The Case of the Peeing Poodle
This matter arises upon plaintiff insurance company’s Complaint for Declaratory Judgment. It seeks determination of liability under its policy No. PPF-Mo 1-242411, issued to defendant January 29, 1956, for a term of 3 years and which policy contained an attached personal property rider. This rider, with a $25 deductible provision, insured certain listed property against loss or damage.
The defendant had made a claim against plaintiff for damage caused to carpeting and after plaintiff’s complaint was filed, he answered and filed a counterclaim in which he sought to recover $7,500 plus damages for vexatious delay and reasonable attorney’s fee.
The cause was tried before the Court, without a jury.
The law has always been a hard taskmaster and requires of its advocates a serious approach and stern-visaged application.
When it comes face to face with life, as it unfolds in the drama of the courtroom, the law sometimes reaches its serious, stern results from facts which have been compiled with humor.
So — while the end results of the law are deadly serious — there is about the lawyer (and even judges, occasionally) a spark of the humor of life — and a need for it.
So let it be with this opinion; for, while the end result is most serious to both plaintiff and defendant, what has brought about the necessity for the end result, is most humorous.
Our factual situation obviously had its inception when defendant obtained the insurance policy from plaintiff. If all had proceeded in the normal course of human events from that point on, this suit would never have been brought, for plaintiff insured against and was prepared for the usual expectancies of fire, wind and rain.
But, defendant purchased, and plaintiff issued, the rider, known commonly in the trade as a “floater”.
Now, “floater” provisions are covered by (and in this instance, rightly so) the rules of maritime law, for, the risks are sometimes unusual.
In any event, the policy in question provided generally for damages and loss to the furnishings and personal property of the defendant for reasons other than fire, wind and rain, to-wit, theft and other fortuitous circumstances.
What subsequently transpired after issuance brings into play the “floater” provisions of this policy. Defendant and wife purchased in October 1957 a “French Poodle“, which they appropriately and fascinatingly named André.
According to defendant, André was properly trained and broke and life was pleasant for the defendant and his wife and peaceful for the plaintiff until defendant and wife went on a vacation and left André at a kennel for the duration. When they returned their first thoughts were of André and they promptly brought him back to their chateau, blissful in the reunion.
But the home-like serenity was soon shattered, for madam soon spied André with his leg hoisted in masculine canine fashion and his purpose had been, and was being, accomplished. Madam did not testify, but defendant said she told him of the occurrence and he promptly surveyed the living room, dining room and hall and found signs of André’s misfeasance. His next step was to notify his insurance agent and make claim under the “floater” provisions of the policy.
There was some dispute between the parties as to whether proper notice was given and claim made, but the Court is convinced that defendant gave notice within the terms and provisions of the policy and plaintiff cannot escape liability on that point.
Plaintiff did send an adjuster to the premises to survey the effects of where André, the French Poodle, had popped in, piddled and popped out. In fact, he testified that André gave a “command performance” while he was there.
Also, a rug specialist was sent to the premises and he too made a survey. He found spots ranging in diameter from the size of a “dime” to nine inches, and in number from 75 to 80. He testified that one or two could have been repaired, but not that many, for it would have been impossible to match the yarn in the rug and the patches and repairs would have been as obvious as André’s tell-tale marks. He also said that the spots would have been readily noticeable from the time they dried and that they extended throughout the living room, dining room, hall, stairway and were on the rug, furniture and drapes; which gives rise to the conclusion that André had the run of the house.
The owner of the kennel, where André spent just two weeks, gave as his opinion that a dog with good habits would not lose them in two weeks; that he properly cared for the dog and had provisions for outside relief facilities for the dogs in his kennels; and, that four to five times a day would be a maximum amount of calls to nature for any dog, including André.
Plaintiff brought this declaratory judgment suit to determine its liability for threatened prosecution by the defendant and contended that this was just too many incidents to be liable for.
Defendant answered and denied, claiming surprise in André’s change of habits and further contended that there were but four or five incidents and the rest of the spots were pure dribbles, and he counterclaimed for total loss of carpeting and for damages in the amount of $7,500 therefor.
At the rate of four or five calls per day, at best it would have taken André about sixteen days to make all the spots. But, on the theory that each incident is entitled to a dribble or two, it could probably be said, without fear of contradiction, that the spotting represents ten to twelve incidents and probably over a period of a week. In that length of time if the spots had not been seen, they at least should have been recognized by other sensory perception.
A review of the search books to the law reveals no cases in point. Either there never was a poodle as prolific as André, or, before such insurance, people caught them, put their nose in it and threw them outside. Thus, we have a case of first impression.
