Frolic of His Own (62 page)

These factors are part of the evidence before you together with the defendant's testimony, supported by a veritable horde of witnesses, that innumerable such baptisms have been conducted at this site without dire consequences, and you are instructed to disregard as irrelevant that testimony citing the death of an unattended cow, two dogs, and the handful of pigs rumoured to have accommodated Jesus in Matthew 8:32 as latter day hosts to devils rushed to their destruction in these waters.

While under the law a suit for negligence places the burden of the standard of care on the defendant, it may also rest on another foot, however small, in this case that of the decedent Little Wayne as he was known to the community. How aware was he of the risk to himself posed
by this ceremony, and whatever the degree or lack of his awareness did he consent to his part in it freely and voluntarily? There is a basic principle of the common law expressed in the Latin tongue as volenti non fit injuria. That means no wrong is done to someone who is willing, and if you know there are risks the law can't protect you from your own foolishness if you go ahead with it. From the evidence and testimony of witnesses, the decedent readily consented to undertake his part in this fatal ordeal, that he enthusiastically and even joyously embraced the prospect of baptism in the Lord's service and had, in fact, looked forward to that transforming moment from the tender age of four. Under the circumstances we cannot, of course, hear his own testimony as to his awareness, or the lack of it, of any risk he might face, and here the law is our guide

Under the laudable doctrine of this venerable Christian sect from which it takes its name, baptism is deferred until an age when the candidate is believed able to understand the depths of this commitment, unlike those widespread cults of mainly foreign origin wherein infants are handed over to the designs of the Almighty well before they are weaned. Under the law, the age at which an individual is considered capable of the assumption of risk has varied from one court to another and is often set at fourteen, but it is usually a question for the jury to decide. In doing so however, the jury must realize that if he is capable of understanding the risk involved and goes ahead with it anyhow, he will share in the responsibility for its consequences, in this case his own destruction. This is called contributory negligence, and will largely relieve the defendant of his own. On the other hand, given the facts of a situation containing elements of duress, in other words of various pressures from family, friends and the community which a minor finds himself unable to resist, he has in effect been given a choice of evils by the defendant, and while his conduct may indicate his consent, the facts in the situation may persuade us otherwise. Consequently, the court here instructs the jury to find that the decedent will be found not to have assumed the risk, or to have relieved the defendant of the duty to protect him.

In discharging this duty of care placed on him by the law, we have no evidence that the defendant knowingly misrepresented any aspect of the situation to the decedent. Due to the swift current and the suddenness of its action we see no indication of a last clear chance when the decedent might have been saved or have saved himself. We have only conflicting testimony as to whether the defendant knew the boy could not swim, and the suggestion that alcohol may have played a part in the defendant's conduct has been stricken from the record. There are
certain things we can never know, and during your deliberations you are urged to bear in mind the words of an eminent jurist of a bygone era. ‘The law,' wrote Justice Holmes, ‘takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men. It does not attempt to see men as God sees them, for more than one sufficient reason.'

Thus far we have gone on the premise that the defendant acted entirely on his own. At the same time however, we are all aware that he has never presented himself to this court, to the decedent or to the world at large as other than a willing and devoted servant of a most demanding master, to whom his life and works are dedicated. He is widely held as a servant in the Lord's employ, and a diligent member of his working staff.

We reach far back in the history of English law, from which we draw our own, for the doctrine linking the master to damage and injury caused by his servant, and holding the master liable even when done intentionally, so long as it was carried out within the scope of the servant's employment. While we have before us neither direct testimony from the defendant's employer, nor any means of obtaining it, regarding the terms or even the fact of this employment, the defendant's own sworn statement to having been ‘called' into the Lord's service is uncontested. He has elsewhere been reported to have spoken directly with his employer, and referred to in contemporary accounts of the event before us as ‘the dynamic leader of Christian Recovery for America's People' in his call for ‘the opening salvo in God's eternal war against the forces of superstition and ignorance throughout the world and elsewhere.' There can be no question that, in bringing a new soul into the fold through the baptismal ceremony, he was engaged on his master's business much as, we may recall in Luke 2:49, this selfsame master at age twelve found lagging behind at the temple in Jerusalem by his anxious parents, rebuked them saying ‘Wist ye not that I must be about my Father's business?' and not, in the words of a later English jurist, ‘going on a frolic of his own.' In carrying out this solemn assignment, even were there reliable testimony that this omniscient master must have been aware of the risk and told his servant to act carefully, the law still holds him liable for a prevailing share in the consequences. In other words, the master may not delegate responsibility for the servant's acts to him, since under the terms of their relationship he remains ultimately responsible for protecting his servant. This must hold the more true where the instrument of imminent catastrophe is the master's to control, as must the crest and current of the Pee Dee River have been for one who had shown himself capable of stilling a great tempest to save a
ship from foundering by merely rebuking the winds and the sea in Matthew 8:26, with which I am sure you are all familiar.

