Frolic of His Own

by William Gaddis

  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.’

  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 d
oes 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 IMPEACH pinned to its skirts before the flames consumed it, SPOT LIVES, GOD IS JUDGE, Stars and Bars, rocks and beer cans, US GOVT KEEP OUT and hands crowding forward unfurling the headline CALLS GOD CAT’S CHINBONE 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.