A Frolic of His Own
For Muriel Oxenberg Murphy
What you seek in vain for, half your life, one day you come full upon, all the family at dinner. You seek it like a dream, and as soon as you find it you become its prey.
—Thoreau, to Emerson
Justice? —You get justice in the next world, in this world you have the law.
—Well of course Oscar wants both. I mean the way he talks about order? She drew back her foot from the threat of an old man paddling by in a wheelchair, —that all he's looking for is some kind of order?
—Make the trains run on time, that was the...
—I'm not talking about trains, Harry.
—I'm talking about fascism, that's where this compulsion for order ends up. The rest of it's opera.
—No but do you know what he really wants?
—The ones showing up in court demanding justice, all they've got their eye on's that million dollar price tag.
—It's not simply the money no, what they really want...
—It's the money, Christina, it's always the money. The rest of it's nothing but opera, now look.
—What they really want, your fascists, Oscar, everybody I mean what it's really all about? She tapped a defiant foot against the tinkling marimba rhythms seeping into the waiting room somewhere over near the curtains, where the wheelchair had collided with a radiator and come to rest. Trains? fascism? Because this isn't about any of that, or even 'the opulence of plush velvet seats, brilliant spectacle and glorious singing' unless that's just their way of trying to be taken seriously too —because the money's just a yardstick isn't it. It's the only common reference people have for making other people take them as seriously as they take themselves, I mean that's all they're really asking for isn't it? Think about it, Harry.
—I've thought about it, now look. How long do we have to wait. I've got to be in court in an hour.
—He's been in therapy they said, it shouldn't be long. The nurse said he's in a highly agitated state.
—Ever see him when he wasn't?
—Well my God can you blame him? She was digging deep in the shopping bag on the floor there between them —after all, being run over by a car?
—Looks like he's planning a long stay.
—Well of course he wanted his own robe and pajamas, the rest of it's mail, notes, papers, how he expects to get any work done here.
—Probably as much as he ever gets done anywhere.
—And do you have to start that? I mean that's why I asked you to stop up here and see him isn't it? to show a little family concern for him? Maybe you can even pretend it was your own idea, here... coming up with whatever brightly wrapped, —you can give him this.
—It's just a jar of ginger preserves, the kind of thing he likes with his toast in the morning. I'm sure all he gets here is that loathsome Kraft it's grape because it's purple.
—You don't think he'll believe it do you? that I went out and bought him ginger preserves for his morning toast?
—I think he'll think you were very thoughtful.
—I was. I picked up a copy of this Opinion in the Szyrk case for him.
—That was very thoughtful Harry, it was just the wrong thought. You know he and Father hardly see eye to eye on anything as it is, do you think this asinine business about the dog all over the papers will help matters?
—And something else here about that big Civil War movie, he may want the...
—Well my God you're not going to show him that! I mean I just told you he's in a highly agitated state didn't I? Isn't it all bad enough? When I drove out there to pick up his things the lawns hadn't been cut, that south veranda still hasn't been repaired I don't know what holds it up, he was going to have the garage doors painted and they haven't been touched, the way he's talked about getting the ignition on that terrible car fixed for months, and then of course Lily drove in, that was all I needed. In a BMW. I wish you wouldn't drum your fingers that way, and can't you do something about that awful music? His hands came to grips on the attache case flat on his lap, and she closed her knees as though in restraint against the turn, turn, turn turn turn, turn being accompanied without great success by stabs from the wheelchair. —A new BMW, she'll probably be here any minute. I didn't want to tell her what had happened but of course I knew Oscar would be furious if I didn't, it's like everything else. I thought it was that real estate woman driving in but it turned out he's never even called her, it's just as well though. You can't imagine anyone wanting to buy the place the way it looked this morning.
—What do you mean, exactly. It's Father who's making noises about selling it after all.
—That Oscar doesn't want to see the place sold.
—Well I know that Harry my God, we've gone over it for a hundred years. I mean we used to talk about one of us buying the other one out when we grew up, but if something happened to him and the whole place would come to me he'd get violent because it had belonged to his mother when Father married her and he'd say he'd come back and haunt me, he'd jump out from behind doors to show me what he'd do, grabbing me and tickling me till I screamed, till I couldn't breathe till, till somebody came, until my mother came and pulled him off, or Father. That's all he was afraid of. Father.
—Sounds a little unhealthy, if you ask me.
—Well I didn't. I mean we were just children, after all.
The music had taken up a Latin throb livened by haphazard thrusts, lurches, abrupt leaps of hands from the wheelchair where she turned her back, left an awkward leg behind in her impatience, and which opera, if it came to that, 'true love defying family hatred? a 'tragic tale of family ties and superstition? tapping the deviant foot behind her —but where he ever thought he'd get the money, unless he married it like Father did. I mean you can see why Lily's parents gave up on her, he told me her father's putting all his money into her brother's hands, getting around the estate taxes in case he dies, so of course she pictures herself marrying Oscar and moving right in if she can ever get her divorce straight, which of course she can't. Where are you going.
—Look he's probably going to be here for a while, why don't I come up later in the week when he...
—You can come up later in the week too Harry, I mean this whole thing will give you both a chance to get to know each other a little better won't it, spend some time just chatting? Because I still think he paid off her first lawyer when she went on to this second one, half Oscar's age and she's already managed a mess of a marriage and this mess of a divorce and her mess of a family and now this mess she's got herself into getting her purse stolen? Of course they won't give her a penny no, no but Oscar will, lending her money as though she could ever pay it back while he's talked about getting the ignition on that car fixed for months, the way he's talked about his teeth, will the car last long enough to justify getting new tires. Two thousand dollars for new teeth no, no he'll give it to Lily but he won't go out and buy himself new oh my God! What happened!
—Woman getting off the elevator, she sailed into that nurse with a tray of blood samples and wait, wait Christina sit down, don't...
—But it's Trish! and she was up. —Trish!
—Oh God. Teen how sweet, how did you know I'd be here, look at it. Blood and broken glass all over the floor, it's just like home.
—But what wait, it's all over your coat wait, nurse?
—Nurse! Whose blood is this no, don't touch it Teen God knows what you'll catch, nurse? Can't you do something?
—Just step over here Ma'am so we can, Jim? Where's Jim. Tell him to bring a mop I've got to go wash my hands, tell him to put on gloves.
—Will this blood come out of my, where did she go. No I'd better just burn it, like that floor in the upstairs foyer it will never come out, it's as bad as red wine stains on a marble table people can be so damned careless, simply facing that smirking bitch at my cleaners after the last time she'll come up with cela va devenir une habitude Madame? and have it all over the upper east side, but how thoughtful of you to be here Teen. Always thinking of others.
—No it's Oscar, a car accident, he was run over by...
—But how clever! I mean he can sue for millions can't he, if you read about these marvelous awards they're handing out every day in the papers? Is he still at that dreary writing or teaching business or whatever it was? He'll be quite set for life won't he, I remember the time he took us all to the beach at Bailey's and lost his, oh God look at that! She thrust out the point of a 9AAA in mauve peau-de-soie, —look at them!
—But they're lovely, simply exqui...
—Don't you see it? right there on the toe, the blood?
—It's only a speck, no one would...
—Do you think Gianni would ever sell me another pair if they could see that? She seized the near shoulder,—just steady me...
—It's only a speck wait, don't...
—You can't think I'd wear them now, spreading God knows what disease all over town? kicking off one, then the other, —I mean they were designed to go with the coat in the first place, maybe they've given Oscar a pair of these little paper slippers like that mad man over there in the wheelchair waving his arms around conducting the music Teen don't look now, a rather slick looking fellow over by the door giving you the eye.
—Where, what oh, oh it's Harry. Harry? Harry this is Trish, we were at school.
And as he came in reach —Oh! seizing his hand, —and he's your doctor?
—He's my husband Trish, Harry Lutz. He's a lawyer, we...
—Teen I didn't dream you had a husband!
—Well I didn't a year ago, we...
