Frolic of His Own

by William Gaddis

  —A Mister Preswig yes, I have a communication from him here but I believe he’s no longer in the picture? digging into the portfolio and bringing forth papers —we understand that he has found employment elsewhere and in the interests of expediency I thought if I simply dropped in on you we could work things out together without all the bother and expense of further legal proceedings which seem calculated to merely muddy the waters as they say and to save you the costly annoyance of going to trial?

  —Well yes by all means, I . . .

  —By all means yes, yes we are in agreement then aren’t we, after all our friendship goes all the way back to my hospital visit before these lawyers came between us simply to line their own pockets as they say? or as we say I should say, which is to say you could hardly be blamed for disclaiming the generous No Fault provision of your coverage which had come into being for the protection of persons like yourself over the vigorous opposition of the powerful lobby of trial lawyers like the one who took your case originally.

  —Well he ought to be shot yes, he . . .

  —I’m afraid that would only introduce new complications not included under your coverage, now to return to the matter at hand. When he filed to have you disclaim your No Fault coverage we had no recourse but to claim immunity as insurers of the car’s owner and you are now seeking to recover under your coverage as the accident victim?

  —More or less, yes.

  —Yes. This motion filed on your behalf seeks to ensure that the controversy will take place in an adversary context since the court would lack jurisdiction to render judgment without adversary parties appearing before it whether, I have a few notes here from our legal department may I refer to them? bringing forth a sheaf of papers, licking a thumb —whether natural or artificial persons yes, you as plaintiff claiming bodily injuries being recognized as a natural person.

  —Well what else would . . .

  —Of course yes, as a party named in the record they’ve apparently listed them here under several categories, necessary parties, formal parties, indispensable parties, proper parties, indispensable parties being of course necessary parties who must take part in an action either as defendants or plaintiffs and indispensable parties those who must be included in an action in order for it to proceed, both of them signifying parties who should be joined in a proceeding though there has been some disagreement over the degree of such obligation expressed by the word should.

  —Mister Gribble, I think . . .

  —I agree yes, words always cause such problems don’t they when it becomes less a matter of their actual meaning than their interpretation, take the word should here, I use it quite frequently myself without thinking twice about the . . .

  —Mister Gribble listen! I’m quite busy, can’t we cut through all this talk about parties and come to the point?

  —But that’s why I’ve come all the way out here to see you Mister Crease, I had a terrible time finding the place but we want to be certain of protecting your legal rights before you sign anything in your pursuit of justice, I believe you used that phrase yourself the last time we . . .

  —Before signing what.

  —Yes we’ll come to that, but first may we clear up this matter of one person as both plaintiff and defendant in the same action? licking his thumb again, flurrying pages —suing in one capacity and defending in the other which creates certain problems, if you follow me.

  —But I’m the victim, you just said that yourself didn’t you? that I’m suing as the victim?

  —Of course, yes, which means you need to find the defendant guilty of negligence as the proximate cause of your injuries, but that is to say even once negligence is established, since the scope of the defendant’s liability can be no greater than the duty of care he owes to the plaintiff, he has not breached his duty if he has no duty and therefore he has no liability, and so in this case I suppose you would take the position that you owe a duty of care to yourself?

  —Well obviously, that’s what the whole . . .

  —Do you happen to serve in the capacity of a public officer anywhere Mister Crease? licking his thumb again, turning pages.

  —As what? Good God no, why.

  —Because apparently the rule is confined to natural persons and as an individual you could join in a suit against yourself as a public officer, because this is where things get somewhat complicated. As they say here, whether an action is in contract or in tort, you see what I mean, the rule that one person cannot take the position of both plaintiff and defendant will not apply so long as the case does not add up to one party against himself. To put it in plain language you might almost say that this is a suit between who you are and who you think you are, the question being which one is the plaintiff and which one is the defen . . .

  —Well I, here where are my glasses, give me that! and he seized the fluttering pages. —Do you know Montaigne?

  —I’m afraid not no, is he someone you . . .

  —Where he says it’s a hard task to be always the same man? flipping a page over —there is as much difference between us and ourselves as there is between us and other people, they’re practically quoting Montaigne right here aren’t they? Since the presumption is in favour of the judgment, even though the plaintiff and defendant bear the same name it is presumed they are different persons?

  —I see your point Mister Crease, but bringing in your friend as a third party can only complicate things further unless, of course, he might join the suit as a formal party in establishing negligence as the proximate cause of your . . .

  —Of whose negligence, that’s what this is all about isn’t it? I’m the victim aren’t I?

  —Yes yes of course, but I think you’ll see something in there about contributory negligence that needs clearing up? When the plaintiff’s injuries are equally likely to have been caused by his own improper conduct and standing in front of the vehicle Mister Crease, by standing directly in front of the vehicle with the hood raised restricting your vision when you tampered with the wiring in order to start it might be considered improp . . .

