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Planes, Trains ... and Cows
Subititled: “A paen to appellate literature of the first water”
Legend has it that the publication of The Great Gatsby pushed Ernest Hemingway into a deep depression. Hemingway is supposed to have confided to friends that he found it difficult to write after reading Gatsby because it had been his dream to write The Great American Novel and Fitzgerald had beaten him to it. Now I know how he felt.
My dream was less homeric than Hemingway’s. I figured with my talent, I needed to set the bar lower. Setting it on the ground seemed appropriate, but I was afraid if the bar were lying in the dirt, others might have difficulty recognizing it as a bar and trip over it, exposing me and the state1 to civil liability. So I set it about ankle high.
I set it not at the Great American Opinion, nor the Great Californian Opinion. I wasn’t even going for the Great American Assumption of the Risk Opinion or the Greatest Single Issue Discussion of the Last Decade. Those all seemed way too high for my modest leaping ability.2
I set my sights on the perfect paragraph. That seemed high enough to keep people from tripping over and low enough to be doable. I figured I had twelve years before the electorate got wise to me and threw me out at the end of my term, and in that time I should be able to write one perfect paragraph.
I may have been right. I’m halfway through my term now and haven’t done it yet, but I’ve written a few I liked that survived the Supreme Court’s scythe. It may be that another six years of honing my skills might have resulted in one perfect paragraph. But I’m afraid my heart’s not in it anymore.
The Court of Appeals for the Eleventh Appellate District in Portage County, Ohio, did it a few months ago. And now anything I wrote would be a pale imitation of their Gatsby paragraph.
Say what you will about me, I know when I’m beat. Here is the first paragraph of Mayor v. Wedding, 2003 WL 22931354 (Ohio App. 11 Dist.) : “In this case we are called on to determine whether a cow is an uninsured motor vehicle under appellants’ insurance policy. We hold that it is not.”
How could you improve on that? I mean, that’s “Call me Ishmael.” That’s
“All happy families are happy alike, all unhappy families are unhappy in their own way.” That’s “It was a dark and stormy night . . .”3 No one could read that paragraph and stop. It is, therefore, not only the perfect paragraph, but the perfect opening paragraph. My desolation is complete.
Oh, sure, you could quibble about the “that” in the second sentence. It serves no obvious purpose, and slows down the sentence. But, then again, maybe you want to slow down the sentence at that point. Content this rare should be savored, and slowing the reader down there may provide an extra moment to luxuriate in the richness of two sentences of such magnificent lunacy. Maybe that “that” makes it the pluperfect paragraph.4
It’s truly inspiring to see colleagues rise to the level of their material. I mean, when you get a case which actually requires you to decide whether a cow is a motor vehicle, it deserves some beautiful writing, and this court – most notably Judge Cynthia Westcott Rice, who authored the opinion – provided it, right from the overture.
Why don’t I get cases like that – I mean why besides the fact we have fewer left-handed Nepalese Communists than cows wandering the roads of Orange County.
That’s how this came up.5 The Mayors were driving along Interstate 76 one evening when their car struck a cow owned by Mr. Wedding. Since Mr. Wedding and his cow were uninsured for this eventuality, the Mayors sued their own automobile insurance carrier, contending they should receive compensation under the uninsured motorist provision of their policy.6 The insurer, predictably hypertechnical and mendacious, fell back on the picayune cavil that in order to have a motorist – insured or uninsured – you need a motor vehicle, and that the cow did not qualify.
Apparently, large farm animals in the road is a recurring problem in Ohio. In deciding this case, the court was able to refer to not just one, but two precedents in which motorists had tried similar arguments. Wow. You give me that kind of run support, I could throw a few shutouts myself.
Honest. Two precedents. In 1984, the Ohio appellate courts decided State Automobile Mutual Insurance Co. v. Cleveland Carriage Co., 98 Ohio App. 3d 361, which, according to the Mayor court – and I have no reason to doubt them – held that a horse was not a motor vehicle.
Then, extending that ruling to hitherto unimagined lengths, they decided in 1991 that attaching a buggy to the horse did not turn either the horse or the buggy into a MOTOR vehicle. (Wilbur v. Allstate Ins. Co., 11th Dist. No. 90-G-1000, 1991 WL 252851). Ohio is obviously a tough place to be livestock, but apparently Shangri-La for appellate counsel.
So how, you might ask, did the courts in Ohio come to the conclusion that neither a horse nor a cow is a MOTOR vehicle? How, you might wonder, did they sift through all the legal chaff to find the kernel of logic that separates warm-blooded barnyard animals from lifeless, steel MOTOR vehicles.
