took it. As an agent, on the other hand, he has a right to assume that the car was in good condition and the burden of proof rests with you. It is you who has to prove that he was grossly negligent.”

  Wasserman smiled.

  “I don’t see that it makes much difference. I feel that in either case he was grossly negligent. And I can prove it. There wasn’t a drop of oil in the car. That’s what the garage mechanic said. Now, he let the oil run dry and that is gross negligence.”

  “How would I know the oil was low?” demanded Reich.

  Until now, both men had addressed themselves to the rabbi, talking to each other through him. But now Schwarz swung around and facing Reich directly, said, ‘You stopped for gas, didn’t you?”

  Reich also turned in his chair. “Yes, I stopped for gas. When I got into the car I noticed you had less than half a tank, so after we’d been driving for about an hour, I pulled into a station and told him to fill her up.”

  “But you didn’t tell him to check the oil,” said Schwarz.

  “No, and I didn’t tell him to check the water in the radiator or in the battery or the pressure in the tires. I had a nervous, hysterical woman on the seat beside me who could hardly wait until he finished pumping the gas. Why did I have to check everything out? It was practically a new car. It wasn’t a jalopy.”

  “And yet Sarah told Myra that she mentioned the oil to you.”

  “Sure, after we had driven on about five or ten miles. I asked her why should I, and she said you had on the way up and that you had put in a couple of quarts. So I said, Then certainly we don’t need any, and that ended that. She dozed off and didn’t wake up until we got stalled and she thought we were home.”

  “Well, I would say it’s customary when taking a long trip to check oil and water every time you stop,” insisted Schwarz.

  “Just a minute, Mr. Schwarz,” said the rabbi, “I am no mechanic, but I don’t understand why a new car would need a couple of quarts of oil.”

  “Because there was a small leak in the seal, but it was nothing serious. I noticed a few drops of oil on the garage floor and spoke to Al Becker about it. He said he’d take care of it but that I could drive all right until I got around to bringing it in.”

  The rabbi looked at Reich to see if he had anything to say in reply, and then leaned back in his swivel chair and considered. Finally, he straightened up with a jerk of his shoulders. He patted the books on the desk. “These are two of the three volumes of the Talmud that deal with the general subject of what we would call torts. The subject is treated very fully. This first volume treats of the general causes of damages, and the section that concerns an ox that gores, for example, goes on for about forty pages. A general principle is evolved which the rabbis applied broadly to all kinds of cases. It is the basic distinction they made between tam and muad, that is, between the docile ox and the ox that has already earned a reputation as a vicious beast by virtue of having gored on several occasions in the past. The owner of the latter was felt to be far more responsible in the event of a goring than the former, since he already had had warning and should have taken special precautions.” He glanced at Mr. Wasserman, who nodded in corroboration.

  The rabbi got up from behind his desk and began to pace the floor. His tone took on the singsong quality traditional with Talmudists as he followed the thread of the argument. “Now in this case, you knew your car leaked oil. And I suggest, that, at least while it was being driven, it leaked more than just a few drops, since you found it necessary to add two full quarts on the trip up. If Mr. Reich had been a borrower—and we come now to this volume which deals with the subject of borrowing as well as the law of agency—if Mr. Reich, for example, had said that he did not feel well and wanted to go home and had asked to borrow your car for the trip, it would have been his responsibility either to ask you if it were in good condition, or himself to check it. And if he failed to do so, even if the circumstances had been precisely the same as they were, then he would have been responsible and liable for the damage done. But we have already agreed that he was not a borrower but essentially your agent, and hence the responsibility was yours to inform him that the car leaked oil and to watch and see that it did not drop below the safe level.”

  “Just a minute, rabbi,” said Schwarz. “I didn’t have to warn him personally. The car has a built-in warning device—the oil light. When a man drives a car, he’s supposed to watch his instruments, and if he had, the red light would have told him he was getting dangerously low.”

