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April 26: Humor (Law and Lawyers) “The Case of the Peeing Poodle”

April 26

Humor

 

317.

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.

 

André peeing

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)

 

318.

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)

March 10: Humor

March 10
Humor

191.

The perfect computer has been developed. You just feed in your problems and they never come out again.

~Al Goodman

 

192.

The most overlooked advantage of owning a computer is that if they foul up there’s no law against whacking them around a bit.

~Eric Porterfield

 

193.

Programming today is a race between software engineers striving to build bigger and better idiot-proof programs, and the Universe trying to produce bigger and better idiots. So far, the Universe is winning.

~Rich Cook

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March 10: Humor (Law and Lawyers)

March 10
Humor  

 

191.

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.

 

192.

              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.

193.

Judge: The charge here is theft of frozen chickens. Are you the defendant?

Defendant: No, sir, I’m the guy who stole the chickens.

 

 

March 8: Humor (Law and Lawyers)

March 8
Humor  

 

186.

An opinion was written with lines from the movie “Wayne’s World” and holding that defendant’s “most bogus” attempt at removal is “not worthy” and “way improvident,” and arguing that the defendant must “party on” in state court. Sections of the opinion are labeled “Hurling Chunks” and “A Schwing and a Miss.”

~Noble v. Bradford Marine, Inc., 789 F. Supp. 395 (S.D. Fla. 1992)

 

187.

Amicable Settlement.

ORDER

The herein matter having been scheduled for a trial by jury commencing July 13, 2011, and numerous pre-trial motions having yet to be decided and remaining under submission;

And the parties having informed the Court that the herein matter has been settled amicably (the Court uses the word amicably loosely) and that there is no need for a Court ruling on the remaining motions and also that there is no need for a trial;

And such news of an amicable settlement having made this Court happier than a tick on a fat dog because it is otherwise busier than a one-legged cat in a sand box and, quite frankly, would have rather jumped naked off of a twelve foot step ladder into a five gallon bucket of porcupines than have presided over a two week trial of the herein dispute, a trial which, no doubt, would have made the jury more confused than a hungry baby in a topless bar and made the parties and their attorneys madder than mosquitoes in a mannequin factory;

 

IT IS THEREFORE ORDERED AND ADJUDGED by the Court as follows:

  1. The jury trial scheduled herein for July 13, 2011is hereby CANCELLED.

. . .

  1. The Clerk shall engage the services of a structural engineer to ascertain if the return of this file to the Clerk’s office will exceed the maximum structural load of the floors of said office.

Dated this 19 day of July, 2011.

MARTIN  J. SHEEHAN

Kenton Circuit Judge

~Kissel v Schwartz & Maines, Kenton Circuit Court of Kentucky (2011)

 

188.

Divorce Denied.

The opinion is as follows:

 

Libel in divorce by husband against wife.

Answer by wife.

Issue on cruel and barbarous treatment.

Trial by judge without jury.

She his second.

He her second.

Her dowry to him five ready-made children.

His contribution to her the same number.

None added since.

She, without a vestige of feminine loveliness.

He without a mark of masculine attraction.

From start to finish a perfectly inexplicable and hopeless connubial absurdity.

One averred ground of divorce, her cruel and barbarous treatment.

Another, indignities to his person.

Only proved specific instance of former his nose broken by her use of a stove lifter.

Only proved specific instance of latter her un-ladylike behavior in the privacy of nuptial privilege.

Nose possibly broken in self-defense as testified.

Unladylike behavior possibly incited by his own lack of good manners.

No course of bad treatment on one side more than on the other.

Blame balanced as six and half a dozen.

Mutually mean.

He mean enough to seek divorce.

She mean enough to resist.

Parties too much alike ever to have been joined in marriage.

Also too much alike to be separated by divorce.

Having made their own bed must lie down in it.

Lying out of it, no standing in court.

Decree (for divorce) refused with allowance to respondent of $25.00 for counsel fees to be paid by the libelant.

~ Justice Fuller of the Court of Common Pleas of Pennsylvania at Luzerne, Kmicz v Kmicz, 1921 USFJDO 1, also at Luz. L. Reg. R. 330 and at 50 Pa.C.C. 588

 

 

February 26: Humor

Day Williams created this graphic depiction of this date.
February 26
Humor

 

155.

We can lick gravity, but sometimes the paperwork is overwhelming.

~Wernher von Braun. Wernher Magnus Maximilian, Freiherr von Braun (1912 – 1977) was a German-American rocket scientist, aerospace engineer, space architect, and one of the leading figures in the development of rocket technology in Nazi Germany during World War II and, subsequently, in the United States. He is credited as being the “Father of Rocket Science.”

 

156.

Torture numbers, and they’ll confess to anything.

~Greg Easterbrook

 

157.

When I die, I’m leaving my body to science fiction.

~Steven Wright

 

158.

My old man claimed that the more complicated the law, the more opportunity for scoundrels.

~Robert A. Heinlein, The Door into Summer (1957)

 

future 2mb

February 26: Law and Lawyers: Humor

Day Williams created this graphic depiction of this date.

February 26
Humor  

 

155.              I know you lawyers can with ease,

Twist words and meanings as you please;

That language, by your skill made pliant,

Will bend to favour every client;

That ‘tis the fee directs the sense,

To make out either side’s pretense.

~John Gay, The Dog and the Fox

 

156.

I’m convinced that every boy, in his heart, would rather steal second base than an automobile.

~Justice Tom C. Clark

Justice Tom C. Clark

 

157.

Q: Did you see my client flee the scene?

A: No, sir, I didn’t. But subsequently I observed someone running several blocks away who matched the description of the offender.

Q: Who provided you with the description?

A: The officer who responded to the scene.

Q: A fellow officer of yours provided the description of this so-called offender. Do you trust this fellow officer?

A: Yes, sir, with my life.

Q: With your life? Let me then ask you this, officer. Do you have a room were you change your clothes in preparation for the day’s duties?

A: Yes, sir, we do.

Q: And do you have a locker in that room?

A: Yes, sir, I do.

Q: And do you have a lock on your locker?

A: Yes, sir.

Q: Why is it, officer, that if you trust your fellow officers with your life, that you find it necessary to lock your locker in a room you share with those some officers?

A: You see, sir, we share the building with the court complex. And sometimes lawyers have been known to walk through that room.

 

158.

[Definition of insider trading:] “Stealing too fast.”

~Calvin Trillin, “The Inside on Insider Trading,” in If You Can’t Say Something Nice 141, 143 (1987)

 

 

February 22: Humor

Day Williams created this graphic depiction of this date.
February 22
Humor
 146.

If you think nobody cares if you’re alive, try missing a couple of car payments.

~Earl Wilson

 

147.

Money is better than poverty, if only for financial reasons.

~Woody Allen (born Allan Stewart Konigsberg; 1935), American screenwriter, director, actor, comedian, author, playwright, and musician whose career spans over half a century.

1001 Quotations Money Matters Ben Franklin_3.2MB

February 22: Law and Lawyers: Humor

 

Day Williams created this graphic depiction of this date.

February 22
Humor

 

146.

Some men are heterosexual and some men are bisexual and some men don’t think about sex at all . . . you know, they become lawyers.

~Woody Allen

147.

This is what has to be remembered about the law; beneath that cold, harsh, impersonal exterior beats a cold, harsh, impersonal heart.

~David Frost