Go ahead, ask. Wonder.
Was it by taking judicial notice of the conspicuous absence of MOTORS in cows and horses? No, no. That would be way too easy. Nobody remembers opinions like that. No one writes odes to such prosaic analysis. Who would remember Mays’ catch in the ’54 World Series if he’d turned at the last moment and caught it facing home plate?
No, the 11th District went for the three-cushion, double-kiss into the side pocket, using a bridge to make the shot. Their analysis (drumroll, please):
There appears to be no dispute that there was a collision; the cow was not insured at the time of the collision; and that the cow caused the collision. The dispute in this case is whether the cow was a “land motor vehicle” as defined in the policy. While a cow is designed for operation on land, we do not believe a cow is a “motor vehicle.” The policy at issue does not separately define “motor vehicle;” therefore we must look to the common, ordinary meaning of this term.
The American Heritage Dictionary defines “motor vehicle” as, “a self-propelled, wheeled conveyance that does not run on rails.” Id. at 817. A cow is self-propelled, does not run on rails, and could be used as a conveyance; however, there is no indication in the record that this particular cow had wheels. Therefore, it was not a motor vehicle and thus was not a “land motor vehicle” as defined in the policy. The trial court properly found that appellants were not entitled to uninsured motorist coverage. [Citations to the two precedents noted above.]
That’s right. The reasoning process wasn’t that you can’t be a motor vehicle if you don’t have as motor. It was that YOU CAN’T BE A MOTOR VEHICLE IF YOU DON’T HAVE WHEELS!
Lord help the people of Ohio if their legislature ever passes laws pertaining to “wheeled vehicles.” The whole state appellate system will herniate trying to figure out how to define “wheeled vehicles” now that they’ve already defined “motor vehicles as vehicles with wheels.
Actually, I never met these people, but my instinct is that Judge Rice and her concurring colleagues, William M. O’Neill and Diane V. Grendell, are having more fun than any of us west of the Taft family ever suspected. And I don’t for a moment begrudge them that fun. In fact, if I could get me, Corrigan and Gomes – or me, Gilbert and Parilli, or even me and two people who drink too much – transferred to the same division, we could probably come up with some pretty fancy ways to differentiate cows from automobiles or ducks from tangerines or sheep from shinola. We might even find a way to match Mayor v. Wedding.
But I know we couldn’t top it. Because I know that, confronted with the same case, I would have failed to rise to the material. I know I would not have produced the perfect paragraph.
My opinion would have recited the facts in a single paragraph and then held, “Hello? It’s a cow.”
That kind of work does not get you the office next to Ron George.
But, then again, I still have six years left.
1 Yeah, I know it’s supposed to be “the state and me,” but that misstates the relative importance of the parties. Sometimes grammar has to take a backseat to accuracy. back
2 Besides, as Tom Crosby used to say, “All my best stuff gets reversed.” back
3 There is absolutely nothing wrong with, “It was a dark and stormy night.” What got E. G. Bulwer-Lytton in trouble wasn’t the part of the line Snoopy always emulated, but the rest of it. The full quote is, “It was a dark and stormy night; the rain fell in torrents – except at occasional intervals, when it was checked by a violent gust of wind which swept up the streets (for it is in London that our scene lies), rattling along the housetops, and fiercely agitating the scanty flame of the lamps that struggled against the darkness.” Now that’s a sentence which can’t make up its mind. back
4 I will leave to others the question about whether the concept of “more than perfect” as my dictionary defines “pluperfect” makes sense. Seems to me to be the linguists’ equivalent of the jocks’ “110% effort,” but ... well, you be the judge.back
5 Cows, that is. Not Nepalese Communists. Try to keep up. back
6 Timothy A. Ita of Cleveland, Ohio, was able to make this argument to an appellate court with a straight face. Remind me never to play poker with Mr. Ita. back
Posted by William W. Bedsworth on Wednesday, July 07, 2004 at 15:23 Comments
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| Comments by Roberts from United States on Thursday, August 18, 2005 at 16:53 - IP Logged |
Tanks, bulldozers and snowmobiles are tracked vehicles and all require a "wheel" aka a drive sprocket to propell them. They also have wheels that rest on the track to support the vehicle.
A hovercraft is an aircraft and uses a cushion of air (surface effect). |
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| Comments by Robert from United States on Tuesday, August 16, 2005 at 02:07 - IP Logged |
The problem with using a "tracked vehicle" like a Bulldozer as an example of a motor vehicle without wheels is silly and show that the person saying that has never seen a bulldozer or any tracked vehicle up close. Probably was overdosing on drugs in school instead of learning of the real world.