  The rabbi nodded. “That is a good point. Mr. Reich?”

  “As a matter of fact, the light did go on,” he said. “But when it did we were on the open road without a station in sight, and before I could find one we’d stalled.”

  “I see,” said the rabbi.

  “But according to the mechanic, he should have smelled something burning long before,” Schwarz insisted.

  “Not if his nose was stuffed up with a bad cold. And Mrs. Weinbaum, you remember, was asleep.” The rabbi shook his head. “No, Mr. Schwarz, Mr. Reich did only what the average driver would have done under the existing road conditions. Therefore, he could not be considered negligent, and if not negligent, then not responsible.”

  The finality in his tone indicated that the hearing was over. Reich was the first to rise. “This has been a revelation to me, rabbi,” he said in a low voice. The rabbi acknowledged his thanks.

  Reich turned uncertainly to Schwarz, hoping he would make some gesture of reconciliation, but he remained seated, his eyes focused on the floor as he rubbed the palms of his hands together in vexation.

  Reich waited an awkward moment, then said, “Well, I’ll be going.” At the door he paused. “I didn’t see your car in the parking lot, Jacob. Can I give you a lift?”

  “Yes, I walked,” said Wasserman, “but I think I’d like a ride home.”

  “I’ll wait downstairs.”

  Only when the door closed did Schwarz raise his head. It was obvious he was hurt. “I guess I had the wrong idea of what this hearing was supposed to do, rabbi. Or maybe you had the wrong idea. I told you, or I tried to tell you, that I wasn’t planning to bring suit against Abe. After all, I could afford the repairs a lot better than he could. If he had come forward with an offer of some kind I would have refused it, but we would have remained friends. Instead, he was nasty to my wife, and a man has to back up his wife. I suppose she gave him the rough side of her tongue. And I can understand now why he reacted the way he did.”

  “Well then—”

  Schwarz shook his head. “You don’t understand, rabbi. I was hoping that this hearing would effect some kind of compromise, that it would sort of bring us together. Instead, you cleared him completely, which means that I must have been entirely in the wrong. But I don’t feel I was all wrong. After all, what did I do? A couple of
friends of mine wanted to get home in a hurry and I lent them my car. Was that wrong? It seems to me that you were not acting as an impartial judge, but more like his lawyer. All your questions and your arguments were directed towards me. I don’t have the legal training to see the flaw in your line of reasoning, but I’m sure that if I had counsel here to represent me, he would. In any case, I’m sure he would have been able to work out some sort of compromise.”

  “But we did even better than that,” said the rabbi.

  “How do you mean? You cleared him of negligence and I’m going to be several hundred dollars out of pocket.”

  The rabbi smiled. “I’m afraid that you do not grasp the full significance of the evidence, Mr. Schwarz. True, Mr. Reich was cleared of all negligence, but that doesn’t automatically make you culpable.”

  “I don’t get it.”

  “Let us consider what we have here. You bought a car with a leaking seal. And when you noticed the damage, you notified the manufacturer through his representative, Mr. Becker. Now, it is true that the fault was a minor one and that neither Mr. Becker nor you had reason to believe it might become more serious in the immediate future. The likelihood that it might become aggravated by a long trip evidently did not occur to him, else he would have warned you against it, in which case I’m sure you would not have used that car to go up to New Hampshire. But the fact is that driving for a long distance at a high rate of speed did result in expanding the leak, which is why you had to put in a couple of quarts of oil on the way up. Now, under these circumstances, the manufacturer can only require of you that you use normal caution. I think you will agree that Mr. Reich did nothing any cautious driver would not have—”

  “So it was really their fault, rabbi?” Schwarz’s face showed animation and there was excitement in his voice. “Is that what you’re saying?”

  Mr. Wasserman smiled broadly.

  “Precisely, Mr. Schwarz. It is my contention that it was the fault of the manufacturer and that he must make good under his warranty.”