—But how clever of you. Getting one right in the family I mean, where he won't send you these ridiculous bills and then sue you like mine always do, because I've got to call Bunker the minute I get home. Of course I'd hate to sue over this mess but after all he's on the hospital's board isn't he? and it's not as though I haven't given those damn white tie diamond benefits year after year till that night in the elevator when they ripped the diamonds right off my throat and took poor Bunker's billclip, his old daddy's gold billclip shaped like an outhouse it was just the sentiment, he advertised for weeks and now it's black tie and we just call it the Winter Party to keep it low key which is simply incongruous isn't it, I mean Harry Winston doesn't turn you out for a church supper in Kalamazoo and Gianni wouldn't make me a shroud if they could see this coat right now with God knows whose blood on it spreading God knows what, this new depravity they've come up with just to get back at the rest of us who thought the bad news for a good fucking went out with penicillin but it's not like that loathsome Mister Jheejheeboy anymore is it, making a career out of marrying us we were all such damn schoolgirls but so long after school was out, now you don't dare touch anybody under thirty Teen I've got to talk to you.
—Yes but just, Harry? Harry wait a minute...
—Because I mean marriage at our age Teen, suddenly it's half the fun at twice the price will you call me?
Maracas, bongos, chichicaboomchic, he'd got as far from the commotion in the wheelchair as the waiting room allowed, standing there drumming his fingers on the attache case when a nurse tapped his arm, pointing down the corridor to —six twelve B.
—Yes I'm coming. And that shopping bag will you, oh you've got it. Trish? Call me?
—Love to Oscar, and Teen? I meant to say how devastating for your father, all over the papers with that horrid dog, and you'll call? Someone should simply shoot it, nurse? Are you going to simply leave me standing here like this?
—Here, this way... and down the corridor, —talk about Lily...
—Well what about Lily! Striding out ahead —no, there are two kinds of people in the world Harry, one of them gives and one of them takes, think about it. You don't think those benefits that Trish gives are breadlines do you? Her third husband owned half the timber in Maine, and here's Lily squeezing money out of poor Oscar when he won't even buy himself new teeth, like that car, buying new tires for the car or will it fly to pieces first.
—Like that... catching her aside as a nurse came bearing down on them with the wheelchair from behind.
—Parkinson's, as the wheelchair passed with silent leaps of a hand, jerks of the head, —palsy, Christina. Palsy.
612 B: in the first bed an inert figure lay absorbed in the chaos of a traffic report from a hand sized radio; and beyond the drawn curtain from a welter of newspapers, —Well. You're finally here.
—We've been waiting out there for hours Oscar, they said you were in therapy or something.
—Did you think I'd be out playing baseball? Hand me that glass of water will you? Hello Harry.
—Harry wanted to stop in and see you Oscar, he brought...
—Did you bring my mail? and the papers?
—I was going to but I thought they'd just upset you. Of course you've got them all anyway.
—I didn't say newspapers did I? Of course I'm upset. Did you see that item Harry?
—Item? How could he help it, it's the whole front page! She came rounding the end of the bed gathering them up, flourishing the bold headline, —someone should simply shoot it, will you just look at this? out, damned spot
—You think somebody won't? He'd taken the only chair, snapping the attache case open on his lap, —police, firemen, torchlights, hot dogs, cotton candy, see them on the news last night Oscar? Stars and Bars and the good old boys with six packs in both hands, the hound in the pickup with the shotgun rack behind the seat, they're probably burning the old man in effigy down there right now, he...
—What else can you expect, being a Federal judge in that outlandish place Oscar move your leg.
—I can't, wait, those newspapers, what are you doing...
—Throwing them out, you've read them all haven't you? If you want to keep right on being upset, Harry's brought you a copy of Father's Opinion that's made all the trouble, that's the...
—That's not why I'm upset! There's something in one of the papers, can you just leave them there? Something about that big Civil War movie, somebody suing that man Kiester who made it, did you see that Harry? the one that made that Africa movie with those special effects that had people passing out in the aisles?
—Those lawsuits are a dime a dozen, Oscar. Nuisance suits, people who hope to get paid off just to go away, look I've got to get downtown, the...
—No but if he stole my idea, the same story all of it, it's even the same battle it's not a, just a nuisance it really happened, it was my own grandfather wasn't it?
—Oscar you can't just, you can't own the Civil War. You can't copyright history, you can't copyright an idea now here, here's your father's Opinion. It's great bedside reading, you can see if they could get their hands on this Szyrk character down there they 'wouldn't bother with burning an effigy.
—No but Harry?
He was up, closing the attache case with a snap, —frankly I think he'll be overturned on appeal, a poisonous atmosphere like that down there the newspapers are already going after him just for being past ninety years old...
—Racist, leftist, they'll dig up anything they can to kill his chances for the circuit court and a reversal won't help.
—Will you just sit down for a minute? Oscar's asking you something.
—Well what Christina, what. I just told him copyright law isn't my field and...
—Maybe that's not what he's trying to ask you.
—Well what is he trying to ask me!
—He's expecting the insurance man about the accident and he told me he wanted your advice.
—Look I just said I'm in corporate law, I'm not one of these ambulance chasers I don't even know what happened, now let me...
—I told you what happened. He's been talking about getting the ignition on that car fixed for years, the way he's talked about getting new teeth but he...
—Oscar what the hell happened.
—Well this car, it's not new, I mean it wasn't new when I bought it and about a month ago the ignition switch broke and the garage didn't have one, they had to order a new one but it hasn't come in yet so they showed me how to start it by touching a wire from the coil to the battery and usually I stand beside it but this time...
—He was standing right in front of it Harry. When it started suddenly it slipped into Drive and I mean why were you standing in front of it Oscar, how could the...
—Because there was a puddle beside it and I didn't want my...
—Look nobody's asking him that, Christina. The insurance covers the owner of the car so he just sues the owner.
—But he owns it Harry, it's his car he owns it.
—The owner's insurance would probably go after the driver.
—But there wasn't any driver that's the point! The car ran over him and nobody was driving it.
—Let them worry about that, go after the car's maker for product liability, it couldn't have been in Drive or it wouldn't have started, probably the only proof they'd need, just the incident itself. Res ipsa loquitur Oscar, like the chandelier falling on your head. What kind of car is it.
—It's a Japanese car a red one, whatever got into him to buy a red one.
—When you buy a used car Christina you can't always choose the colour, I saw the ad in the paper and when I...
—Look Oscar I've got to get downtown, hope the next time I see you you're out playing baseball... with a clap on the supine shoulder and —I hope there's nothing under that bandage, you could have a nice lawsuit right there. Christina? I'll be late. Oh and Oscar? He was through the door, —don't sign anything.
—Why does he want to see me playing baseball? I've never, ow! What are you doing!
—Just cranking your bed up a little, laid out like that it's like talking to a corpse.
—Well stop it stop! It's fine it's, listen I've got five cracked ribs and this shoulder throbs like a, it's like a hot poker and my leg, I can't even...
—I know all that yes, you told me on the phone. Don't they give you anything for pain in this place? And these pillows...
—Please they're fine!
—I mean they don't seem to care what happens to you, lying around here in this slovenly mess. I've brought your robe and pajamas, at least you won't have to greet people wearing this shroud looking thing.
—Why do you say that.
—This shroud. And being laid out like a corpse.
—Well, you look like you're ready for the potato sack race, is that any better? And I mean does anyone? come to see you?
—That's what I'm telling you. Last night, a man in a black suit I thought he was a, that it was one of those pastoral visits but it wasn't, it was frightening, he ow!
—Well don't wriggle then, can't you just lie still? She'd snapped the sheet straight, tucked in the corner. —Who was it.
—Because this medication they give me, I think it's Demerol, it's as if there are holes in my memory and things that are happening to me are happening to somebody else, because all you really are is your memory and...
—Well who was it, a black suit Harry wears a black suit, black raincoat black shoes there's nothing frightening about Harry.
—I didn't say that Christina, that was just why I thought it was a pastoral call but he kept talking about taking messages to the other side and I, gradually all I could think of was that mysterious stranger calling on Mozart offering him money to compose a requiem when he asked me if I was a terminal case and offered me money to...
—Well my God of course it's these drugs they're giving you, just a hallucination nobody came offering you money to compose a requiem, now...
—He was here! He was here ask the nurse, call the nurse and...
—And he offered you money.
—To carry messages to the other side, yes.
—Yes well really! He puts ads in the papers, he reads the death notices and finds people who've lost a loved one and they pay fifty dollars to have a message delivered by somebody on his way to the other side when he gets there and we split it. I'd get twenty five for each message I took over and, I mean you would, once I'd departed, and then he asked me if I spoke Spanish and where the charity ward was where maybe he could find some Puerto Ricans, don't you see?
—I see nonsense, a lot of morbid nonsense.
—That mysterious stranger offering Mozart money to compose a requiem and he thought it was his own? for his own death? while he was trying desperately to finish The Magic Flute? Did you bring those papers? those notes I asked you for?
