— And you don't think these Catholics are out to get her? This Father God knows what his name is, some unpronounceable Pole they put on her mother's case he'd come over and ring around the rosary with the old crone in that dark cavernous drawing room every afternoon till she put them in this will of hers for enough money to cover sixty years of masses for the repose of what she called her soul?
— It will take sixty years from what I've heard of her, but…
— And these diamond bracelets Harry, that was just a question of language. There were two pairs of bracelets, one was described in the will as a matching pair of diamond bracelets and the other a pair of bracelets of matched diamonds and the cousin, she's fifteen she's only a child and so…
— And so your friend Trish walked off with the matched diamonds worth a hundred times the two matched bracelets the poor girl ended up with?
— She's only got two arms hasn't she? She, I mean she was perfectly happy with them, wanted to wear them out playing field hockey till her father made a scene over the wording, he's a basketball coach so you can imagine, it was only the wording, it was only a question of language.
— But, but damn it Christina that's what we're talking about! What do you think the law is, that's all it is, language.
— Legal language, I mean who can understand legal language but another lawyer, it's like a, I mean it's all a conspiracy, think about it Harry. It's a conspiracy.
— Of course it is, I don't have to think about it. Every profession is a conspiracy against the public, every profession protects itself with a language of its own, look at that psychiatrist they're sending me to, ever try to read a balance sheet? Those plumes of the giant bird like the dog cornering his prey till it all evaporates into language confronted by language turning language itself into theory till it's not about what it's about it's only about itself turned into a mere plaything the Judge says it right there in this new opinion, same swarm of flies he's stepping on down there right now with their motion to throw out the jury's verdict if they've got any sense.
— He can't do that can he?
— Wait and see.
— But how can he. I thought that this was in the Constitution, a jury of your peers?
— A story you hear in first year law school, same argument Oscar's grandfather got into with Holmes and here's his son, here's old Judge Crease down there following Holmes down the line. Justice Learned Hand exhorting Holmes 'Do justice, sir, do justice!' and Holmes stops their carriage. 'That is not my job,' he says. 'It is my job to apply the law.' Wait and see.
— And see what! My God Harry what's he trying to do down there, the whole world flying to pieces war, drugs, people killed in the streets while this brilliant Federal judge up for the high court spends his precious time on this piece of junk sculpture and some dead dog, what's he trying to do!
— Trying to rescue the language, Christina. Wait and see.
OPINION
James B., Infant v. Village of Tatamount et al., U.S. District Court, 5. D. Va.
453-87
CREASE, J.
This is a motion under Rule 50(b) of the Federal Rules of Civil Procedure for a renewal of a motion for judgment as a matter of law after trial.
Towering over this case both figuratively and literally stands the massive outdoor steel sculpture known as Cyclone Seven which occupies a freely accessible open space in the Village of Tatamount. In an earlier action before this court the creator of this unique work, R Szyrk, sought and was awarded a permanent injunction barring the Village from removing, altering or damaging this artistic structure in any manner for any reason or for none, in a suit occasioned by its clear intention to deliver forth an animal which had by misadventure strayed into and become entrapped therein (Szyrk v. Village of Tatamount, S.D. Va. 105-87). Upon appeal this judgment was struck down thus granting the Village the right of removal in the course of which it might be presumed the animal would gain its freedom; in the event, however, before these measures were carried out, Cyclone Seven was struck by a bolt of lightning, and its reluctant tenant found to have been released forever from the travails of earthly existence.
James B, Infant, acting through his curator bonis and guardian ad litem, filed an action as owner and bailor of the chattel, a dog of tender years named Spot, alleging negligence on the part of the Village, in a cross claim for indemnity under Fed. R. Civ. P. 14 the suit was joined by impleader in the person of the sculpture's creator R Szyrk whose diversity of citizenship has brought the matter before this jurisdiction under 28 U.S.C. 1332; 72 Stat. 415 (1958). The case was submitted to the jury with instructions to which plaintiff objected. The jury nonetheless found for plaintiff and defendants appeal seeking a judgment N.O.V. for the setting aside of the verdict.
The issue involved is whether the Village in its capacity as bailee, however inadvertently and unhappily arrived at, failed in its duty to bailor under the requisite standard of care and through such alleged negligence is liable for damages so incurred.
The relationship of parties in cases of bailment constitute the large body of law pursued with a vengeance over the centuries in Justice Holmes' The Common Law Lecture V 'dealing with persons who have a thing within their power, but who do not own it, or assert the position of an owner for themselves with regard to it, bailees, in a word.' In the instant case the defendant has urged dismissal of this designation arguing not only that no agreement was entered into with the plaintiff to so commit his chattel in trust for a specific purpose to be returned unharmed once such purpose was accomplished, but further that its efforts to rid itself of this unwelcome guest were a matter of court and public record. Here plaintiff rebuts, answering that whatever the originating circumstances as scrutinized in Szyrk, supra, any encumbrance was lifted by the decision of the appeals court restoring the Village as master of its own house and the duties assumed therewith. 'For the bailee being responsible to the bailor, if the goods be lost or damaged by negligence, or if he do not deliver them up on lawful demand, it is therefore reasonable that he should have a right of action' 2 Steph. Comm. (6th ed.), 83, cited Dicey, Parties, 353; 2 Bl. Comm. 453; 2 Kent, 585 as quoted by Holmes op. cit. In alleging negligence so construed, plaintiff asserts therewith the further charge of conversion linked to irrecoverable loss of the chattel wherein his claim for damages resides.
Central to actions in bailment are the concepts of possession, by the bailee, and of ownership by the bailor. We have skirted the former to return to it below in considering the charge of conversion, and proceed now to re-examine the latter as giving upon the nature of the chattel at the heart of this action.
Due to their known peculiarities and wide variety, dogs are regarded by the law as in a class by themselves, and while under ancient common law deemed to rank low as property compared to cattle, sheep and barnyard fowl, the law has since evolved to recognize them as things of value in which the rights of property generally prevail within the statutory meaning and use of the word 'chattel.' While it has been granted that dogs have no intrinsic value as dogs unlike, in our own and other civilized cultures, animals domesticated for the purpose of being eaten where a fair market value may be rendered without undue difficulty, actions for damages arising from a dog's injury or death are not confined to its owner's showing of its market value as a dog, but most frequently on evidence warranting its value attaching to such individual qualities as pedigree and rarity of breed, intelligence, talent in the field or at herding, prize winning credentials at dog shows and the like (Wilcox v. Butt's Drug Stores, 38 N.M. 502, 35 P.2d 978, 94 A.L.R. 726. See also McCallister v. 5appingfield, 72 Or. 422,144 P. 432, quoted with approval in Green v. Leckington, 192 Or. 601, 236 P.2d 335). None of these qualities distinguished thQ dog Spot. Of indeterminate breed, undetermined lineage and unprepossessing appearance, a follower not a leader, neither hunter nor gatherer, his only talent lay in his uncritical and colourblind offer of companionship the loss of which plaintiff alleged among his causes of action dismissed by the jury under instructions from this court holding that sentimental value may not be allowed as an element of damages (Wilcox v. Butt's Drug Stores, supra).