  —No wait, wait a minute, I don’t like the word tampered there Mister Gribble. I was simply wait here it is, contributory negligence is never a defense to strict liability but often the opposite is held? They’ll have it both ways won’t they, if it can be shown that the user was proceeding against a known unreasonable danger I was simply trying to start the damn car wasn’t I? or this? in making no use of the product except to be injured by it do you think I’m mad?

  —I think no, no I don’t think we should take that course Mister Crease I don’t think it’s included in your coverage and . . .

  —All right listen, here it is listen, that a damage-feasant motor vehicle may be joined as a party in an action against the driver of the vehicle.

  —But I understand there was no driver?

  —I was the driver I simply wasn’t driving, how could I drive it without starting it.

  —I see your point yes but, yes we probably should have a lawyer here to help us with these finer distinct . . .

  —We don’t need one, you just said that yourself didn’t you? It’s all here look, even the citation Brown v. Quinn 220 S.C. 426, 68 SE.2d 326 and the damage-feasant motor vehicle, it’s standing right outside there didn’t you see it?

  —I did yes, yes but suing the car would not be exactly the . . .

  —We’re not suing the car! We’re joining the damn thing as a party in the action a necessary indispensable formal proper artificial person do you want some coffee or something? tea? Lily, are you out there?

  —No, no thank you I know how busy you are, I haven’t wanted to take so much of your valuable time Mister Crease but it seemed only fair to you to review the range of legal complications you might confront in a long drawn out expensive lawsuit which we wish to help you avoid, and of course under the circumstances the possibility cannot be ruled out that your suit as the victim might not prevail as a party who should be joined in a, there’
s that word should again, would you mind giving me back those papers?

  —And would you mind, Mister Gribble, first would you mind simply telling me what it is you want me to sign?

  —Why I, yes of course I have it right here somewhere it’s just a release that will save us all a good deal of . . .

  —Is that all?

  —The release yes, yes and then there’s an affidavit in connection with your . . .

  —And listen, what about that summons I got as a witness with companies all over the globe and some kind of postponement that . . .

  —That’s exactly what I was coming to yes, yes rather than put you through the grueling cross examinations such a trial would subject you to this simple affidavit will relieve you of any further obligations and we can put the whole matter behind us, here we are. It simply states that you were injured by the product, which is to say the damage-feasant motor vehicle in this case, that your injury came about because the product was defective and that its defects existed when it left the hands of the defendant.

  —What defendant. Oh Lily, will you bring me something? just a glass of wine or something?

  —I hadn’t wanted to take more of your valuable time getting into all these details Mister Crease but you see you are only a part of the bigger picture which threatens to get out of control and may go on for years involving a whole series of defendants. When your second attorney Mister Preswig filed your motion as the victim against the car’s owner this in turn brought Ace Worldwide Fidelity in as his or your insurer where it might possibly have ended.

  —Well why didn’t it!

  —Because liability attaches to anyone who sells the product going back to its manufacturer including the makers of parts supplied by others since it is marketed under the manufacturer’s name, if you follow me? Our legal department sought out the person you bought it from who had joined the Navy and so proceeded against the dealer from whom he’d purchased it new and the dealer then sued the wholesaler who has brought suit against the manufacturer who in turn is suing the assembler of the defective component parts whose makers are as you observed in your summons as a witness in the suit being brought against them by the assembler all over the globe as you put it, however. As you were notified that trial has been postponed since these component parts makers abroad turn out to be largely subsidiaries or joint ventures with American companies which must all be sorted out before matters can proceed to the Supreme Court where it all appears to be headed.

  —Good God! he sank back with the glass in his free hand, —did you hear all that Lily?

  —I heard enough.

  —Wait sit down, listen. The whole thing sounds like a, it sounds like the house that Jack built. Will you tell me why you’ve dragged me through this whole insane rigmarole of indispensable parties and artificial persons and now this global car chase you refer to as the big picture?

  —Yes yes of course Mister Crease. I thought it would be useful to review the wide range of complex issues and prolonged expensive procedures which would no doubt prove exhausting in your weakened condition resulting from your little adventure which will be lifted from your shoulders when you sign these papers and can go on to your important work with this entire matter behind you, going to sleep at night with the added satisfaction you might say of putting bread on many tables for years to come, I have a pen right here and . . .

  —Wait what in the hell are you talking about, putting bread on many tables.

  —Just joking yes, yes a figure of speech as they say, I meant the legal profession of course, lawyers all over the land and abroad, pita bread, bagels, baguettes you may even see some children put through college if the . . .

  —No wait a second Oscar, I mean what about our table Mister Dribble.

  —Please.

  —What about all these doctor bills and the hospital and even just that chair over there he had to ride around in.

  —Yes, yes but I believe you both understand that Ace Worldwide has already gone to considerable expense and faces still further financial sacrifice in our efforts to relieve Mister Crease of the intolerable burdens I have just gone to all this trouble to outline for you which can all be dismissed with a stroke of the pen yes, yes I have one right here, sign there at the bottom and your daughter as witness under the . . .

  —She is not my daughter! and will you stop this yes yes every time you speak?

