—Don’t talk about it no, I might have died I don’t want to think about it, what if I’d died before all this happened! brandishing the tattered stave at her —and I’d never have . . .
—Well obviously if you’d died it wouldn’t have happened.
—That’s what I mean! My work, it would never be heard of, it would just disappear as though it had never existed, as though I’d never lived.
—Would it matter? I mean you’d be sitting over there on the other side happy as a clam wouldn’t you? all this earthly nonsense of cars and lawsuits and the stupidity you despise so much . . .
—That’s not it he said, pacing away and then more slowly, back to her —but it is, isn’t it. Because my work, it would exist wouldn’t it, its only claim to existence would be in this fraudulent counterfeit this, this vulgar distorted forgery and the thing itself, the original immortal thing itself would never be . . .
—Would it matter? She was off pounding sofa pillows into shape, setting them right, —meanwhile what do you plan to do about your stolen car and the . . .
—Christina I’m talking to you! I’m trying to talk about something that, can’t you listen? for a minute?
—Well my God Oscar, that’s what this world is isn’t it? I mean you’re not on the other side yet are you? Talking about immortality I’ve thought you always treated it as a monstrous joke, listening to that harangue with your new friend Jerry over which came first, madness or religion and this frenzy over God and the afterlife that’s what they’re all about isn’t it? these hordes of people going to church on Sunday and your revolting movie travesty during the week? Is that what you . . .
—That’s it yes! Sunday mass nailing down their immortality one day a week so they can waste the rest of it on trash, or the ones who squander it piling up money like a barrier against death while the artist is working on his immortality every minute, everything he creates, that’s what his work is, his immortality and that’s why having it stolen and corrupted and turned into some profane worthless counterfeit is the most, why it’s sacrilege, that’s what sacrilege really is isn’t it? Isn’t that really why I got into all this?
—Frankly Oscar, the way you’ve been waving that court decree around waiting to hear about your damages I thought it might have something to do with money.
—Well of course it does! Because that’s the only language they understand, I’ve said that a thousand times haven’t I? that that’s the only way I can be vindicated?
—Meanwhile maybe you can help her with that tray, just put it down over there Lily. I heard the phone earlier, it wasn’t Harry was it?
—I would have called you no, it was Daddy. He said there’s something very important he has to talk to me about after all this trouble and everything since tragedy struck so it must be finally about we’re going to get reconciled like I’ve been praying for.
—You? praying?
—No I just meant really hoping, you know.
—I’m afraid I do, you and Oscar here both being vindicated with a good price tag on it because that’s what we’re really talking about isn’t it.
—Well that’s, he just said they’re coming up here him and Mama with something very important to talk about and . . .
—No no I agree, I mean my God there’s nothing more important than a dollar in the bank to make people take you seriously is there Oscar, it’s a language we all speak isn’t it but they certainly can’t stay here, the place is turning into a menagerie and that ghastly little dog, where is it.
—I think it’s under that couch in the sunroom where I’m sleeping, it likes to get under things. I think it’s scared of getting stepped on.
—I don’t blame it with those two, what in God’s name are they doing out there now.
—I think there’s still all that corned beef and . . .
—No! the first thing in the morning, we’ve got to have a civilized meal in this house, we’ve got to go shopping the first thing in the morning.
It was Harry. On the phone? yes, first thing in the morning, seasoned from her end by little more than —my God, all of it? and —I shudder to think of it, you were right Harry yes, the person he thinks he is it’s almost frightening but . . . Yes I’ll tell him that . . . I’ll tell him that yes, if I can just make it penetrate God knows what he’ll . . . yes, it’s frightening . . . and she hung up the phone both hands holding it down as though it might erupt again before she could temper her voice with the calm that filled her gaze out there over the pond where a serenity of swans skirted the skin of ice left by the night, clearing her throat to call —Oscar? waiting, and again, back on the sofa —Oscar?
—Yes he’s coming, came from far down the hall, from the sunroom —wait a second, let me button this back up, and fix your pants.
—Where were you? when he appeared, straightening his collar.