The testimony is that André met his demise, by truck, some few weeks after his prolific, piddlin’ propensities were discovered and he, therefore, can never be made aware of his place in history unless he rests in some Valhalla from whence he can eat, sleep and answer his calls to nature, while still permitted to glance back occasionally to review the results, devastation, chaos and the indecision caused by his handiwork.
The unprecedented problem requires some decision, for the law, right or wrong, must conclude litigation. I would conclude this episode in the following manner:
For one or two occasions of André’s imprudence we might expect the plaintiff to be liable, even though it is stretching the credulity of any sage of the law to put permission and right upon liability where a person gives a canine pet the right to perambulate and pounce unrestrained throughout the house. Such privileges, even to a poodle, seem more the part of valor than of wisdom, especially where the playpen is a $7,500 rug and expensive furniture and drapes.
The law has always allowed each dog its first bite, for then the owner is put on notice of its dangerous tendencies. I would even go one or two better in incidents such as this and would have allowed recovery for two or three incidents. This would give the insured some opportunity, through sight or smell, to discover the occurrence, prevent its repetition and make claim for that which seems a fortuitous circumstance or event.
But, to allow for such prolific indiscretions, ad infinitum, is beyond credulity and borders onto wanton recklessness and disregard for which a person should not be rewarded. While André might not be expected to know the terms and conditions of plaintiff’s policy, it seems most fantastic that defendant should be able to contend that André’s indiscretion was fortuitous.
Judge Hand, in Mellon v. Federal Ins. Co. said: “Even in an all risk policy, there must be a fortuitous event—a casualty —to give rise to any liability for insurance.”
In the law, fortuitous means by chance and by accident. It seems to me that it is just by accident that André didn’t do what he did, much before the alleged occurrence, and, if by chance he didn’t, it was just too much, and too often, to require plaintiff to pay for it.
One cannot stand by and see damage being done, allow it to be done and then collect for the total loss. In other words, one cannot be present and see a fire when it first originates and at a time when something could be done to extinguish it, then go off and allow the damage to be done and attempt to collect for the total damage. Such conduct constitutes culpable negligence and precludes a recovery.
An insurer is not liable for reckless and inexcusable negligence. Neither is an insurer liable for losses resulting from inherent vice, defect, or infirmity in the subject matter insured.
Further, defendant had an obligation under ¶20 of the policy in question to safeguard the property insured thereunder. Under the terms of the policy defendant cannot recover where he discovered, or should have discovered, the damage long before it reached its final extent, in time thereafter to have safeguarded the property and have kept the damage to a minimum.
In the case at bar, defendant allowed and permitted the damage to become so extensive that he is now claiming a total loss, whereas, plaintiff, if liable at all, should have been exposed only to a minimal loss.
I would say that defendant, because of such gross negligence and indiscretion in permitting André to roam the house at will, hoisting his leg at random, probably yipping and yiping in his canine Utopia, should not be allowed to recover. Certainly, a dog can be controlled by his master, and while a master cannot expect perfection from a dog, even a poodle, he should be ever aware to keep him from expensive parts of the house where he might do damage with either end.
Further, defendant here should not be allowed to collect for a total loss which he himself could have kept at a minimum by the exercise of a little discretion, observance or care.
So, in the Eastern District of Missouri, while we love our dogs, let it be the law that we don’t collect for so many puddles made by poodles, even under the floater provisions of a policy with maritime law as precedent.
It is this Court’s conclusion that:
Judgment should be entered declaring that plaintiff is not liable under the terms and provisions of its policy of insurance for the damage caused to the carpeting in question under the circumstances proven and existing in this case.
Further, that defendant should not be allowed to recover upon his counterclaim against the plaintiff.
In other words, I am saying to the defendant, “You cannot recover”.
To the plaintiff, “You may continue your policy in peace”.
To the beloved little French poodle, the proximate cause of this litigation and discourse, I say, “Paix á toi aussi, André.”
This Memorandum Opinion shall be filed as the findings of fact and conclusions of the Court herein and judgment will be entered in accordance herewith.
~Justice Weber, Aetna Insurance v. Sachs, 186 F.Supp. 105 (U.S.D.C., E.D. Missouri 1960)
Opinion written in verse inspired by the holding of the case–that a juror could not be disqualified even though his wife was a cousin of both the plaintiff’s and defendant’s wives.
‘Foul, foul play,’ the defendant cried.
‘That I by kinsman be not trammeled
Let the issue again be tried
Before another jury impaneled.
Remember how from John at Runnymede
The Charta was forced and wrested
That no matter what the issue or the deed
By my peers it must be tried and tested.