  —Yes oh, I’m sorry yes it’s just habit, when I joined Worldwide we were given this fine Dale Carnegie course free, I’m sure being a scholar that you’re familiar with his work? when he speaks of using the approach perfected by the ancient Greek philosopher Socarides in getting the yes yes response from his . . .

  —God. Listen, why me Mister Gribble, will you tell me?

  —But you started the whole thing after all Mister Crease, the rest of us are just out here picking up the . . .

  —What if he doesn’t sign this stuff.

  —Yes as I say, we would just have to let things make their difficult way through the courts and I must caution you the other parties, especially the manufacturer have very deep pockets.

  —So do you Mister Dribble, so what about these doctor bills and all.

  —I’ll be glad to discuss it with my office when I take the signed release and affidavit back in yes, yes I think it quite likely they’ll be willing to make some sort of voluntary contribution toward . . .

  —You can discuss it right here. I mean I’m not talking about some voluntary contribution I’m talking about the doctor bills and the hospital and the therapist and his lost income, what about his lost income, I’m talking about the whole thing and that chair over there too or all you’ll take back to your office is your hat and your ass.

  —I ah, yes I don’t think I had a hat did I? bent over the plastic portfolio on his lap —now that you speak of it yes, yes in fact I may happen to have brought along something that, what we call a letter of agreement you might say deals with these contingencies if you insist on having it all down in black and . . .

  —That’s what I’m doing aren’t I? Here Oscar, read it.

  —Though in the atmosphere of trust we generally enjoy with our clients it hardly seems necessar . . .

  —You reading it Oscar?

  —Yes but, wait where it says here agree to satisfy obligations for fully verified medical and custodial care of a general nature directly resulting from . . .

  —No wait a second, put in all. Put in all obligations, take out that crap about of a general nature and put in all medical care and wait a second, put in dental, put in . . .

  —Well I hardly think . . .

  —You think you’re going to get run over like that without practically getting your teeth knocked out? I mean you hear the way he’s talking?

  —Yes I, yes but I thought it might be the wine, he . . .

  —You want him to sign this stuff or not. And wait a second, what about his loss of earnings in there.

  —I believe the ah, I believe the formula is eighty percent up to one thousand dollars monthly but oh, just a moment I brought along a camera somewhere to record the, to satisfy our examiners with evidence of what was described in the claim as permanent significant disfigurement marring the natural expression so as to attract attention referring as I recall to a facial scar which, would you mind turning your face this way Mister Crease? I’m afraid I don’t detect any trace of . . .

  —How do you know what his natural expression looks like, you want us to sign this stuff? Just put in there a thousand dollars monthly, go ahead and sign it Oscar.

  —It seems somewhat irregular but . . .

  —And you too, you sign it we all sign it what about copies.

  —Copies?

  —I said copies didn’t I? so everybody gets a copy? in a flurry of pen and papers until they sank back for a moment leveling their stares, hers at the collapse on the sofa, his at the floor and the third of them down her blouse until she stood pulling it close.

  —Yes I
should, I mean I’d better be off yes, it’s been a pleasure meeting you both with the opportunity to serve you in the best traditions of Ace Worldwide where our clients always, I didn’t bring a hat did I?

  —Wait a second.

  —But, no but please I think we’ve cleared everything up haven’t we? jamming the papers he’d retrieved back where they’d come from, —the claims are pouring in from that holocaust on the highway near the airport and I’m far behind schedule, you have my phone num . . .

  —It’s just this one question, where my brother got killed in this car crash?

  —Oh I, I see and, and he was a client of ours too?

  —No it’s just this question, he got killed in this car my daddy gave him the money to buy it with so then when tragedy strikes there’s this religious reverend that steps right in there calling it the death instrument and he talks Daddy into giving all this insurance money from Bobbie to the Lord to cleanse it to make sure him and Mama will get to join Bobbie on the other side when they get there too where it should be mine right here on this side where I need it, I mean I’m his daughter aren’t I?

  —I see yes, but of course it’s your daddy’s prerogative to leave his money as he sees fit, that is to say if you were his wife you would be entitled to one third, in some states even half but . . .

  —How could I be his wife, he’s already got Mama doesn’t he? So I want to sue him.

  —But I don’t think that would succeed is what I meant to say, unless you could have him declared incompetent, it’s not at all uncommon for children to be cut out of their parents’ wills and of course his will wouldn’t even take effect until he’d passed on because he . . .

  —I don’t mean sue Daddy I mean suing this reverend! Daddy’s going in for this big operation and if the Lord calls him right in the middle of it then what. If he shows up over there and can’t join Bobbie or maybe can’t even find him in the crowd then what.

  —I think what she’s talking about is something in the line of a malpractice suit Mister Gribble.

  —But, I see. Might I suggest another approach? his voice abruptly taking a softer, almost intimate tone —if I may take a few more moments of your valuable time? as he sat down again peeling open a separate pocket of the portfolio on his lap. —Of course your feelings are quite understandable, but have you considered weighing them against the spiritual comfort you might enjoy by yielding these funds to the Lord’s service in an unselfish gesture of love for your departed brother?