—Oscar you're not going to die, you're just banged up and how you expect to get anything done here flat on your back in the first place, it's as bad as that pain in your left arm when you were trying to finish that monograph on Rousseau and you were so worried about tenure? Because if you'd had a fatal heart attack it wouldn't have mattered whether you had tenure or not would it? She'd pulled forth the robe with its worn quilted facings and something beige all arms and legs from Hong Kong, reaching deep in the shopping bag for —these notes, it's all I could find the way you've piled things up in the library, those stacks of old newspapers why you can't simply clip something out instead of marking it with a red pencil and saving the whole paper, it's like everything else. The whole place looks disgraceful, not that anyone's coming to look at it. You hadn't even called that real estate woman.
—We have to talk about it Christina, the housing market is down and this whole inflationary...
—Talk about it, my God we've been talking about it for a hundred years since you used to jump out at me behind the door to the butler's pantry it's got nothing to do with the housing market, it's not a house, it's a place. Someone spending two million dollars isn't just looking for a...
—Two million four, we said two million four but...
—All right two million four! Do you expect two million four from somebody who's looking for a handyman's dreamhouse? Are you just going to lie here till somebody shows up and that veranda caves in on their heads then you'll have a lawsuit, since you seem to be getting so fond of them. Here's the mail. Where shall I put it.
—Anywhere just, where I can reach it, do you see my glasses?
—They're right here where I put them, with your precious newspapers. I thought we'd paid this plumber.
—I thought I'd wait till the end of the month when the...
—And these tree people? They should pay us, those broken limbs when you come up the drive, have you talked to them?
—Well I, not exactly, no.
—Not exactly? I mean either you've talked to them or you haven't.
—Well I called but the line was busy, it's all been, since you left trying to do everything there myself and get my own work done, it's been...
—How long does it take to write a check, you know you're going to pay sooner or later but you just can't part with it till you have to? I mean no one's asked you to do everything yourself Oscar really, since the day I got married you've behaved as though Harry had simply come in and stolen a good housekeeper from you. We are all kind of related now after all and you could make a little more of an effort with him, couldn't you? He's awfully busy in court today but he took the time to get this copy of Father's Opinion and come all the way up here to see you, like one of the family I mean wasn't that quite thoughtful?
—But he just doesn't look like anybody in the family, even on your mother's side, and I don't think Father...
—He met Father once, last year when he had to be in Washington, it wasn't awfully successful but that was hardly Harry's fault, was it? if you remember the shape Father was in? And I went out and got you a housekeeper after all, didn't I? Two of them, after you said the first one burned your socks, and what's happened to this new one? I didn't see a trace of her.
—If you'd like to see a trace of her look at that Sung vase in the sunroom. She put cold water in it for some blossom branches Lily brought over and of course it seeped through the terra cotta and completely destroyed the glaze. A thousand years go into that exquisite iridescent glaze and one coarse stupid woman can destroy it overnight.
—I'll look around for another one, now...
—Another one? Do you think you can just walk down the street and pick up a real Sung dynast...
—A housekeeper Oscar, another housekeeper, and what Lily's doing bringing over blossom branches in the first place, aren't things in enough of a mess there without blossom branches? You complain about disorder and then open the door for chaos herself, I mean she certainly doesn't look like anyone in the family if that's what you have in mind, driving in there this morning in a new BMW as if she owned the place. She'll probably show up here any minute. I told her what happened.
—A new BMW?
—You're lying here smashed to a pulp by that second hand wreck while she's driving around in a...
—No but whose BMW?
—Well I certainly didn't ask her, I mean I certainly don't want to know, do you? Think about it Oscar, because I should think you might after all, a breezy blouse half unbuttoned, blonde hair flying and enough lipstick to paint a barn I'm putting the mail right here. I'll bring checks, I'm sure you don't have any. Who is John Knize.
—Who is who?
—There's a letter here from someone named John Knize. Shall I open it?
—Oh, no that's probably just someone who...
—Dear Professor Crease, he's got one of those awful typewriters that writes in script. Perhaps my earlier letter did not reach you. I am researching material for a book on the Holmes Court, of which I understand your grandfather, Justice Thomas Crease, was a colourful member, well known for his conflicts with his associate Justice Holmes though it was said they were warm friends through their shared youthful experience in the Civil War, both having suffered wounds, I understand, at Ball's Bluff and Antietam. Since your grandfather lived to age ninety six it occurred to me that you might well have known him as a small child and, you're not planning to see this person are you?
—I just thought it might help to...
—Well whatever you thought, just remember people don't come out of nowhere to help you, people help themselves, I mean you don't picture sitting down with this utter stranger telling him how Grandfather dandled you on his knee when you were five and rattled on about the Civil War? These papers you had me drag in here because you're afraid somebody's stealing it from you and Harry's right isn't he, the rest of it's nothing but opera. I'm the Queen of the Night and here's your mysterious messenger haunting the wards for a terminal case, wheedling a requiem for the old Count to pretend he composed himself, trying to frighten me when we were children saying you'd come back and haunt the place the way I felt out there this morning, the mist just lifting from the pond and suddenly the swans, a whole fleet of them coming by as still, as still, and across the pond those reds and russets...
—Where the sedge is withered from the...
—Well exactly! the letter she'd been crumpling gone to the floor as she stood.—Alone and palely loitering, I mean if Keats could see you now. How long do they plan to keep you here.
—They don't know yet. Could you hand me my glasses? It depends on when I can walk again if I can, if I can Christina, they don't even know that yet.
—Well I hope they don't plan to turn you loose till you can, do they expect you to ride around that house in a wheelchair without breaking your neck? She reached down to where he'd just put on his glasses with some difficulty, and took them off. —Can you see through these things at all? dipping a tissue in the water glass —let alone read through them, doesn't it ever occur to you to do this yourself? and she set the sparkling lenses back astride his nose —though this bandage hardly helps. Will there be a scar?
—Probably, they said...
—Poor Oscar. She stooped to kiss his forehead. —It may give your face a little character, like Heidelberg. I'll start digging up another housekeeper.
—Yes but, Christina? If Harry doesn't mind I mean, or if he's away or anything? I just thought maybe you could come back out there and spend a little time with me? Just until, and wait, this creamed ham they gave us last night...
—We'd still need a housekeeper, oh and I meant to tell you, Trish sends love, Trish Hemsley? She's quite fond of you you know, it's a shame you never pursued it Oscar, she could be such a help. You don't mind if I take these? folding together the crinkled paper slippers she'd just found on the night table, —I mean it's not as though you're going anywhere? sweeping back the curtain, past the lively concert of traffic backed up for seven miles at the eastbound entrance to the George Washington bridge for an overturned tractor trailer, seizing the arm of a nurse passing the door with —the far bed in there, Mister Crease? He's rather anxious about the supper menu, and whatever this medication you're giving him I wish you'd check with the doctor, he's seeing little men in black suits coming in asking him to carry messages to the other side and he's not even packed... on up the corridor and —oh my God.,.too late to turn elsewhere, —hello Lily.
—Oh! Is he okay?
—If he were okay would he be here? Six twelve B, do try not to tire him.
—Oh yes I, but Christina?
—What is it.
—Just, I just wish you liked me.
—So do I Lily.
612 B: past the horn concerto on tiptoe with an apologetic gasp, bursting past the curtain with —oh Oscar! Are you okay? and a lipstick smear on the bandage. —Does it hurt?
—Where, the bandage on your face?
—Oh Oscar. Can I get you anything? I was going to bring you flowers but then I saw I only had four dollars.
—Look in my wallet. In that drawer in the night table, Lily?
—Yes, yes can I get you anything?
—Where did you get a new BMW.
—Where did you hear that. Is fifty all right?
—Christina says you drove up to the house in a new BMW.
—It's just this person I borrowed it from Oscar. To come over and see you, I only wish she didn't dislike me so much. She just always makes me feel like a, she's so superior and smart and her clothes, she's just always so attractive for somebody her age and...
Her hand fluttered by and he caught it. —It's just that you're a little young, I think she worries about you, this divorce and your problem with your family, and the...
—It's not my fault! She recovered her hand, —is it Oscar? Because that's what I have to talk to you about.
—What's happened now.
—Because it's this lawyer. She wants another twenty five hundred dollars Oscar I just don't know what to do.
—Twenty five hun, but we gave her a three thousand dollar retainer after we paid off the first one.