With juror mine adversary durst
Try the cause, whose wife is second cousin to my wife
And to plaintiff’s wife a first.
A new trial, sire, I demand to settle strife.’
‘No foul play do I find or see,’
The judge replied. ‘Foreman’s wife to thine
And to plaintiff’s wife may kinsman be,
But to Doug and thee no kinship do I find.
Thus, it doth not appear
For any cause or reason told
That the juror was not thy peer
The case to try and verdict mold.
Moreover, when kinships we sought to learn
It doth not appear that as best befits
One who would a kinsman spurn
Thou revealed that cousin did on the panel sit.
Thy day in court thou hast had,’
The judge asserted, ‘and law commands
That, no error made, whether good or bad,
The issue tried and settled stands.’
~Fisher v. Lowe, 333 N.W.2d 67 (Mich. Ct. App. 1983)
Judge: I know you, don’t I?
Defendant: Uh, yes.
Judge: All right, tell me, how do I know you?
Defendant: Judge, do I have to tell you?
Judge: Of course, you might be obstructing justice not to tell me.
Defendant: Okay. I was your bookie.
From a defendant representing himself:
Defendant: Did you get a good look at me when I stole your purse?
Victim: Yes, I saw you clearly. You are the one who stole my purse.
Defendant: I should have shot you while I had the chance.
Judge: The charge here is theft of frozen chickens. Are you the defendant?
Defendant: No, sir, I’m the guy who stole the chickens.
— Fábio Medeiros (@siriarah) November 5, 2016
Researchers have discovered that chocolate produces some of the same reactions in the brain as marijuana. The researchers also discovered other similarities between the two but can’t remember what they are.
~Matt Lauer, on NBC’s Today show
If it weren’t for electricity we’d all be watching television by candlelight.
Ketchup left overnight on dinner plates has a longer half-life than radioactive waste.
When you’ve got them by their wallets, their hearts and minds will follow.
If inflation continues to soar, you’re going to have to work like a dog just to live like one.
~George Gobel. George Leslie Gobel (1919–1991) was an American comedian and actor. He was best known as the star of his own weekly NBC television show, The George Gobel Show, which ran from 1954 to 1960 (the last season on CBS, alternating with The Jack Benny Program).
I once met an economist who believed that everything was fungible for money, so I suggested he enclose himself in a large bell-jar with as much money as he wanted and see how long he lasted.
~Amory Lovins. Amory Bloch Lovins (born 1947) is an American physicist, environmental scientist, writer, and Chairman/Chief Scientist of the Rocky Mountain Institute. He has worked in the field of energy policy and related areas for four decades. Harvard University-educated, he was named in 2009 by Time magazine one of the World’s 100 most influential people.
As long as algebra is taught in school, there will be prayer in school.
Perfect numbers, like perfect men, are very rare.
Since the mathematicians have invaded the theory of relativity, I do not understand it myself anymore.
In Mackensworth v. American Trading Transportation Co., 367 F. Supp. 373 (E.D. Pa. 1973 ), District Judge Becker wrote his opinion in verse as follows:
The motion now before us
has stirred up a terrible fuss.
And what is considerably worse,
it has spawned some preposterous doggerel verse.
The plaintiff, a man of the sea,
after paying his lawyer a fee,
filed a complaint of several pages
to recover statutory wages.
The pleaded facts remind us of a tale that is endless.
A seaman whom for centuries the law has called “friendless”
is discharged from the ship before voyage’s end
and sues for lost wages, his finances to mend.
The defendant shipping company’s office is based in New York City,
and to get right down to the nitty gritty,
it has been brought to this Court by long arm service,
which has made it extremely nervous.
Long arm service is a procedural tool
founded upon a “doing business” rule.
But defendant has no office here, and says it has no mania
to do any business in Pennsylvania.
Plaintiff found defendant had a ship here in June ‘72,
but defendant says that ship’s business is through.
Asserting that process is amiss,
it has filed a motion to dismiss.
Plaintiff’s counsel, whose name is Harry Lore,
read defendant’s brief and found it a bore.
Instead of a reply brief, he acted pretty quick
and responded with a clever limerick:
“Admiralty process is hoary
With pleadings that tell a sad story
Of Libels in Rem—
[367 F.Supp. 375]
The bane of sea-faring men
The moral: Better personally served than be sorry.”
Not to be outdone, the defense took the time
to reply with their own clever rhyme.
The defense counsel team of Mahoney, Roberts, & Smith
drafted a poem cutting right to the pith:
“Admiralty lawyers like Harry
Both current and those known from lore
Be they straight types, mixed or fairy
Must learn how to sidestep our bore.
