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Cases

Wrong surgery cases hit a high

  • Article by: JEREMY OLSON , Star Tribune
  • Updated: January 19, 2012 – 12:01 AM

At Regions Hospital in St. Paul, Dr. James Williams, a colon and rectal surgeon, marked the incision points for Darren Lien’s abdominal surgery with a marker as part of a program to prevent errors. (Photo: Richard Tsong-Taatarii, Star Tribune)

An annual report shows Minnesota hospitals, while disclosing more, still struggle with preventable mistakes.

 Minnesota hospitals reported 26 incidents last year in which doctors performed the wrong procedures on patients — including 10 cases involving the wrong replacement joints, breast implants or cataract lenses.

The figure is the highest in eight years of self-reporting by Minnesota hospitals. Officials cited many reasons for the mistakes — from doctors filling out incorrect orders to sloppy inventories that make it easy to grab the wrong joint implants for orthopedic procedures.

“There have been cases with knee implants where they’ll bring a cart into the OR that has both right and left knee implants on it,” said Diane Rydrych, who oversees the annual report for the Minnesota Department of Health. “If you’re doing a right knee, you should probably only have a cart that has right knee implants on it.”

The increase in wrong procedures stood out in an otherwise mixed report, released Thursday by the state Health Department and the Minnesota Hospital Association. The number of adverse events — often called “never events” because they are deemed preventable — climbed to a record 316 in Minnesota’s hospitals and surgery centers in 2011, up from 305 in 2010. On the other hand, the number of errors causing disabilities or deaths declined from a high of 116 in 2008 to 89 last year.

Five patient deaths were reported — three from falls, one from a medication error and one from a fatal air embolism.

The state report tracks 28 types of adverse events in all, including severe burns and surgical objects left behind during surgery.

Minnesota remains unique nationally for tracking these errors and publicizing which hospitals reported them. Few large hospitals go a year without reporting at least one.

‘Looking harder’ for mistakes

The Mayo Clinic’s Methodist Hospital in Rochester reported 12 incidents, including four wrong procedures out of 145,589 performed last year. The University of Minnesota Medical Center, Fairview, reported 35 events, including two wrong procedures out of 164,191.

Hospital officials have warned since the first annual report in 2005 that year-to-year changes in these rare events don’t necessarily reflect improving or declining safety. More hospitals are reporting errors now, including surgical errors that take place in radiology, obstetrics and other departments — not just in operating rooms.

“I can guarantee we look harder for these kind of events,” said Dr. Craig Svendsen, chief medical quality officer for the HealthEast Care System, which includes St. Joseph’s, St. John’s and Woodwinds hospitals. HealthEast reported 10 adverse events last year.

Hospital officials say it can be frustrating, from one year to the next, to see a drop in one kind of adverse event and an increase in another. Surgeries on the wrong body part fell from 31 in 2010 to 24 in 2011, for example, while the tally of wrong procedure cases jumped from 16 to 26.

There were also 37 reported cases of objects left behind during various procedures. This year, however, none of them involved women in childbirth, thanks to new systems for counting sponges in obstetrics. “We’ve had some real success in labor and delivery, and I think that’s a great example of how we’ve been able to put in place a new community-wide standard,” Rydrych said. “Prior to this work, counting sponges and doing visual inspections of the area in labor and delivery were not the norm. Now they are.”

Fragments left behind

The new challenge, she said, involves fragments of surgical tools breaking off in patients. Sometimes, sponges are left in patients temporarily to aid in their recoveries, but nobody remembers to take them out.

None of the wrong-procedure cases resulted in severe disability or death. Many of the errors were discovered after surgery when patients reported discomfort, Rydrych said. Often the patients who received the wrong implants had surgery to fix the mistakes.

Most hospitals have adopted safeguards, such as “timeouts” before surgeries, to make sure surgeons perform the proper procedures and have the right equipment. The state report noted concerns, though, that some hospitals still don’t use timeouts or pauses while others don’t take them seriously enough.

“It’s not [supposed to be] just a superfluous kind of quick thing, but really something with content and purposefulness,” said Dr. Mark Werner, Fairview’s chief clinical integration officer.

The Minnesota Alliance for Patient Safety, a coalition of hospital and health care leaders, also is examining how to prevent errors that occur when inaccurate information is passed between the surgeon and the hospital. Electronic record systems can be part of the problem if they require separate entries for ordering surgeries and scheduling them.

Werner said public reporting has increased patient safety and eliminated the easy-to-fx mistakes.