—Yes but now she says I still owe her this twenty five hundred more dollars or she won't release all these papers.
—All what papers, where.
—To this other lawyer. Because since she withdrew from the case and I need another lawyer she said this new one can't be the attorney of record unless I pay her and she gives back all these papers.
—No wait what do you mean, she withdrew from the case.
—Because she said you've kept interfering writing her all these letters and calling her up and telling her what to do about the separation agreement and everything so she's withdrawing from the case, it's not my fault is it?
—Well she can't. She can't Lily, she can't withdraw just like that. Fifty five hundred dollars for what has she done, that long garbled separation agreement she couldn't wait to give away everything in sight and even that isn't signed, it's ridiculous. She can't.
—But I asked this new lawyer and he says she can Oscar.
—What new lawyer.
—Well I thought I'd get a man one again, like before, so...
—It's ridiculous, no. No, we can take it to arbitration, take the whole thing before a grievance committee and...
—But he said those committees are just all these other lawyers so they have to protect each other because they may be next so...
—Who said! And what if she can quit, listen I don't even know what these hospital bills will be, an insurance man's coming up here later and I'm not even sure that they'll pay, can't you ask your brother? I'm afraid to write a check for a dollar, all this money he's getting from your father so the government can't get it, can't you ask Bobbie?
—Bobbie wants to buy a Porsche... Her head came down to rest on the edge of the bed, —I just get so tired, Oscar... and her hand followed, burrowing under the sheet. —It's just all Bobbie, it's everything for Bobbie, they won't even talk to me and they've joined some church down there, that's the only letter they've sent me about how glorious it is to be saved and how happy I'd be if I'd just accept the Lord while this woman that stole my purse is out there someplace pretending she's me with all my credit cards and everything where she used my bank credit card before I could stop it so these other real checks I wrote bounced, I can't even identify myself and she's buying these plane tickets she could be in Paris right now being me and I don't even know what I'm doing there till I get this bill for these lizard skin shoes I bought at some store in Beverly Hills where I always wanted to go, and it's spooky.
His hand had come down to smooth her hair, a finger limned her ear, traced her brow; hers came deeper, soothing a rise there under the sheet. —We'll get it straightened out as soon as...
—She'll find out it's not so easy being me though, that it's not as much fun being me as she thought, does this hurt?
—Just, be careful, I...
—Mommy kiss and make it well?
—Not, not here no, no not now...
—But won't it make you feel better? Where's a tissue, I'll get rid of this lipstick.
—Not, not now no, a nurse might come in and...
—We can just pretend I'm down straightening the sheet...
There was a great thump on the curtain. —Hey there!
—What's the, who...
—Send her over here!
—Who do you, what are you talking about!
—She knows! and another thump on the curtain, —if you don't know then send her over here. Hey, Mommy?
—Of all the damned, ow!
—Oscar don't try to, just be still I think somebody's coming. I better go anyway.
—Wait who is it.
—Just this man Oscar, I better go. I'll see you real soon.
—What man. In a black suit? Lily wait, how are you getting home.
—This car I borrowed.
—But wait, whose is it.
—This new lawyer... and she squeezed his hand, left a blot of lipstick on it and brushed past the curtain, past the next bed with a heated whisper, —You dirty man.
And from the doorway, —Mister Crease?
—Back here, wait. Wait who is it...
—Frank Gribble, Ace Worldwide Fidelity, may I come in? in a black suit, —how are we feeling. May I sit down? and he'd done so, flattening a plastic portfolio on his lap, —I hope you're not in pain? and he had out a yellow pad, —now. Let's not take too much of your valuable time, Mister Crease. If you can just tell me what happened.
—Of course I can, I...
—In your own words.
—Well of course. The car's ignition was not working. I had to start it by opening the hood and touching a wire from the coil to the positive post on the battery.
—I believe that's what they call hot wiring. We constantly have reports of cars stolen that way, please go on.
—This is my car Mister Gribble.
—Oh yes, yes I didn't mean...
—The car was in Park. I touched the wire, the engine started, it slipped into Drive and ran over me.
—I see. Then we assume you must have been standing in front of the car? Why were you standing in front of the car, Mister Crease.
—Because there was a mud puddle beside the car Mister Gribble, and I felt it wise not to risk the combination of water and electricity. But all this is irrelevant isn't it. The insurance covers the car's owner, doesn't it?
—But I understand you are the owner.
—I am also the victim Mister Gribble. Now I believe that the usual course would be for the owner's insurance to pursue the driver, but...
—But I understand no one was driving it.
—Which I suppose would leave you the alternative of suing the maker for product liability? It slipped from Park into Drive of its own accord didn't it? If it had been in Drive at the outset it wouldn't have started at all. Res ipsa loquitur Mister Gribble, as clear as the chandelier falling on your head.
—Yes well it might be a little difficult, if we could dig up some similar cases and we'd need to examine the car, wouldn't we.
—Examine the car of course, I only want justice after all.
—It's garaged at your, at the place of the accident I can't find the, what kind of car is it.
—I'm being quite serious Mister Crease.
—So am I! It's a Japanese car, a Sosumi.
—Oh. Oh dear, yes I'm sorry, it's so hard to keep track of them all nowdays. We had a whole family killed last week in an Isuyu and I made a similar error. I think we've covered all the preliminaries Mister Crease, I don't want to tire you. You'll hear from us promptly, I don't think there should be any problem about your hospital bills here and I may even be able to squeeze in your television rental without anybody noticing, no sir. Our only problem now is getting you the very best care, if you'll just sign this right here at the bottom and we'll have you up in no time ready to go out and, here's a pen...
—And play baseball?
—Right at the bottom there yes, just a formality.
—Quite a lengthy formality, Mister Gribble. I don't sign things I haven't read.
—Oh, if you, go right ahead. I just didn't want to take up your time, I saw the supper cart in the hall and I think you have quite a surprise coming. I'll just read the newspapers here while you...
—You'd better just leave it with me, some other things I've got to take care of first, those papers right there on the night table, if you'll hand them to me?
—This? It looks like something legal, I should have guessed. You're a lawyer, Mister Crease?
—Thank you. No, I dabble in it, Mister Gribble, I only dabble. Good night.
—You only dabble, do you? came from behind the curtain over eager revelations of a six car collision on Route 4. —Like a little dab of that myself, that was some hot number.
—A little dab'll do you, a little dab'll...
—Shut up! and he settled back into the pillows, squaring his glasses as best he could, managing some sagging measure of dignity commensurate with the pages before him. And so we may as well begin this sad story with the document that has set things off or, better, that merely paced the events that follow, spattered as it was all over the newspapers, since it had nothing directly to do with them, much less its remote participants, distant in every way but the historic embrace of the civil law in its majestic effort to impose order upon? or is it rather to rescue order from the demeaning chaos of everyday life in this abrupt opportunity, as Christina has it, to be taken seriously before the world, in an almost inverse proportion to their place in it, their very names in fact and the inconsequential nature of their original errands, like that woman intending no farther than Far Rockaway suddenly lofted to landmark status by Justice Cardozo in Palsgraf v. Long Island Railroad, or the mere passerby rendered eternal by Baron Pollack in Byrne v. Boadle beaned by a barrel of flour whence the doctrine of res ipsa loquitur tendered by Harry in an image more suiting those unnatural persons mounting, in an almost inverse proportion to the millions, billions in settlements, the frivolous legal heights of corporate anonymity, in Harry's hands become the chandelier he's dropped here in Oscar's path, arching his good knee, squaring the pillow, his glasses again, licking a thumb to flick over the cover page of Szyrk v. Village of Tatamount et al., U.S. District Court, Southern District of Virginia No. 105-87, haunted by the sense that 'reality may not exist at all except in the words in which it presents itself.'
The facts are not in dispute. On the morning of September 30 while running at large in the Village a dog identified as Spot entered under and therewith became entrapped in the lower reaches of a towering steel sculpture known as Cyclone Seven which dominates the plaza overlooking and adjoining the depot of the Norfolk & Pee Dee Railroad. Searching for his charge, the dog's master James B who Is seven years old was alerted by its whines and yelps to discover its plight, whereupon his own vain efforts to deliver it attracted those of a passeroy soon joined by others whose combined attempts to wheedle, cajole, and intimidate the unfortunate animal forth served rather to compound its predicament, driving it deeper into the structure. These futile activities soon assembled a good cross section of the local population, from the usual idlers and senior citizens to members of the Village Board
, the Sheriff's office, the Fire Department, and, not surprisingly, the victim's own kind, until by nightfall word having spread to neighboring hamlets attracted not only them in numbers sufficient to cause an extensive traffic jam but members of the local press and an enterprising television crew. Notwithstanding means successfully devised to assuage the dog's pangs of hunger, those of its confinement continued well into the following day when the decision was taken by the full Village Board to engage the Fire Department to enter the structure employing acetylene torches to effect its safe delivery, without considering the good likelihood of precipitating an action for damages by the creator of Cyclone Seven, Mr Szyrk, a sculptor of some wide reputation in artistic circles.