—Just, in the library looking for, you remember this letter? had it in his hand in fact, —from this lawyer named Preswig? That’s why they took the car, the insurance company, because we’re suing them as the accident victim so I’d better call him so he can call the police before they arrest me.
—Please, sit down for a minute. No one’s going to arrest you.
—A hit and run accident, that’s what the police . . .
—Will you please sit down? But he was already at the phone, gasping, muttering, finally banging it down. —Well?
—Mister Preswig is no longer with us they said, of all the, and that summons I got where’s that summons, because if the insurance company is suing the . . .
—Oscar listen to me! They’ve settled your damages.
—But the hospital bills and what about the car, they . . .
—I’m not talking about your car. I’m talking about your immortal soul, now sit down. Harry called. You’ve been awarded all the profits on the motion picture The Blood in the Red White and Blue.
—But that’s, Christina that’s millions.
—Now listen, sit down. Harry said that of course they’ll . . .
—But that’s millions! I can’t sit down no, Lily? That’s millions Christina, those newspaper clippings when it opened where are they, you remember it gave all those box office figures the first week it, where is she. Lily!
—For God’s sake stop shouting. It’s not over with, can you just sit down for a minute and let that penetrate? Harry said of course they’ll appeal the master’s decision to try to get the award reduced and . . .
—Yes call Harry, why didn’t you call me? Let me call Harry and . . .
—He’s not there Oscar, he was in a hurry. He had to get this company helicopter up to Westchester for one of these endless conferences, now . . .
—Oscar? are you okay?
—He’s not okay Lily, he’s about to go through the ceiling, now . . .
—But it’s millions! All the profits, the court’s awarded me all the profits suppose they do reduce it a little it’s millions, it’s still millions isn’t it? isn’t that what I said? that that’s the only language they understand? Now where’s the, where’s my, what was I looking for.
—God only knows, that summons? Have you looked in this mess on the sideboard? Bills, statements, travel folders, glossy new car brochures and —what’s this.
—Oh that’s this little package that came for Oscar yesterday, I just put it there and forgot to . . .
—Well give it to me! but she’d already torn it open. —It’s mine Christina give it to me!
—I don’t believe it.
—No listen, I just sent away for them to see what they . . .
—I don’t believe it. Hiawatha’s Magic Mittens, made from genuine simulated my God Oscar. Wear ’em with the furside there isn’t any furside, they’re plastic. Your own personalized pair of look at them, they’re for a six year old and look. A little song book. Your own book of brand new songs to sing when you put on Minjekahwun and set forth to do battle with the West Wind, with the mighty Mudjekeewis, when you rend
the jutting crag of the fatal black rock Wawbeek I mean my God, you’re not six years old any more are you?
—I said they’re mine! Give them to me, now I can, listen. I can settle things once for all now can’t I? so I won’t owe Father a thing? I can buy this place myself so he can’t sell it right out from under us, it was never really his anyway was it? so we won’t have the bank and the mortgage and repair the veranda, put in a new driveway and that real estate woman peeking in the windows whenever we, listen. Listen, call her, tell her I’m prepared to make an offer who is she, I’ll call her myself.
—Oscar sit down! You’re not calling anyone, you’re not prepared to make an offer on an old shoe, I told you Harry said it’s not over with didn’t I? that they’re figuring out ways right now to get your award reduced? I mean Father’s got enough on his plate with this Senate committee and the mess in his courtroom over this wrongful death case, apparently that insane law clerk is sending you a copy of his instructions to the jury just to make things more difficult for everyone since that seems to be his main purpose in life and, what is it now Lily.
—That’s where Reverend Bobby Joe is at that trial because that’s why Daddy’s coming up here so we can get reconciled without him making restitution to the Lord with his hand on my . . .
—For God’s sake be still, go and see if the mail’s come yet will you? And here, hand him these damn mittens and his little book, if he’s going to sing a dirge for the mighty Mudjekeewis he’ll need them.
