In pursuing your deliberations, I must pause to recall your attention to one more item of testimony which you are instructed to disregard. That is the heated attempt by one witness to indict Satan for meddling in this situation, drawn from the evidence of contemporary records quoting defendant’s mention of ‘the great deceiver Satan’ causing him to doubt the Lord’s purpose. As was held in an earlier case before a district court in Pennsylvania, in which the plaintiff accused Satan of ruining his prospects by placing obstacles in his path, thereby depriving him of his constitutional rights, the complaint was dismissed for its failure to discover Satan’s residence within the judicial district, or instructions for the U.S. Marshal needed to serve the summons, and the failure to meet legal requirements necessary to maintain a probable class action, since the class would be so numerous that getting them all together for this purpose would be impractical. I may add that this information could be useful to any of you contemplating a similar recourse in your own difficulties, as the commotion which greeted this testimony in the courtroom provoked by defendant’s son indicated to be a serious possibility
While the allocation of damages should not be allowed to direct your verdict, you must be clear on the law as it views these matters. In general, the damages awarded to the legal beneficiaries in the death of a child are based on his earnings, services and contributions at the time, and more problematically on the loss of whatever prospective economic benefits he might have been expected to provide had his life not been cut short. This is governed by such elements as life expectancy, health, habits, character, and perhaps particular talents in profitable fields of enterprise. It is quite possible for the cost of rearing, maintaining and educating a child to outweigh the expected benefits, leaving him for all practical purposes worthless. Furthermore, since awards for sentimental family relationships are generally forbidden, and survivors may not seek damages for mental suffering or grief, he may even end with a negative value, going so far as to tempt the defendant, where contributory negligence is involved, to turn the tables and sue for recovery himself.
The future of each mortal being is wrapped in an impenetrable mist, most especially that of a boy who has scarcely embarked upon life’s journey. In the annals of law we find, here a substantial award made for a boy of seven who showed promise as a cartoonist, there for another the near certainty of an impressive income in his consuming ambition to become a dentist. Still, in a country where a chief executive is paid a million dollars’ salary for managing an automobile company that loses a billion that same year, the odds are hard to call. The decedent might one day have abandoned his calling and, like Babbitt, found it elsewhere in the malodorous realm of real estate development, might have become a writer at the mercy of publishers and starved in a garret or ended it on the spot, might have been lost at sea or gone up as a soldier, become a drunkard and a public charge. We can only speculate with the evidence before us
The decedent’s earnings at the time of death had been gained mainly by picking berries, and his carefully husbanded estate amounted to $4.36, having bought new clothing especially for the baptismal ceremony from his own savings. This earthly estate would appear to corroborate the testimony we have heard quoting Matthew 6.19-21, that he was unconcerned with laying up treasures on earth but rather ‘in heaven, where neither moth nor rust doth corrupt, and where thieves do not break through nor steal: for where your treasure is, there will your heart be also.’ In the defendant’s testimony from the record at the time of the event, ‘recalling the day Wayne Fickert made his decision for Christ,’ he saw him ‘going forth one day from the Christian Recovery Bible Mission School to take the Lord’s word to the very farthest reaches of the world.’ There, high in the Himalayas, he might have been a priest aspiring to no more than a begging bowl; elsewhere, in the urban din below, he might have pursued the course of rabbi looking forward to a hundred thousand a year; but the humble faith of his fathers, who appear to have been numerous, promised no such economic benefits in computing an award for damages to the survivors since you must exclude from your deliberations any speculation involving the vast sums accumulated by those in the Lord’s service who are currently in jail for confusing his assets with their own, or even those still at large living on the scale of the automobile executive who, like the elder John D Rockefeller teaching his Sunday school classes, regard themselves simply as the Lord’s stewards.
Under the State of South Carolina statutes authorizing civil actions for wrongful acts causing death, such actions shall be for the benefit, among other relatives not here represented, ‘of the parent or parents, and if there be none such’ for the heirs at law and so forth. Both parents are parties to this action, the father Earl Fickert as plaintiff, and by joinder the boy’s mother Billye. You are here instructed to dismiss the latter’s claim on the grounds of contributory negligence on her part, in the assumption of risk in providing her consent as evidenced at the time by ‘her tearful gratitude that her son had been baptized and entered the waiting arms of the Lord in a state of grace,’ and on the further grounds of her remarriages since the event, reclaiming her name as the boy’s mother for the sole purpose of participating in this action.