Alerted by the media to the threat posed to his creation, Mr Szyrk moved promptly from his SoHo studio in New York to file for a temporary restraining order 'on a summary showing of its necessity to prevent immediate and irreparable injury' to his sculptural work, which was issued ex parts even as the torches of deliverance were being kindled. All this occurred four days ago.
Given the widespread response provoked by this confrontation in the media at large and echoing as far distant as the deeper South and even Arkansas but more immediately at the site itself, where energies generated by opposing sympathies further aroused by the police presence and that of the Fire Department in full array, the floodlights, vans, and other paraphernalia incident to a fiercely competitive television environment bringing in its train the inevitable placards and displays of the American flag, the venders of food and novelty items, all enhanced by the barks and cries of the victim's own local acquaintance, have erupted in shoving matches, fistfights, and related hostilities with distinctly racial overtones (the dog's master James B and his family are black), and finally in rocks and beer cans hurled at the sculpture Cyclone Seven itself, the court finds sufficient urgency in the main action of this proceeding to reject defendants' assertions and cross motions for the reasons set forth below and grants summary judgment to plaintiff on the issue of his motion for a preliminary injunction to supersede the temporary restraining order now in place.
To grant summary judgment, as explicated by Judge Stanton in Steinberg v. Columbia Pictures et al., Fed. R. Civ. P. 56 requires a court to find that 'there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' In reaching its decision the court must 'assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party' (Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11, 2d Circ, 1986, citing Anderson v. Liberty Lobby, 106 S.Ct. 2505, 2509-11,1986). In plaintiff's filing for a restraining order his complaint alleges, by counts, courses of action to which defendants have filed answers and cross claims opposing motion for a preliminary injunction. The voluminous submissions accompanying these cross motions leave no factual issues concerning which further evidence is likely to be presented at a trial. Moreover, the factual determinations necessary to this decision do not involve conflicts in testimony that would depend for their resolution on an assessment of witness credibility as cited infra. The interests of judicial economy being served by deciding the case at its present stage, summary judgment is therefore appropriate.
Naming as defendants the Village Board, the dog's master James B through his guardian ad litem, 'and such other parties and entities as may emerge in the course or this proceeding,' Mr szyrk first alleges animal trespass, summoning in support of this charge a citation from early law holding that 'where my beasts of their own wrong without my will and knowledge break another's close I shall be punished, for I am the trespasser with my beasts' (12 Henry VII, Kielwey 3b), which exhibit the court, finding no clear parallel in the laws of this Commonwealth, dismisses as ornamental. Concerning plaintiff's further exhibit of Village Code 21 para. 6b (known as 'the leash law'), we take judicial notice of defendants' response alleging that, however specific in wording and intent, this ordinance appears more honored in the breach, in that on any pleasant day well known members of the local dog community are to be observed in all their disparity of size, breed, and other particulars ambling in the raffish camaraderie of sailors ashore down the Village main street and thence wherever habit and appetite may take them undeterred by any citizen or arm of the law. Spot, so named for the liver colored marking prominent on his loin, is described as of mixed breed wherein, from his reduced stature, silken coat, and 'soulful' eyes, that of spaniel appears to prevail. His age is found to be under one year. Whereas in distinguishing between animals as either mansuetae or ferae naturae Spot is clearly to be discovered among the former vby custom devoted to the service of mankind at the time and in the place in which It is kept' and thus granted the indulgence customarily accorded such domestic pets, and further whereas as in the instant case scienter is not required (Weaver v. National Biscuit Co., 125 F.2d 463, 7th Circ, 1942; Parsons v. Manser, 119 Iowa 88, 93 N.W. 86,1903), such indulgence is indicative of the courts' retreat over the past century from strict liability for trespass (Sanders v. Teape & Swan, 51 L.T. 263, 1884; Olson v. Pederson, 206 Minn. 415, 288 N.W. 856,1939), we find plaintiff's allegation on this count without merit (citation omitted).
On the related charge of damages brought by plaintiff the standard for preliminary relief must first be addressed. Were it to be found for plaintiff that irreparable harm has indeed been inflicted upon his creation, and that adequate remedy at law should suffice in the form of money damages, in such event the court takes judicial notice in directing such claim to be made against the Village Board and the dog's master in tandem, since as in the question posed by the Merchant of Venice (I, iii, 122) 'Hath a dog money?' the answer must be that it does not. However, as regards the claim that the dog Spot, endowed with little more than milk teeth however sharp, and however extreme the throes of his despair, can have wreaked irreparable harm upon his steel confines this appears to be without foundation. Further to this charge, defendants respond, and the court concurs, citing plaintiff's original artistic intentions, that these steel surfaces have become pitted and acquired a heavy patina of rust following plaintiff's stated provision that his creation stand freely exposed to the mercy or lack thereof of natural forces, wherewith we may observe that a dog is not a boy, much less a fireman brandishing an acetylene torch, but nearer in its indifferent ignorance to those very forces embraced in the pathetic fallacy and so to be numbered among them. We have finally no more than a presumption of damage due to the inaccessibility of this inadvertent captive's immediate vicinity, and failing such evidentiary facts we find that the standards for preliminary relief have not been met and hold this point moot.
Here we take judicial notice of counterclaims filed on behalf of defendant James B seeking to have this court hold both plaintiff and the Village and other parties thereto liable for wilfully creating, installing and maintaining an attractive nuisance which by its very nature and freedom of access constitutes an allurement to trespass, thus enticing the dog into its present allegedly dangerous predicament. Here plaintiff demurs, the Village joining in his demurrer, offering in exhibit similar structures of which Cyclone Seven is one of a series occupying sites elsewhere in the land, wherein among the four and on only one occasion a similar event occurred at a Long island, New York, site in the form of a boy similarly entrapped and provoking a similar outcry until a proffered ten dollar bill brought him forth little the worse. However, a boy is not a dog, and whereas in the instant case Cyclone Seven posed initially a kind of ornate 'jungle gym' to assorted younger members of the community, we may find on the part of Spot absent his testimony neither a perception of challenge to his prowess at climbing nor any aesthetic sensibility luring him into harm's way requiring a capacity to distinguish Cyclone Seven as a work of art from his usual environs in the junk yard presided over by defendant James B's father and guardian ad litem, where the progeny of man's inventiveness embraces three acres of rusting testimony thereto, and that hence his trespass was entirely inadvertent and in good likelihood dictated by a mere call of nature as abounding evidence of similar casual missions on the part of other members of the local dog community in the sculpture's immediate vicinity attest.
In taking judicial notice of defendant's counterclaim charging allurement we hold this charge to be one of ordinary negligence liability, already found to be without merit in this proceeding; however, we extend this judicial notice to embrace that section of plaintiff's response to the related charge of dangerous nuisance wherein plaintiff alleges damage from the strong hence derogatory implication that his sculptural cr9ation, with a particular view to its internal components, was designed and executed not merely to suggest but to actually convey menace, whereto he exhibits extensive dated and annotated sketches, drawings, and notes made, revised, and witnessed in correspondence, demonstrating that at no time was the work, in any way or ways as a whole or in any component part or parts or combinations thereof including but not limited to sharp planes, spirals, and serrated steel limbs bearing distinct resemblances to teeth, ever in any manner conceived or carried out with intent of entrapment and consequent physical torment, but to the contrary that its creation was inspired and dictated in its entirety by wholly artistic considerations embracing its component parts in an aesthetic synergy wherein the sum of these sharp planes, jagged edges and toothlike projections aforementioned stand as mere depictions and symbols being in the aggregate greater than the sum of the parts taken individually to serve the work as, here quoting the catalogue distributed at its unveiling, 'A testimony to man's indiminable ls/c] spirit.'