INSTRUCTIONS TO THE JURY
In the case of Fickert v. Ude, U.S. District Court, S.D. Va. Misc. 88687
CREASE, DISTRICT JUDGE
You have heard a suit for damages in a case alleging wrongful death brought by the plaintiff Earl Fickert, of Hog Corners, Mississippi, against the defendant Rev. Elton Ude, residing in this federal jurisdiction, for the loss of plaintiff’s minor child Wayne Fickert, on October 25, 1985.
As members of the jury and thus of this court, you have been offered evidence by both parties which it will be your duty to sift through for the facts. During these deliberations, you will also consider the sometimes conflicting testimony of the many witnesses which will be yours to evaluate according to your best judgment, unclouded by either prejudice or sentiment.
You understand that this is a civil and not a criminal case. In other words, it is a suit brought by one private citizen against another, and the fact that a death is involved does not mean that the defendant, if found guilty, would be subject to criminal penalties leading to his imprisonment or worse, but limited to the payment of money damages to the plaintiff. Before you retire, it is my duty to assist your deliberations by providing you with the controlling points of law which must guide you in reaching your verdict, to the exclusion of all other considerations.
On the unchallenged evidence there is no doubt that the decedent suffered death by drowning, having delivered himself into the hands of the defendant for immersion in the flowing waters of the Pee Dee River for the purpose of baptism in the Christian faith according to usage and custom, and that he was abruptly borne away by the rivers current in the course of this ordeal which he did not survive.
You have heard the tragic event recounted in some detail by the defendant, and you may review his testimony in the light of that of other witnesses and of the evidence. On no account, however, are you to allow either the emotional outbursts from the spectators attending this trial, notably that provoked by defendant’s son resulting in the courtroom being cleared, or any stories, gossip or other innuendo you may have encountered in the past regarding defendant’s earlier alleged adventures with the law, to influence your deliberations.
We repeat, this is not a trial for murder or even manslaughter. There has been no evidence or even a suggestion of deliberate intent on defendant’s part to harm the victim of this unfortunate episode. Thus, you are asked first to determine the actual cause of death and its relation to the possibility of negligence on defendant’s part in the event. Clearly the testimony of one witness, for example, in an effort to simplify matters with the words “he just got drownded” will not suffice. The medical reports do indeed verify drowning as the proximate cause of death, but was there an intervening cause beyond the control of the defendant which might have brought this about?
Let us suppose your near neighbor lights a bonfire during a strong wind which blows sparks onto your property, setting fire to your house. You would certainly find him negligent, not to say stupid, in that he should have known better. But suppose the day he lights his fire is still and calm, and only later a high wind suddenly rises carrying the fire’s embers to your house and property with the same result. This is known as an intervening cause, since it acts upon a situation orginating with your neighbor but, as he would certainly argue, with a result he had not anticipated. How long had he lived there, and how familiar was he with the vicissitudes of the weather you inevitably shared, where a high wind might suddenly come up from nowhere on the finest of days? In other words, the standard of law regarding negligence embraces the idea of a risk to others which can be foreseen by a reasonable man, since if he cannot anticipate any harm coming from his actions, he can’t be held liable for injuries that may result. Is the Pee Dee River known for sudden surges of its current at this particular site, in certain seasons, or at certain times of day, sufficient to sweep away the thrashing figure of an eighty pound boy? Or was this an abrupt departure from the river’s habits brought on by flooding in the waters above, or by some other mighty force?
These factors are part of the evidence before you together with the defendant’s testimony, supported by a veritable horde of witnesses, that innumerable such baptisms have been conducted at this site without dire consequences, and you are instructed to disregard as irrelevant that testimony citing the death of an unattended cow, two dogs, and the handful of pigs rumoured to have accommodated Jesus in Matthew 8:32 as latter day hosts to devils rushed to their destruction in these waters.