In pursuing your deliberations, I must pause to recall your attention to one more item of testimony which you are instructed to disregard. That is the heated attempt by one witness to indict Satan for meddling in this situation, drawn from the evidence of contemporary records quoting defendant's mention of ‘the great deceiver Satan' causing him to doubt the Lord's purpose. As was held in an earlier case before a district court in Pennsylvania, in which the plaintiff accused Satan of ruining his prospects by placing obstacles in his path, thereby depriving him of his constitutional rights, the complaint was dismissed for its failure to discover Satan's residence within the judicial district, or instructions for the U.S. Marshal needed to serve the summons, and the failure to meet legal requirements necessary to maintain a probable class action, since the class would be so numerous that getting them all together for this purpose would be impractical. I may add that this information could be useful to any of you contemplating a similar recourse in your own difficulties, as the commotion which greeted this testimony in the courtroom provoked by defendant's son indicated to be a serious possibility

While the allocation of damages should not be allowed to direct your verdict, you must be clear on the law as it views these matters. In general, the damages awarded to the legal beneficiaries in the death of a child are based on his earnings, services and contributions at the time, and more problematically on the loss of whatever prospective economic benefits he might have been expected to provide had his life not been cut short. This is governed by such elements as life expectancy, health, habits, character, and perhaps particular talents in profitable fields of enterprise. It is quite possible for the cost of rearing, maintaining and educating a child to outweigh the expected benefits, leaving him for all practical purposes worthless. Furthermore, since awards for sentimental family relationships are generally forbidden, and survivors may not seek damages for mental suffering or grief, he may even end with a negative value, going so far as to tempt the defendant, where contributory negligence is involved, to turn the tables and sue for recovery himself.

The future of each mortal being is wrapped in an impenetrable mist, most especially that of a boy who has scarcely embarked upon life's journey. In the annals of law we find, here a substantial award made for a boy of seven who showed promise as a cartoonist, there for another the near certainty of an impressive income in his consuming ambition to become a dentist. Still, in a country where a chief executive is paid a million dollars' salary for managing an automobile company that loses
a billion that same year, the odds are hard to call. The decedent might one day have abandoned his calling and, like Babbitt, found it elsewhere in the malodorous realm of real estate development, might have become a writer at the mercy of publishers and starved in a garret or ended it on the spot, might have been lost at sea or gone up as a soldier, become a drunkard and a public charge. We can only speculate with the evidence before us

The decedent's earnings at the time of death had been gained mainly by picking berries, and his carefully husbanded estate amounted to $4.36, having bought new clothing especially for the baptismal ceremony from his own savings. This earthly estate would appear to corroborate the testimony we have heard quoting Matthew 6.19-21, that he was unconcerned with laying up treasures on earth but rather ‘in heaven, where neither moth nor rust doth corrupt, and where thieves do not break through nor steal: for where your treasure is, there will your heart be also.' In the defendant's testimony from the record at the time of the event, ‘recalling the day Wayne Fickert made his decision for Christ,' he saw him ‘going forth one day from the Christian Recovery Bible Mission School to take the Lord's word to the very farthest reaches of the world.' There, high in the Himalayas, he might have been a priest aspiring to no more than a begging bowl; elsewhere, in the urban din below, he might have pursued the course of rabbi looking forward to a hundred thousand a year; but the humble faith of his fathers, who appear to have been numerous, promised no such economic benefits in computing an award for damages to the survivors since you must exclude from your deliberations any speculation involving the vast sums accumulated by those in the Lord's service who are currently in jail for confusing his assets with their own, or even those still at large living on the scale of the automobile executive who, like the elder John D Rockefeller teaching his Sunday school classes, regard themselves simply as the Lord's stewards.

Under the State of South Carolina statutes authorizing civil actions for wrongful acts causing death, such actions shall be for the benefit, among other relatives not here represented, ‘of the parent or parents, and if there be none such' for the heirs at law and so forth. Both parents are parties to this action, the father Earl Fickert as plaintiff, and by joinder the boy's mother Billye. You are here instructed to dismiss the latter's claim on the grounds of contributory negligence on her part, in the assumption of risk in providing her consent as evidenced at the time by ‘her tearful gratitude that her son had been baptized and entered the waiting arms of the Lord in a state of grace,' and on the further grounds of her remarriages since the event, reclaiming her name as the boy's mother for the sole purpose of participating in this action.

Damages will go to the original plaintiff, whose scurrilous testimony and profane demeanor throughout the trial leave no doubt that consent to his son's baptism, had he known of it, must have been the last thing in what we may arguably call his mind. The amount of the award will not be diminished by the usual claims for medical and funeral expenses, there having been none for the former and the latter, including the fried chicken and refreshments served for the occasion, were assumed by the defendant's assembled congregation. This leaves only the loss of the boy's clothing, a blue suit, shirt and tie bought at a cost of $18.76 at JC Penney which he insisted upon wearing under his baptismal smock, and the award will be made in that amount plus one dollar for punitive damages.

—Laying up treasures in heaven! did you see that Christina? He wouldn't read my play, no, but that's where he got it, he took it right out of my prologue.

—It's faintly possible he's read the Bible himself Oscar. I mean he's had ninety five years to get through it hasn't he?

—Well he, all right then maybe the Old Testament, the last thing he did was throw God out of his courtroom and you saw what happened, now he's bringing Jesus in at the back door. He doesn't even get through the third book of the New Testament does he? leading this jury by the hand like kindergartners on a field trip so he can point the finger right at him? Master and servant, master and man, he's just trying to stir them up.

—But he already did Oscar, came from the sofa in the flickering light of the silenced screen where a leggy blonde who had found relief from hemorrhoids cycled down a country lane and passed them beaming —when Daddy called last night? and he said they're coming up here without Reverend Bobby Joe because your daddy put him in jail for thirty days for contempt of court for getting up and shouting for the Lord Jesus to come and . . .

—Well my God Lily Father would give Jesus thirty days if he could, are you watching that thing? If you're not turn it off, now what is this mess.

—No wait, those are plants for my fish tank.

—Then take them in and plant them, now what about this heap . . .

—First I have to fix the light in it and the aerator and . . .

—I said what are you going to do with this heap of mail, look at it. Everybody on earth must have read about your great award.