We have in other words plaintiff claiming to act as an instrument of higher authority, namely 'art,' wherewith we may first cite its dictionary definition as '(1) Human effort to imitate, supplement, alter or counteract the work of nature.' Notwithstanding that Cyclone Seven clearly answers this description especially in its last emphasis, there remain certain fine distinctions posing some little difficulty for the average lay observer persuaded from habit and even education to regard sculptural art as beauty synonymous with truth in expressing harmony as visibly incarnate in the lineaments of Donatello's David, or as the very essence of the sublime manifest in the Milos Aphrodite, leaving him in the present instance quite unprepared to discriminate between sharp steel teeth as sharp steel teeth, and sharp steel teeth as artistic expressions of sharp steel teeth, obliging us for the purpose of this proceeding to confront the theory that in having become self referential art is in itself theory without which it has no more substance than Sir Arthur Eddington's famous step 'on a swarm of flies,' here present in further exhibits by plaintiff drawn from prestigious art publications and highly esteemed critics in the lay press, where they make their livings, recommending his sculptural creation in terms of slope, tangent, acceleration, force, energy and similar abstract extravagancies serving only a corresponding self referential confrontation of language with language and thereby, in reducing language itself to theory, rendering it a mere plaything, which exhibits the court finds frivolous. Having here in effect thrown the bathwater out with the baby, in the clear absence of any evidentiary facts to support defendants' countercharge 'dangerous nuisance/ we find it without merit. We next turn to a related complaint contained in defendant James B's cross claim filed in rem Cyclone Seven charging plaintiff, the Village, 'and other parties and entities as their interests may appear' with erecting and maintaining a public nuisance In the form of'an obstruction making use of passage inconvenient and unreasonably burdensome upon the general public' (Fugate v. Carter, 151 Va. 108,144 S.E. 483,1928; Regester v. Lincoln Oil Ref. Co., 95 ind,App. 425,183 N.E. 693,1933). As specified in this complaint, Cyclone Seven stands 24 feet 8 inches high with an irregular base circumference of approximately 74 feet and weighs 24 tons, and in support of his allegation of public nuisance defendant cites a basic tenet of early English law defining such nuisance as that 'which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects,' further citing such nuisance as that which injuriously affects the safety, health or morals of the public, or works some substantial annoyance, inconvenience or injury to the public' (Commonwealth v. South Covington & Cincinnati Street Railway Co., 181 Ky. 459, 463, 205 SW 581, 583, 6 A.L.R. 118, 1918). Depositions taken from selected Village residents and submitted in rem Cyclone Seven include: We'd used to be this nice peaceable town before this foreigner come in here putting up this (expletive] piece of (obscenity) brings in every [expletive] kind of riffraff, even see some out of state plates'; 'Since that [expletive] thing went up there I have to park my pickup way down by Ott's and walk all hell and gone just for a hoagie'; let's just see you try and catch a train where you can't hardly see nothing for the rain and sleet and you got to detour way round that heap of (obscenity] to the depot to get there'; 'I just always used the men's room up there to the depot but now there's times when I don't hardly make it'; They want to throw away that kind of money I mean they'd have just better went and put us up another (expletive] church.'
Clearly from this and similar eloquent testimony certain members of the community have been subjected to annoyance and serious inconvenience in the pursuit of private errands of some urgency; however recalling to mind that vain and desperate effort to prevent construction of a subway kiosk in Cambridge, Massachusetts, enshrined decades ago in the news headline PRESIDENT LOWELL FIGHTS ERECTION IN HARVARD SQUARE, by definition the interests of the general public must not be confused with that of one or even several individuals (People v. Brooklyn & Queens Transit Corp., 258 App.Div. 753,15 N.Y.S.2d 295,1939, affirmed 283 N.Y. 484, 28 N.E.2d 925,1940); furthermore the obstruction is not so substantial as to preclude access (Holland v. Grant County, 208 Or. 50, 298 P.2d 832, 1956; Ayers v. Stidham, 260 Ala. 390, 71 So.2d 95, 1954), and in finding the former freedom of access to have been provided by mere default where no delineated path or thoroughfare was ever ordained or even contemplated this claim is denied.
On a lesser count charging private nuisance, H R Suggs Jr, joins himself to this proceeding via intervention naming all parties thereto in his complaint on grounds of harboring a dog 'which makes the night hideous with its howls' which the court severs from this action nonetheless taking judicial notice of intervener's right inseparable from ownership of the property bordering directly thereupon, to its undisturbed enjoyment thereof (Restatement of the Law, Second, Torts 2d, 822c), and remands to trial. Similarly, whereas none of the parties to this action has sought relief on behalf of the well being and indeed survival of the sculpture's unwilling resident, and whereas a life support system of sorts has been devised pro tem thereto, this matter is not at issue before the court, which nonetheless, taking judicial notice thereof should it arise in subsequent litigation, leaves it for adjudication to the courts of this local jurisdiction.
We have now cleared away the brambles and may proceed to the main action as set forth in plaintiff's petition for a preliminary injunction seeking to hold inviolable the artistic and actual integrity of his sculptural creation Cyclone Seven in situ against assault, invasion, alteration, or destruction or removal or any act posing irreparable harm by any person or persons or agencies thereof under any authority or no authority assembled for such purpose or purposes for any reason or for none, under threat of recovery for damages consonant with but not limited to its original costs. While proof of ownership is not at issue in this proceeding, parties agree that these costs, including those incident to its installation, in the neighborhood of fourteen million dollars, were borne by contributions from various private patrons and underwritten by such corporate entities as Martin Oil, Incidental Oil, Bush AFC Corp., Anco Steel, Norfolk & Pee Dee Railroad, Frito-Cola Bottling Co., and the Tobacco Council, further supported with cooperation from the National Arts Endowment and both state and regional Arts Councils. The site, theretofore a weed infested rubble strewn area serving for casual parking of vehicles and as an occasional dumping ground by day and trysting place by night, was donated under arrangements worked out between its proprietor Miller Feed Co. and the Village in consideration of taxes unpaid and accrued thereon over the preceding thirty-eight years. In re the selection of this specific site plaintiff exhibits drawings, photographs, notes and other pertinent materials accompanying his original applications to and discussions with the interested parties aforementioned singling out the said site as 'epitomizing that unique American environment of moral torpor and spiritual vacuity' requisite to his artistic enterprise, together with correspondence validating his intentions and applauding their results. Here we refer to plaintiff's exhibits drawn from contemporary accounts in the press of ceremonies inaugurating the installation of Cyclone Seven wherein it was envisioned as a compelling tourist attraction though not, in the light of current events, for the reasons it enjoys today. Quoted therein, plaintiff cites, among numerous contemporary expressions of local exuberance, comments by then presiding Village Board member J Harret Ruth at the ribbon cutting and reception held at nearby Mel's Kandy Kitchen with glowing photographic coverage, quoting therefrom the time, the place, and the dedication of all you assembled here from far and wide, the common people and captains of industry and the arts rubbing elbows in tribute to the patriotic ideals rising right here before our eyes in this great work of sculptural art.'
Responding to plaintiff's exhibits on this count, those of defendant appear drawn well after the fact up to and including the present day and provoked (here the court infers) by the prevailing emotional climate expressed in, and elicited by, the print and television media, appending thereto recently published statements by former Village official J Harret Ruth in his current pursuit of a seat on the federal judiciary referring to the sculptural work at the center of this action as 'a rusting travesty of our great nation's vision of itself and while we may pause to marvel at his adroitness in ascertaining the direction of the parade before leaping in front to lead it we dismiss this and supporting testimony supra as contradictory and frivolous, and find plaintiff's exhibits in evidence persuasive.
Another count in plaintiff's action naming defendants both within and beyond this jurisdiction seeks remedy for defamation and consequent incalculable damage to his career and earning power derived therefrom (Reiman v. Pacific Development Soc, 132 Or. 82, 284 P. 575, 1930; Brauer v. Globe Newspaper Co., 351 Mass. 53, 217 N.E.2d 736,1966). It is undisputed that plaintiff and his work, as here represented by the steel sculpture Cyclone Seven, have been held up to public ridicule both locally and, given the wide ranging magic of the media, throughout the land, as witnessed in a cartoon published in the South Georgia Pilot crudely depicting a small dog pinioned under a junk heap comprising old bedsprings, chamber pots, and other household debris, and from the Arkansas Family Visitor an editorial denouncing plaintiff's country of origin as prominent in the Soviet bloc, thereby distinctly implying his mission among us to be one of atheistic subversion of our moral values as a Christian nation, whereas materials readily available elsewhere show plaintiff to have departed his birthplace at age three with his family who were in fact fleeing the then newly installed Communist regime. We take judicial notice of this exhibit as defamatory communication and libellous per se, tending to lower him in the estimation of the community or to deter third persons from associating or dealing with him' (Restatement of the Law, Second, Torts 2d, 559), but it remains for plaintiff to seek relief in the courts of those jurisdictions.
