—How! I’ve got my own doctors’ bills to pay haven’t I? He’d snapped off the sound as the screen abruptly confronted them with a lively fellow fleeing the torments of diarrhea at what appeared to be an international airport, —after the mess you and that lawyer you brought me made of things? He ought to be shot.
—That’s why I came, Oscar.
—You’ve done enough haven’t you? Will you just come right out with it? without all this, all these maudlin theatrics, just come right out and tell me what you want?
—Revenge.
—For what, against who, what . . .
—Him.
—A little late for that isn’t it? He’s already got me into this mess, and then he sends a bill for seven . . .
—Not for you, for me, what he’s done to me.
—We know what he’s done to you don’t we? in the front seat, the back seat and every bed from here to Disney World, that’s all he’s good for isn’t it?
—With my girlfriend.
—What girlfriend, what . . .
—He’s been screwing my girlfriend! That’s what. My girlfriend from the phone company where we worked together on long lines, she needed this divorce so I sent her to him and they did it the second time she went there, right on his desk, she said he just pushed all these papers away and fucked her right up there on his desk and they’re doing it now someplace, I bet they’re doing it someplace right now.
—She told you this?
—After I got my hair cut and shaped like this because he wanted me to that makes me look like some scarecrow?
—Take him before a grievance committee, that’s what I . . .
—Are you crazy? because it’s just all these other lawyers, didn’t he tell us that himself? when we wanted to do that with that sleazeball woman lawyer he took my divorce away from that we had to pay off and now she’s this judge? Because they’re all these other lawyers that are screwing their clients so they’re scared if they give him a hard time they’re going to be next, no. I mean revenge. I mean like in the movies, you’re always writing these plays where you have to think up these characters and plots and everything and here’s this real sleazeball character you have to start right off with, it would make some movie. You ought to see my girlfriend, she’s really built and she’s got all this red hair you ought to see her. Are you hungry? We could watch television while we eat and maybe you’ll think of something.
And so over Pinot Grigio and cold salmon with mayonnaise and a boiled potato they watched Errol Flynn in The Charge of the Light Brigade. —Do you have to go? over that sodden icecream cake.
—I have to get this car back where I borrowed it.
—Where, from who.
—My girlfriend at long lines.
When the telephone rang later that night he let it ring, drawn up tight with one knee clenched against him as though cringing from some featureless dread there under the cover where he had a terrible dream which he could not remember, transfixed over coffee and the morning’s headlines, or even on the mornings after that, vaguely following the course of jury selection and the trial in U.S. District Court, Southern District of Virginia, kept alive in the press pandering to Senator Bilk’s electioneering appetite for attacks by the liberal northern media on his perennial states’ rights stance against Federal interference in general and his vow to his constituents to employ every measure at his command to prevent the elevation of Judge Crease to the U.S. Circuit Court of Appeals in particular; by the homespun support of his veteran colleague from Iowa’s Twenty Fourth Congressional District sponsoring a bill to restore the arts to their pristine decorative function; and finally by fleeting interviews with the artist himself, just now busied elsewhere defending a suit alleging wrongful death in the collapse of another of his creations in securing the delicate balance of its three ton steel appendages, denying any intention of meaning to be construed in his sculptural works beyond the raw arrangement of their actual materials in which any meaning, if there were such, resided in this very meaninglessness hence the vacuous site specificity of Cyclone Seven being embraced, even then, in testimony before the jury by expert witnesses called at appropriate expense on his behalf and in the farflung vapourings of art critics in the press confronting ‘the challenge to decipher its iconography in its forceful maneuverings of space by steel beams bending, leaning, reclining and thrusting themselves forward, light as plumes of a gigantic bird curving around us with gentle solicitude in the sculptor’s wish to appeal to all people in sympathy with their lives and needs in the energizing myth of participatory democracy characteristic of American postwar art to fit in everywhere yet stand defiantly alone in its solitary monumentality, restless and dominating, even menacing in its threat of instability finding few echoes in the surrounding architecture, dwarfing the people with an intimidating authority but also a sense of informality and fun, toying with our anxieties of inclusion and exclusion in experiencing the full immensity and vertigo of space, tapping the explosive feelings trapped within its sense of emotional and physical accessibility, its suggestions of Christian sacrifices and suffering . . . ’
—That’s enough! Giant bird plumes, my God.
—The confusion of tongues was the way Harry put it, simply another language, art theory referring only to itself ‘stripping the forms of art to the bone, shaking off the emotional excesses of abstract expressionism’ reducing art itself to theory with no more substance than that swarm of flies the Judge stepped on in his Szyrk opinion while Szyrk himself is out there somewhere right now hearing it exalted in terms of death and transfiguration, of the sacred seizing the profane in an embrace seething with sexual ferment saying it all ‘makes him puke’ with these ‘hints of Christian sacrifice and suffering, its suggestions of journeys without end as the sculptor seems to turn away, smitten to the point where its beams buckle in shyness yet remain as firm and vigilant as a dog who has cornered his prey’ —to coin a phrase, as Christina broke off with the front page picture of the thing itself, towering over the new dining area at Mel’s Kandy Kitchen like the one at Babel rising toward heaven till the Old Testament Sculptor up there was smitten to the point of sending down a confusion of tongues so that nobody knew what anyone else was talking about where the judge below explicated the Village defense resting on an act of God in his charge to the jury while assorted Baptists sang Amazing Grace and the high school band played America the Beautiful and Tubby the Tuba on the courthouse steps as policemen ticketed cars with out of state plates and one of them smashed the camera of a newsman from the liberal northern press out to make trouble playing up the race angle on the piebald jury’s black and a few poor white faces from the Possum Hollow end of town where long smouldering resentment over lacking streetlights, neglected garbage collection, road repair and ruptured sewer lines threatened to surface in a verdict against the Village already crippled by its foreign foulmouthed red atheist cross-claimant under the local headline STRANGE BEDFELLOWS IN CYCLONE SEVEN CASE and a vexatious God strangling in the bedclothes, the pied jury as finders of fact decided parti pris for plaintiff little James B with a judgment for damages, —talk about stepping on a swarm of flies said Harry, here was Judge Crease himself reported as saying some of these jurors had lied during jury selection when they declared they could hear the case objectively, reading what they told the newspapers after the trial their minds were made up before they walked into the courtroom, —all God fearing men and look, that reminds me. Your friend Trish.