For the tracks to move in a circle (thus moving the tracked vehicle) the tracks have an "idler" arm with a wheel, so the track curves downward, a sprocket (a toothed wheel attached to the transmission) in the rear pushing (or pulling) the track through it. Then there are the various wheels that the vehicle is resting on that is touching the track. These wheels roll on the track instead of the ground and this has always been the case ever since the Holt and Catapillar Companies invented "tracked machinery". A Tank or any other Armored Fighting vehicles, or a snowmobile would have similar characteristics. A hovercraft is technically an aircraft, as it uses a cushion of air (surface effect) to rest on and a propeller to push it through the air. |
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| Comments by Mike Perry from United States on Saturday, August 13, 2005 at 14:11 - IP Logged |
Alas, in making its decision hinge on the dictionary's "wheeled" the court erred. A bulldozer has tracks rather than wheels, but I doubt any insurance company would claim that a collision with one wasn't covered as a "motor vehicle. It's the "motor" and the "vehicle" that makes this lawsuit frivilous. A cow is neither. Tie wheels to one, as a few have done with dogs who've lost a couple of legs, and it remains a beast.
And there's an interesting philosophical undercurrent to this. In naturalism, the line between men and animals not only disappears, that between machines and animals does too. We're all reduced to bio-electro-chemical machines tossed up by chance in an impersonal universe. Law and contracts may distinguish man from animal from machine, but the distinction is purely arbitrary. For more on that, see Arthur Balfour's 1914 classic, Theism and Humanism, written while the author was Britain's Foreign Secretary during WWI. Naturalism, he wrote, self-destructs. If what it says is true, then we're not the sort of thing that can know it is true. |
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| Comments by David from United States on Thursday, July 28, 2005 at 20:56 - IP Logged |
My favorite opening line was always Judge Friendly's in Nolan v. Transocean Air Lines:
"Our principal task, in this diversity of citizenship case, is to determine what the New York courts would think the California courts would think on an issue about which neither has thought. They have had no occasion to do so. But life, here coupled with death, casts up new problems, and the court seised of the case is obliged, as best it can, itself to blaze the trail of the foreign law that it has been directed to follow."
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| Comments by brk from United States on Thursday, July 28, 2005 at 13:51 - IP Logged |
While that oppening is pretty great, I have to say, the openning to Oberschlake v. Veterinary Assoc. Animal Hosp. may still take the cake for me: "This is the story of 'Poopi,' a dog who tried to sue for emotional distress and failed." Coincidentally, guess what state the case was in.
Oberschlake v. Veterinary Assoc. Animal Hosp., 151 Ohio App. 3d 741, 785 N.E.2d 811 (2003). |
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| Comments by Ryan from United States on Thursday, July 28, 2005 at 13:45 - IP Logged |
| In response to Olivia Ross' comment, the Justice's grammar is correct. He, and the state, are objects in that sentence. You wouldn't say "exposing I to civil liability." |
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| Comments by CEP from United States on Thursday, July 28, 2005 at 13:28 - IP Logged |
| His Honor is correct on the grammar question in footnote one. The gerund "exposing" takes the phrase "x and the state" as its object, not its subject; therefore, x is an object, and thus I becomes me. This is, of course, the sort of transformation of identity one should expect in legal writing... although seldom so elegantly put as does His Honor. |
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| Comments by Wayne from United States on Saturday, October 23, 2004 at 02:31 - IP Logged |
A motor is a device that converts any form of energy into mechanical energy. Muscles are a type of motor.
But anyway, regarding wheels, I can't wait for the court to rule on cows wearing rollerskates!
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| Comments by Pam from United States on Wednesday, July 14, 2004 at 19:35 - IP Logged |
| Your bovine humor is truly wonderful. Perhaps you'll get the opportunity to decide whether, in Orange County, a motor vehicle can also a cow. |
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| Comments by Olivia Ross from Australia on Monday, July 12, 2004 at 13:34 - IP Logged |
| Excuse me Your Honour, but isn't the correct gramma for the phrase referred to in footnote 1, 'the state and I'? |
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| Comments by Beanie from United States on Friday, July 09, 2004 at 10:40 - IP Logged |
| Okay...what about snowmobiles? Or tanks? Or hovercraft? |
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| Comments by Rebekah from United States on Thursday, July 08, 2004 at 14:01 - IP Logged |
| A motor vehicle is a self propelled conveyance w/wheels? How is a horse & buggy not a motor vehicle? Judicial efficiency prefers“Hello? It’s a cow.” |
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Comments are now closed.
Send your comments directly to the author at William.Bedsworth at jud.ca.gov (remove spaces and add @ symbol in place of the "at").
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