Similarly, where plaintiff alleges defamation in this and far wider jurisdictions through radio and television broadcast we are plunged still deeper into the morass of legal distinctions embracing libel and slander that have plagued the common law since the turn of the seventeenth century. As slander was gradually wrested from the jurisdiction of the ecclesiastical courts through tort actions seeking redress for temporal damage rather than spiritual offense, slander became actionable only with proof or the reasonable assumption of special damage of a pecuniary character. Throughout, slander retained its identity as spoken defamation, while with the rise of the printing press it became libel in the written or printed word, a distinction afflicting our own time in radio and television broadcasting wherein defamation has been held as libel if read from a script by the broadcaster (Hartmann v. Winchell, 296 N.Y. 296, N.E.2d 30,1947; Hryhorijiv v. Winchell, 1943,180 Misc. 574,45 N.Y.S.2d 31, affirmed, 267 App.Div. 817, 47 N.Y.S.2d 102, 1944) but as slander if it is not. But see Restatement of the Law, Second, Torts 2d, showing libel as 'broadcasting of defamatory matter by means of radio or television, whether or not it is read from a manuscript' (#568A). Along this tortuous route, our only landmark in this proceeding is the aforementioned proof or reasonable assumption of special damage of a pecuniary character and, plaintiff failing in these provisions, this remedy is denied.
in reaching these conclusions, the court acts from the conviction that risk of ridicule, of attracting defamatory attentions from his colleagues and even raucous demonstrations by an outraged public have ever been and remain the foreseeable lot of the serious artist, recalling among the most egregious examples Ruskin accusing Whistler of throwing a paint pot in the public's face, the initial scorn showered upon the Impressionists and, once they were digested, upon the Cubists, the derision greeting Bizet's musical innovations credited with bringing about his death of a broken heart, the public riots occasioned by the first performance of Stravinsky's Rite of Spring, and from the day Aristophanes labeled Euripides 'a maker of ragamuffin mannequins' the avalanche of disdain heaped upon writers: the press sending the author of Ode on a Grecian Urn 'back to plasters, pills, and ointment boxes,' finding Ibsen's Ghosts 'a loathsome sore unbandaged, a dirty act done publicly' and Tolstoy's Anna Karenina 'sentimental rubbish,' and in our own land the contempt accorded each succeeding work of Herman Melville, culminating in Moby Dick as 'a huge dose of hyperbolical slang, maudlin sentimentalism and tragic-comic bubble and squeak,' and since Melville's time upon writers too numerous to mention. All this must most arguably in deed and intent affect the sales of their books and the reputations whereon rest their hopes of advances and future royalties, yet to the court's knowledge none of this opprobrium however enviously and maliciously conceived and however stupid, careless, and ill informed in its publication has ever yet proved grounds for a successful action resulting in recovery from the marplot. In short, the artist is fair game and his cause is turmoil. To echo the words of Horace, Pictoribus atque poetis quidlibet audendi semper fuit aequa potestas, in this daring invention the artist comes among us not as the bearer of idées reçues embracing art as decoration or of the comfort of churchly beliefs enshrined in greeting card sentiments but rather in the aesthetic equivalent of one who comes on earth 'not to send peace, but a sword.'
The foregoing notwithstanding, before finding for plaintiff on the main action before the court set forth in his motion for a preliminary injunction barring interference of any sort by any means by any party or parties with the sculptural creation Cyclone Seven the court is compelled to address whether, following such a deliberate invasion for whatever purpose however merciful in Intent, the work can be restored to Its original look in keeping with the artist's unique talents and accomplishment or will suffer irreparable harm therefrom. Bowing to the familiar adage Cuilibet In arte sua perito est credendum, we hold the latter result to be an inevitable consequence of such invasion and such subsequent attempt at reconstitution at the hands of those assembled for such purposes in the form of members of the local Fire Department, whose training and talents such as they may be must be found to lie elsewhere, much In the manner of that obituary upon our finest poet of the century wherein one of his purest lines was reconstituted as 'l do not think they will sing to me' by a journalist trained to eliminate on sight the superfluous that.'
For the reasons set out above, summary judgment is granted to plaintiff as to preliminary injunction.
They heard the racket before she got out of the car, through the rain running up the wet steps of that veranda to tug at the door, down the hall past the library and into the sunroom with —Oscar! What's going on!
—Well stop thrashing around, you could tip that thing over and hurt yourself. I mean what are you trying to do.
—Hurt myself! What do you think I, where is she what does it look like. She sat me here in a draft and just left me here and the rain starts I've been trying to close this damned, damned...
—Yes all right just, if you'll just relax and let me wait, will you just let go of it! She twisted the cane's handle free of the blind's louvers where he'd thrust it through trying to snag the catch on the casement window, —there. And she got it closed. —Did it occur to you to simply move your chair out of the...
—Did it occur to you that the damned thing won't move? The wheels locked or something, maybe it's the battery. Can you make me some tea?
—My God, you do have trouble with vehicles don't you, where is she, what's her name.
—If I knew where she was do you think I'd been sitting here in the rain? She hates that little room you've put her in I'll tell you that Christina.
—I'll put her in your old room on the top floor when you were a little boy, she can go up there and play with your rock collection, just turn your head a little. No, this way.
—It's not bad at all is it, your scar. You'd hardly notice it.
—You'll notice it, I just have to ask Harry, I thought he was coming out with you.
—He's getting some things from the car Oscar listen, before he comes in, he doesn't want to make a Federal case of it but these phone calls you've been making to his office, he's been terribly busy and he just can't put up with them. He even said that you'd...
—Well if that's what he, if he hasn't even got time to...
—No but that's what he said Oscar, it isn't his time, it's their time, the law firm's time, they charge their clients for fifteen minutes if they talk for three he'll explain it to you, it's...
—Their clients? I thought he was my brother in law, I thought you wanted me to make him feel like a member of the family, isn't that what you do if you're a member of the family? help out when somebody in the family needs your advice?
—But that's the point Oscar, you're not a client, you're not paying them for his advice, that's why he's come out here today, a Sunday, he brings work home, he eats late, this case he's been working on it's in the millions of dollars it's been going on for years, he hasn't a minute to himself he said you'd even asked him to go to this movie for you we just haven't had the time. That's why we're late getting out here now, he had to make some calls before we left and I told the garage to bring the car around while I got your groceries together and I'd meet him in front of the building, and of course it was raining...
And of course they'd both been out there, waiting in the rain by the time the car appeared, the grocery bag already split down the side. He'd drive, he told her, get it over with and make an early start back, —and you? You've decided to stay out there?
—My God Harry I don't know, my coat's caught in the door here can you wait? She got it open, slammed it and —I won't know till we've seen him. He's been out of the hospital for three days and he's already got everything in a turmoil, that nine hundred dollar chair I got for him he'll probably break his neck in it and this woman I brought in, white columnar thighs to break a bull's back isn't that what you said once? Whether she can cook but she may get his mind off of Lily long enough to be careful! She'd seized the dashboard, clinging there with a tremor —my God...
—Did you see that?
—No but please just, be careful...
—Did you see that? his knuckles gone white on the wheel, —steps right in front of the car and holds up his hand, did you see that?
—God Harry just be careful. They're crazy. I mean you're the one who told me that aren't you? take for granted everybody in this city's crazy till they show you otherwise? You could have killed him.
—Better than just knocking him down, see a car like this one they know how much liability you're carrying and you're in court for the rest of your life.
—Just the rage. If you saw his eyes, that's what this city runs on, where it gets its energy. Rage.
—It's the money, Christina. The rest of it's...
—It's not The Marriage of Figaro I'll tell you that. She's got a new lawyer for her mess of a divorce who wants to handle Oscar's accident, shock, injury, loss of income, disfigurement, a million, five, God knows what nonsense, you said he's called you?
—Called me? sweeping up the avenue through the burst of a cab's horn so close she started, freed into traffic lifting both hands from the wheel for a gesture —called me! I told you, look Christina. I told you to speak to him, he gets me at the office and I can't get him off the phone. I don't want to hurt his feelings but you know the pressure we're under down there. A client calls and knows it's costing him seventy five dollars just to pick up the phone but Oscar, it never occurs to him that...