While under the law a suit for negligence places the burden of the standard of care on the defendant, it may also rest on another foot, however small, in this case that of the decedent Little Wayne as he was known to the community. How aware was he of the risk to himself posed by this ceremony, and whatever the degree or lack of his awareness did he consent to his part in it freely and voluntarily? There is a basic principle of the common law expressed in the Latin tongue as volenti non fit injuria. That means no wrong is done to someone who is willing, and if you know there are risks the law can’t protect you from your own foolishness if you go ahead with it. From the evidence and testimony of witnesses, the decedent readily consented to undertake his part in this fatal ordeal, that he enthusiastically and even joyously embraced the prospect of baptism in the Lord’s service and had, in fact, looked forward to that transforming moment from the tender age of four. Under the circumstances we cannot, of course, hear his own testimony as to his awareness, or the lack of it, of any risk he might face, and here the law is our guide
Under the laudable doctrine of this venerable Christian sect from which it takes its name, baptism is deferred until an age when the candidate is believed able to understand the depths of this commitment, unlike those widespread cults of mainly foreign origin wherein infants are handed over to the designs of the Almighty well before they are weaned. Under the law, the age at which an individual is considered capable of the assumption of risk has varied from one court to another and is often set at fourteen, but it is usually a question for the jury to decide. In doing so however, the jury must realize that if he is capable of understanding the risk involved and goes ahead with it anyhow, he will share in the responsibility for its consequences, in this case his own destruction. This is called contributory negligence, and will largely relieve the defendant of his own. On the other hand, given the facts of a situation containing elements of duress, in other words of various pressures from family, friends and the community which a minor finds himself unable to resist, h
e has in effect been given a choice of evils by the defendant, and while his conduct may indicate his consent, the facts in the situation may persuade us otherwise. Consequently, the court here instructs the jury to find that the decedent will be found not to have assumed the risk, or to have relieved the defendant of the duty to protect him.
In discharging this duty of care placed on him by the law, we have no evidence that the defendant knowingly misrepresented any aspect of the situation to the decedent. Due to the swift current and the suddenness of its action we see no indication of a last clear chance when the decedent might have been saved or have saved himself. We have only conflicting testimony as to whether the defendant knew the boy could not swim, and the suggestion that alcohol may have played a part in the defendant’s conduct has been stricken from the record. There are certain things we can never know, and during your deliberations you are urged to bear in mind the words of an eminent jurist of a bygone era. ‘The law,’ wrote Justice Holmes, ‘takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men. It does not attempt to see men as God sees them, for more than one sufficient reason.’
Thus far we have gone on the premise that the defendant acted entirely on his own. At the same time however, we are all aware that he has never presented himself to this court, to the decedent or to the world at large as other than a willing and devoted servant of a most demanding master, to whom his life and works are dedicated. He is widely held as a servant in the Lord’s employ, and a diligent member of his working staff.
We reach far back in the history of English law, from which we draw our own, for the doctrine linking the master to damage and injury caused by his servant, and holding the master liable even when done intentionally, so long as it was carried out within the scope of the servant’s employment. While we have before us neither direct testimony from the defendant’s employer, nor any means of obtaining it, regarding the terms or even the fact of this employment, the defendant’s own sworn statement to having been ‘called’ into the Lord’s service is uncontested. He has elsewhere been reported to have spoken directly with his employer, and referred to in contemporary accounts of the event before us as ‘the dynamic leader of Christian Recovery for America’s People’ in his call for ‘the opening salvo in God’s eternal war against the forces of superstition and ignorance throughout the world and elsewhere.’ There can be no question that, in bringing a new soul into the fold through the baptismal ceremony, he was engaged on his master’s business much as, we may recall in Luke 2:49, this selfsame master at age twelve found lagging behind at the temple in Jerusalem by his anxious parents, rebuked them saying ‘Wist ye not that I must be about my Father’s business?’ and not, in the words of a later English jurist, ‘going on a frolic of his own.’ In carrying out this solemn assignment, even were there reliable testimony that this omniscient master must have been aware of the risk and told his servant to act carefully, the law still holds him liable for a prevailing share in the consequences. In other words, the master may not delegate responsibility for the servant’s acts to him, since under the terms of their relationship he remains ultimately responsible for protecting his servant. This must hold the more true where the instrument of imminent catastrophe is the master’s to control, as must the crest and current of the Pee Dee River have been for one who had shown himself capable of stilling a great tempest to save a ship from foundering by merely rebuking the winds and the sea in Matthew 8:26, with which I am sure you are all familiar.