—What in God’s name has Trish got to do with it.
—That nice looking young man who threw catsup on her chinchilla coat, he . . .
—It wasn’t the chinchilla Harry, it was an old sable, I was with her wasn’t I?
—At any rate, the . . .
—She only took the chinchilla because she thought her mother was going to give it to Mary, this old housekeeper companion Mary who’s causing such a problem with the will. It’s worth thousands.
—At any rate . . .
—She never wears it.
—So she poured catsup on it to bring into court suing this poor guy for assault and the price of a chinchilla coat?
—What if she did! This poor guy, the insurance company pays for it what do you mean, this poor guy.
—He’s in there claiming the court lacks jurisdiction, says he was acting under the guidance of a higher authority that’s what reminded me of it, God in the courtroom like that Cyclone Seven jury down there, look. Just tell her to pay her retainer will you? You retain a firm like Swyne & Dour you pay their retainer. It’s putting me in a hell of a spot.
—I thought they were delighted. You bring in a client with deep pockets, isn’t that what you told me? that that’s how you get made a senior partner?
—I didn’t know a damn thing about it Christina! She gets in there and corners a senior partner about breaking her mother’s will, waltzes right into Bill Peyton’s office using my name when I was away I didn’t know anything about it till he stopped me in the hall to congratulate me. She’s already got them handling her pretrial hearing on this assault case, even had the firm representing her in small claims court over a hundred seventy two dollars she owes some shoe repair place. Swyne & Dour in small claims court? Our billing will run her three or four times that, they sent Mudpye down there to keep her happy and she still hasn’t put up a dime, that snappy dresser who handled Oscar’s deposition with Basie, will you . . .
—Yes and where is he Harry. Mister Basie, where is he. Oscar’s been in a frenzy trying to reach him.
—Basie? He’s, I don’t know he’s, how would I know, nothing he can do now anyhow but wait for . . .
—No it’s something Oscar saw on television, I couldn’t make out what it was all about on the phone he was in such a state, he just kept saying he thinks something’s terribly wrong. That black actor who played the house slave in the movie, Button somebody? He says he’s got to talk to Basie, he can’t even reach Sam, your friend Sam, they don’t return his calls and he’s in a state anyway over his accident case with Lily back in the picture, God knows where she’s been. That seventy five hundred dollar bill from that ambulance chaser she found for him filed court papers that have him suing himself, he can’t even . . .
—Look he can’t sue himself, can’t be plaintiff and defendant in the same suit. He said he had some new lawyers on it didn’t he?
—And do you know where he got them? He got them off a matchbook cover, he finally blurted it out, specialists in negligence and personal injury because they offered a free telephone consultation now he’s up to his neck with them pressing him for a retainer like Trish, like you’re pressing Trish for some miserable payment for . . .
—Look Christina you don’t get Swyne & Dour off a matchbook cover! We don’t even bother to litigate anything under a million, three quarters of a million, you retain Swyne & Dour you pay them a retainer nothing miserable about it either, probably asking her twenty five, fifty thousand it’s putting me in a hell of a spot.
—If you’re just trying to protect yourself Harry, I . . .
—Not protecting myself I’m protecting the firm! What do you want me to do, walk into Bill Peyton’s office and tell him she’s a . . .
—Well my God I mean can’t they look out for themselves? They’ve been around haven’t they? They’ve heard of her, haven’t they? All over the papers with her diamond jubilees and that front page robbery?
—Of course they’ve heard of her, that she’s litigious and difficult that’s why they’re giving me these gentle hints about this retainer because they think I brought her in and she wants the firm to handle that too, that insurance settlement she got on those diamonds they bought back for her? What do you want me to do, tell Bill Peyton she’s a friend of my wife’s who thinks everybody from the shoe repair man to her mother’s old housekeeper and the Catholic Church are out to get her? and this cousin, some cousin who’s suing her over some diamond bracelets?
—And you don’t think these Catholics are out to get her? This Father God knows what his name is, some unpronounceable Pole they put on her mother’s case he’d come over and ring around the rosary with the old crone in that dark cavernous drawing room every afternoon till she put them in this will of hers for enough money to cover sixty years of masses for the repose of what she called her soul?
—It will take sixty years from what I’ve heard of her, but . . .
—And these diamond bracelets Harry, that was just a question of language. There were two pairs of bracelets, one was described in the will as a matching pair of diamond bracelets and the other a pair of bracelets of matched diamonds and the cousin, she’s fifteen she’s only a child and so . . .
—And so your friend Trish walked off with the matched diamonds worth a hundred times the two matched bracelets the poor girl ended up with?
—She’s only got two arms hasn’t she? She, I mean she was perfectly happy with them, wanted to wear them out playing field hockey till her father made a scene over the wording, he’s a basketball coach so you can imagine, it was only the wording, it was only a question of language.
—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.
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