—Well it doesn't Harry, that's just the point, it just doesn't occur to him. Flat on his back, I mean what's more natural than to reach for the telephone and he's been simply frantic since this movie opened, he's just getting used to the idea that he has a brother in law he thinks he can turn to and when he can't reach you, when they tell him you're in court...
—Because I've finally told Doris that whenever he calls I'm in court, that I'm in conference, that I'm out of the office, I'm not trying to make a Federal case out of this Christina but you've got to do something. I thought he resented me intruding on the family by marrying you, try to show him some family concern, fine. That's what I'm doing today, now, Sunday, but even that woman we met at the hospital? the one with the blood bath, you actually gave her my number too?
—Well who else. Maybe you should just tell your friends I'm a public relations man, that I'm in ladies' underwear, an ad account executive, something completely useless that...
—Trish would love you in ladies' underwear Harry.
—Look I'm serious! She got on the phone with her whole life history, the time they took her to Payne Whitney when she cut her wrists? Patched her up, gave her some pills, when they sent her a bill for eleven thousand dollars she tried it again, now she wants to sue this hospital for something she calls foetal endangerment?
—Because that's what she was doing there. I mean she came in for that amniosomething, centesis, that test they give pregnant women our age to make sure the baby won't be born with one leg or eight thumbs and she'd have it aborted, she's already got a sweet little boy about ten named T J and when that blood got spilled on her obviously that's the first thing she thought of. She just wants to be sure before she marries Bunker.
—I don't think you do, Harry. I mean if she married him first and then got these tests and had to have the abortion, she'd be stuck with Bunker on her hands for no earthly purpose until God knows when, he'd be awfully expensive to unload and of course he doesn't know a thing about the boy.
—If she's thinking of making him a stepfather, I don't...
—Of making who, Bunker? You see you don't listen, I mean this boy she's been seeing, where do you think the pregnancy came from. Of course she hasn't mentioned it to him, he's trying to be a writer and obviously hasn't got a penny you can't seriously picture her married to him, she's twice his age and I mean Bunker's twice hers but he's so pickled he'll last out the century and if Bunker got in there and anything happened to her T J would never see a penny.
—The rate she's going looks like old Bunker's onto a sure thing.
—Well you can't laugh at them Harry, making fun of people's troubles I mean that's the way it sounds sometimes, if you could just stop and try to see their good side?
—Married the wrong man, Christina. We don't get to see much of the good side, greed, stupidity, double dealing, a system like ours you expect it to bring out the best in people? One lawyer to every four or five hundred and most of them can't afford one anyway, the ones who can like your friend here are even worse, make a mess of things and expect to be rescued, they...
—You didn't need to be rude to her.
—I was not rude to her! When I finally got a word in...
—That all you could talk about was money.
—Exactly. Look. I told her I don't do matrimonials. I told her I don't do negligence. I told her I could set up a conference for her and there'd be a charge, if the firm took her case there'd be a retainer, it happens every time. The minute you mention money they think you're being rude when that's all they've got on their minds in the first place, look at Oscar. Perfectly happy if the insurance company would just pay his hospital bills till Lily drags in this ambulance chaser whetting his appetite for damages? Why I went into corporate law in the first place where it's greed plain and simple. It's money from start to finish, it's I want what you've got, nobody out there with these grievances they expect you to share, have you got a dollar? Another dollar, for the toll.
—I don't, wait... she dug deeper, —here. It's just what I...
—Look at Oscar with this damn movie, you've got to explain to him Christina, these phone calls and the rest of the...
—I don't see why you can't explain it to him yourself, I mean it's just what I said earlier isn't it? about being taken seriously? Simply explain to him that you look out! My God Harry, you shouldn't drive when you're upset, that little green car anybody who drives a car like that don't you know he's going to try to prove something?
—Cuts me off because he wants me to take him seriously, exactly. Look, I can't explain things to Oscar because I can't get a word in. Because you want this great show of brotherly concern I'm supposed to get as upset as he is over this monstrous injustice, the minute I mention money we'll end up just like your friend with her foetal endangerment. He probably doesn't have a case. If he does the chances are it can't be won. They get these nuisance suits all the time, people with grandiose ideas about suing Hollywood for millions even if he's got one, even if Oscar's really got a case with this play of his he's got to know it will cost him money. He's got to know you can always lose a lawsuit and your money with it, that's the point, has he got it? the money? Because you don't start something like this on what they pay a college history teacher.
—Well I know that, no. He just does that, the teaching I mean, it just goes in to the bank every month I don't think he makes any connection between it and these students he detests no, there's a trust his mother set up for him before she died because Father married money that first time, just the way his father had, so what does Oscar show up with? Somebody whose idea of share the wealth is getting her purse stolen, but I mean all that was before Father married again, married my mother I mean so I've never known what it amounts to and Oscar's always been awfully careful about what's his and what's mine. Why is that funny.
—Well why is that...
—First time I met him, first time I came out to the country to see you? That downstairs hall bathroom, I hadn't closed the door tight and I hear Oscar's footsteps come creaking down the hall, suddenly as he passes his hand slips in and switches the light off and leaves me there sitting in the dark.
—I don't think that's odd at all, he's just not used to having strangers in the house, I mean with half the place shut off to save heat there's nothing odd about being upset by sheer waste is there? It's the way we were brought up, you get letters from him with the address pasted over some political fund raiser or cripple benefit or God knows what because he can't bear to see the postage wasted, you don't waste you don't want and putting up with my mother my God, you couldn't blame him. I mean if you're brought up like that you're going to go one way or the other when the times conies, throw your money out the window or separate the clean bills from the dirty ones, right side up, the twenties and tens inside and then the fives, the ones think about it, I mean you couldn't blame him. That egg he wouldn't eat at breakfast when he was what, seven? and she puts it in front of him again at lunch? Roast chicken for dinner and he's still sitting there gritting his teeth against that egg it went on for two days, he just wouldn't give in till that second night he finally went to pieces, threw the whole thing on the floor and shouted which came first! the chicken or the egg! and he was sent to bed, he went up the stairs singing it and he stayed there, he even managed to run a fever. God knows what went on between Father and my mother, he never said a word but I'd see him looking at Oscar sometimes, watching him with that cunning little smile he gets when you don't know whether he's pleased or that you'd better watch out.
—Tell you one thing, I'd hate to argue a case before him when he's sober.
—Well you only met him that once Harry, he was hardly at his best.
—Kept calling me counselor, that courtly manner and the gravy spots on his tie I'm not even sure he knew who I was. He seemed to think I wanted to discuss Justice Holmes' dissent in the Black and White Taxicab case, he's got total recall for the year nineteen twenty eight when he was clerking for his father on the High Court and now the press down there trying to heat things up over this Szyrk decision, madness in the family and all the rest of it, have you seen that ad for this damn Civil War movie? Based on a true story, have you seen it? All they'd need is a look in his chambers there, sweltering, cigarette smoke you could cut with a knife, must have been a hundred degrees and that Christ awful life size plastic praying hands thing of Dürer's standing there on the window sill upside down like somebody taking a dive, think that's his idea of a joke?
—God only knows, he's...
—If it is it's a pretty good one.
—Well of course that's why Oscar's so frantic, I don't mean this mess about Father but this awful movie, you can't blame him. I mean that's why he tried to write his play in the first place, for his grandfather, you can imagine, I mean even after he'd retired from the Court he used to dress to go out to dinner and Oscar had this solemn little task, transferring his gold watch and chain and the gold pen knife and change from the pockets of the suit he'd had on to his evening clothes it went on right till the last, he didn't die till he was ninety six and then suddenly there's this little boy with his own mother gone and his father marching his new wife into the house dragging this little girl behind her, my God. Because he'd have died before he'd have taken a penny changing his grandfather's money from one suit to the other but now he'd watch his chance to go through the seat cushions in that big chair in the library where Father sat when he read the papers, I mean think about it. Because his grandfather was really the first friend he ever had.
—Fine... He ran a hand over her knee, drawn up that close to him on the seat there, —take a nap. Because I've tried to tell him, haven't I? that he can't copyright his grandfather?
—And the rain, Harry? her voice already falling away, —just don't drive so fast?
And the rain, steady as the highway stretching out ahead like the day itself, lightened at last now the car turned south off the highway into a road, a byroad, as the —Sorry!
—Well my God! seizing the dashboard again, —you knew that bump was there didn't you? through the gates, past