Damages will go to the original plaintiff, whose scurrilous testimony and profane demeanor throughout the trial leave no doubt that consent to his son’s baptism, had he known of it, must have been the last thing in what we may arguably call his mind. The amount of the award will not be diminished by the usual claims for medical and funeral expenses, there having been none for the former and the latter, including the fried chicken and refreshments served for the occasion, were assumed by the defendant’s assembled congregation. This leaves only the loss of the boy’s clothing, a blue suit, shirt and tie bought at a cost of $18.76 at JC Penney which he insisted upon wearing under his baptismal smock, and the award will be made in that amount plus one dollar for punitive damages.
—Laying up treasures in heaven! did you see that Christina? He wouldn’t read my play, no, but that’s where he got it, he took it right out of my prologue.
—It’s faintly possible he’s read the Bible himself Oscar. I mean he’s had ninety five years to get through it hasn’t he?
—Well he, all right then maybe the Old Testament, the last thing he did was throw God out of his courtroom and you saw what happened, now he’s bringing Jesus in at the back door. He doesn’t even get through the third book of the New Testament does he? leading this jury by the hand like kindergartners on a field trip so he can point the finger right at him? Master and servant, master and man, he’s just trying to stir them up.
—But he already did Oscar, came from the sofa in the flickering light of the silenced screen where a leggy blonde who had found relief from hemorrhoids cycled down a country lane and passed them beaming —when Daddy called last night? and he said they’re coming up here without Reverend Bobby Joe because your daddy put him in jail for thirty days for contempt of court for getting up and shouting for the Lord Jesus to come and . . .
—Well my God Lily Father would give Jesus thirty days if he could, are you watching that thing? If you’re not turn it off, now what is this mess.
—No wait, those are plants for my fish tank.
—Then take them in and plant them, now what about this heap . . .
—First I have to fix the light in it and the aerator and . . .
—I said what are you going to do with this heap of mail, look at it. Everybody on earth must have read about your great award.
—I’ve looked at it Christina. That’s why I’m getting a secretary.
—That’s ridiculous, Lily can read can’t she? You can open an envelope can’t you Lily? doing so herself, —the National Speakers Association invites you to join our panel of distinguished Americans who are in constant demand for speaking engagements and God help us, I hope you’ve learned that lesson, what you need is a wastebasket. As a high achiever who appreciates the finer things in life, you are invited to join a
select circle of . . .
—Will you just stop standing there and tearing things up? There might be something important.
—A pre-approved credit line with a string of Handichecks for your immediate convenience, do you need a secretary simply to throw things away? What we need is a housekeeper, loading those two on that bus for the Bronx was the happiest day of my life. You can boil a lobster can’t you Lily, after that revolting trout we deserve something civilized, I mean what we need is a cook. Now, with a sweep of her emptied hand —will you clean up all that before I lose my mind? All that, before a bottle of Chablis smoothed their way for the lobster, butter running down his thumb onto the white tablecloth, before the light and the aerator were installed and the plants submerged in the tank, before another delivery brought more bills and anonymous personalized invitations and a script indecently titled from a playwriting hopeful thirsting for production and before another rushed a lone angelfish in a plasticized transparency to take up residence among the water sprite and Ludwigia and wavering fronds of Spatterdock enveloped in silence and the eerie illumination neither day nor night, spooky was the word for it as his hand glided over her breasts, now could he feel it? in a whisper, the lump there? because it seemed to have moved, as his hand did preoccupied elsewhere, as hers did now filling with promise abruptly kept with a gasp and a shudder echoed in a moan before he rose from her unsteadily to find the stairs in the dark with the stealth of a schoolboy, all that before the night winds rose with a moaning echo down the chimney blowing in a new day.
Tea, and toast, —and this, she said, holding out the shred of something, —it was on the floor in there.
—Well what is it.
—Those mittens, he chewed up those dumb magic mittens.
—Well my God don’t tell Oscar, I’d forgot all about him. Where is he, have you looked for him?
—He’s usually under something. Pookie? trailing her voice down the hall, peering under things, and on into the kitchen where —it must have choked, discovered rigid behind the kitchen stove —right where I keep seeing this mouse. She’s never even called.
—She will Lily. She will.
And when, eventually, she did, —Who? No this is Lily . . . Oh hi, sure I remember, that day you came out here with that big picnic and that man with the . . . with a little white dog? No, I . . . Oh. Oh, well maybe if you advertise in the paper, they . . . No I just thought if he was worth a lot maybe somebody kidnaped him and . . .