For Smith, not known for his mirth
With his knife out for Mackensworth
With Writs, papers or Motions to Quash
Knows that dear Harry’s position don’t wash.”
Overwhelmed by this outburst of pure creativity,
we determined to show an equal proclivity.
Hence this opinion in the form of verse,
even if not of the calibre of Saint-John Perse.
The first question is whether, under the facts,
defendant has done business here to come under Pennsylvania’s long arm acts.
If we find that it has, we must reach question two,
whether that act so applied is constitutional under
Washington v. International Shoe.
Defendant runs a ship known as the SS Washington Trader,
whose travels plaintiff tracked as GM is said to have followed Nader.
He found that in June ‘72 that ship rested its
keel and took on a load of cargo here which was
quite a big business deal.
In order for extraterritorial jurisdiction to obtain,
it is enough that defendant do a single act in Pa. for pecuniary gain.
And we hold that the recent visit of defendant’s ship to Philadelphia’s port
is doing business enough to bring it before this Court.
We note, however, that the amended act’s grammar
is enough to make any thoughtful lawyer stammer.
The particular problem which deserves mention
is whether a single act done for pecuniary gain also requires a future intention.
As our holding suggests, we believe the answer is no,
and feel that is how the Pa. appellate cases will go.
Further, concerning § (a)(3)’s “shipping of merchandise”
[367 F.Supp. 376]
the future intention doctrine has already had its demise.
We do not yet rest our inquiry, for as is a judge’s bent,
we must look to see if there is precedent.
And we found one written in ‘68 by three big wheels
on the Third Circuit Court of Appeals.
The case, a longshoreman’s personal injury suit,
is Kane v. USSR,
and it controls the case at bar.
It’s a case with which defendants had not reckoned,
and may be found at page 131 of 394 F.2d.
In Kane, a ship came but once to pick up stores
and hired as agents to do its chores
a firm of local stevedores.
Since the Court upheld service on the agents, the case is nearly on all fours,
and to defendant’s statutory argument Kane closes the doors.
Despite defendant’s claim that plaintiff’s process is silly,
there have been three other seamen’s actions against defendant, with service in Philly.
And although they might have tried to get the service corrected,
the fact of the matter is they’ve never objected.
We turn then to the constitutional point,
and lest the issue come out of joint,
it is important that one thought be first appended:
the reason the long arm statute was amended.
The amendment’s purpose was to eliminate guess
and to extend long arm service to the full reach of due process.
And so we now must look to the facts
to see if due process is met by sufficient “minimum contacts.”
The visit of defendant’s ship is not yet very old,
and so we feel constrained to hold
that under traditional notions of substantial justice and fair play,
defendant’s constitutional argument does not carry the day.
This Opinion has now reached its final border,
and the time has come to enter an Order,
which, in a sense, is its ultimate crux,
but alas, plaintiff claims under a thousand bucks.
So, while trial counsel are doubtless in fine fettle,
with many fine fish in their trial kettle,
we urge them not to test their mettle,
[367 F.Supp. 377]
because, for the small sum involved,
it makes more sense to settle.
In view of the foregoing Opinion, at this time
we enter the following Order, also in rhyme.
ORDER Finding that service of process is bona fide,
the motion to dismiss is hereby denied.
So that this case can now get about its ways,
defendant shall file an answer within 21 days.
(Footnotes and headnotes are also in verse.)
Necessity knows no law; I know some attorneys of the same.
There are laws to protect the freedom of the press’s speech, but none that are worth anything to protect the people from the press.
~Mark Twain (1835–1910), American humorist, writer and lecturer
Part of the $10 million I spent on gambling, part on booze and part on women. The rest I spent foolishly.
~George Raft (born George Ranft; 1901 – 1980), American film actor and dancer identified with portrayals of gangsters in crime melodramas (mob films) of the 1930s and 1940s. A stylish leading man in dozens of movies, today George Raft is mostly known for his gangster roles in Billy Wilder‘s 1959 comedy Some Like it Hot, the original Scarface (1932), and Each Dawn I Die (1939), and as a dancer in Bolero (1934) and a truck driver in They Drive by Night (1940). Raft’s real-life association with the New York mob gave his on-screen image an added realism.
The waste of money cures itself, for soon there is no more to waste.
Money is like love; it kills slowly and painfully the one who withholds it, and enlivens the other who turns it on his fellow man.
I’m so poor I can’t even pay attention.
~Ronald Dale (Ron) Kittle (born 1958), former left fielder and designated hitter in Major League Baseball who was known mostly for his home run power, being named the 1983 American League Rookie of the Year