—Here, give me that. Trish? what . . . oh. Oh what a shame . . . No I, but he, I mean he must be around somewhere, he . . . and you’re sure you didn’t take him to Aspen? Maybe he’s right there at Bunker’s, I mean you ought to have another look before you call in private detectives he, he might be under something, maybe Jerry . . . Oh. Oh my God . . . about losing his job yes but why in God’s name is he angry at Oscar, I mean . . . No that’s the most ridiculous thing I ever heard, he hasn’t spoken to his father in ages and . . . but . . . No, but . . . Trish it’s the most ridiculous thing I’ve ever heard it’s absolutely paranoid, he’s . . . I said he’s more than just a little bit crazy, that show he put on out here breaking Oscar’s bones you were here Trish, you were right here and . . . Who, Oscar? now wait a . . . Wait just a minute Trish! Of course Oscar’s a bit eccentric but for you to use a word like . . . Certainly not! and I don’t want to hear another . . . Well I’m sure you’ll find it, just keep looking under things! and their eyes met the moment she hung up, holding each other’s steadily until she said —what did you do with it.
—I threw it in the pond.
And she sat there simply tapping her foot until the tight line of her lips broke with —Well. Here’s the mad poet himself.
—Was that call for me?
—It was not.
—No but listen, I’m expecting a call from . . .
—I just said it was not didn’t I! My God, putting up with this nonsense day after day, your friend Jerry thinks there’s a conspiracy. He thinks Father wrote the brief for your appeal, it was much too clever and thorough for the young country lawyer who showed up there in the appeals court so he checked and found he was from Father’s jurisdiction and the whole thing turns into a conspiracy, I mean isn’t that what paranoia is simply all about?
—But what do you mean, it turns into a conspiracy. That day he came out here and we talked about my play and the . . .
—Between you and Father! He thinks you think the way he would, he’s giving you credit for being much more cunning than you really are that’s why he’s outraged, because you took him in, because you put one over on him pretending you didn’t know anything about it when you’d already gone to Father for help and you and Father set up the whole thing.
—But I, it never occurred to me, I . . .
—And why didn’t it! Marching around here with your magic mittens and the whole, I told you to call him didn’t I?
—But I still don’t see what the, why did he call you, why would Mudpye call you and make up something like . . .
—Did I say that? You don’t listen, did I say he’d called me? Trish called, it was Trish more muddled than ever babbling away with a drink or two because dear Jerry lost the appeal and is losing his bonus and may lose his job till I had to hang up, babbling on about appeals and briefs she doesn’t know a brief from a, from a banana it’s all nonsense. It’s all perfect nonsense.
—But maybe, listen Christina maybe Harry can find out what it’s all about couldn’t he? Can you call him and . . .
—My God if he was in town do you think I’d be sitting here with you two? He’s in a motel up in Westchester standing by at these idiotic conferences doing exactly nothing but running up the client’s billings and . . .
—Listen . . .
—propping up Bill Peyton in the cocktail lounge with some topless . . .
—I said listen! Will you listen to me? can’t you see what happened? that he did it himself, can’t you see? That Father exploded when he got hold of that lower court decision and tore their case to pieces in a brief he sent some local lawyer up here to the appeals court with? He didn’t even, there didn’t have to be any conspiracy he just did it! God that’s what he’s like isn’t it? He doesn’t conspire he doesn’t have to conspire with anybody even with me, I told you he’d read it didn’t I? my play, I always knew he’d really read it but never told me, he never really told me anything even when I, when he knew I was digging in the chair cushions for change that fell out of his pockets, I know he knew but he never said anything and that made it worse, I’d just see him looking at me sometimes like he did that terrible day with the birch tree and that made it worse listen, listen I’ve got to call him. I’ve got to call him I, how badly I . . .
—Oscar wait, will you just sit down and try to think it through before you do anything? But he was already up punching numbers, spilling the phone, muttering broken syllables into it and finally standing there intent, his shoulders fallen hanging it up. —Why don’t you sit down and make sure of the number while you . . .
—Of course it was the right number, after all these years? It was just some, his law clerk’s out sick and that was some bailiff or something, he’s in court, he’s on the bench says this loafer and just hangs up before I can leave a message, it was always like that. Even when I’d leave a message I never knew if Father got it, even back then when I’d call and call I never knew if he heard me and now, and now . . .
—And now will you please just sit still and try to collect yourself? I mean after all you’re just guessing aren’t you? Will you wait till you can find out what really happened? wait till Harry’s turned loose and can take time to get it all straight before you . . .
—But I’ve waited! Waiting on Harry waiting on Sam I thought it was some lawyer of Sam’s but then Harry said no, no that’s what’s so terrible I’ve waited! Mudpye and Harry and Sam and, yes and Basie all of them with some patched up ideas while Father’s been there standing by me all the time! He’s kept hi
s faith in me when I’d lost mine in him and, and the things I’ve said, a lot on his plate of course he’s got a lot on his plate when I thought he’d turned his back on me because I wasn’t worth his, because I wasn’t, I wasn’t was I! his face gone suddenly buried in his hands —God I, I’m just so ashamed.