Fairview reported five wrong procedures at its University and Southdale hospitals last year. Werner said they included complex cases in which the pre-op imaging scans or reports turned out to be misleading. Eliminating errors in these situations will be tougher than preventing errors from inaccurate paperwork.

“We’re getting down,” he said, “to the hard nuts to crack.”

Jeremy Olson • 612-673-7744

http://www.startribune.com/lifestyle/wellness/137635198.html

Cases

International River Center v. Kogos

INTERNATIONAL RIVER CENTER d/b/a the New Orleans Hilton and Towers v. Cynthia KOGOS.
No. CA-7652.
Court of Appeal of Louisiana, Fourth Circuit.
516 So.2d 1327 (1987)

John P. Manard, Jr., Russell D. Holwadel, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for plaintiff-appellant.

Frank A. Milanese, Daniel B. Capobianco, New Orleans, for defendant-appellee.
Before GARRISON, WILLIAMS and CADE, JJ.
 December 15, 1987.

Rehearing Denied January 14, 1988.

GARRISON, Judge.

This is an appeal by the plaintiff, The International River Center d/b/a the New Orleans Hilton and Towers from a January 21, 1987 judgment of the district court granting defendant Cynthia Kogos’ exception of no right of action and dismissing plaintiff’s action against her.

On October 13, 1984 a wedding reception was held in Grand Ballrooms C & D of the Hilton. The Hilton invoice indicates that the reception was held I.H.O. (in honor of) Cynthia Kogos and Daniel Capobianco. Apparently credit was extended as no prepayment or deposit appears to have been required. The reception cost $13,013.881 which balance remained unpaid. Accordingly on June 26, 1985, the Hilton filed a suit on open account. Although the invoice contained the names of both Cynthia Kogos and Daniel Capobianco, Hilton initially filed suit only against Cynthia Kogos. In response thereto, Cynthia Kogos filed a “Peremptory Exception of No Right or Cause of Action” stating that the goods and services were contracted by her parents, Samuel Theodore and Olga D. Kogos, that no privity of contract exists between plaintiff and Cynthia Kogos and that Cynthia Kogos is not indebted to plaintiff. In short, plaintiff has the wrong defendant.

In response thereto, defendant Hilton on August 3, 1985 amended its petition to include Olga Kogos and Theodore Kogos. On December 6, 1985 judgment was rendered against Olga and Theodore Kogos in the full amount, which judgment was not appealed and is now final. Judgment debtor rules were had against Olga and Theodore Kogos whose salaries are presently being garnished.

The Hilton was unable to produce any written contract for goods and/or services bearing the signature of Cynthia Kogos.

The only document they were able to produce was an internal invoice typed by Hilton personnel containing the address of Mr. & Mrs. Kogos and no signatures. Cynthia Kogos further noted that it is common custom for the parents of the bride to pay for the wedding reception. (A custom tacitly acknowledged by the Hilton when it filed suit against the bride, but not against the groom).

Thus in the absence of express law, common custom or received usages are examined in an appeal to equity. See: C.C. Art. 21, C.C. Art. 3.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.
 

Footnotes

385 Dinners at $23.00 =             $ 8,855.00
                    16%                        1,416.80
                     9%                           924.46
                                             __________
                                              $11,196.22
      Piano                                        45.00
      5 Bartenders @45.00                225.00
                   Tax              $               20.25
      385 Corkage @$3.00              1,155.00
                   16%                            184.80
                   14%                            187.85
                                              __________
                                               $13,013.88



Cases

Wile E Coyote v Acme

Wile E. Coyote 

vs. 

Acme Products, Corp.

In The United States District Court,

Southwestern District, Tempe, Arizona

Case No. B19293Judge Nicholas “Speedy” Gonzales, Presiding

 

Arizona

    

Some Other Products from Acme Products, Corp.

acmeguard

The following transcripts are provided as a service to the community. These are direct transcriptions of the court reporter’s record of this case, which are placed in public record in the district courthouse in Tempe, Arizona.
 
 

 

 

AcmeRocketSled

Acme Rocket Sled

The Sled Of Champions

 

 

Cases

Jack and Jill Doe

The Old Fairy Tale

JackandJill

“Jack and Jill went up the hill

to fetch a pail of water.

Jack fell down and broke his crown

and Jill came tumbling after”

 

The Legally Correct Version

Jack “Doe” and Jill “Doe”

v.

Imperial Bucket Corporation

The Plaintiffs, Jack “Doe” and Jill “Doe,” both minors, do hereby allege that (1) they suffered grievous and permanent injuries when a steel bucket manufactured by the Defendant, Imperial Bucket Corporation, proved to be of unsafe design and manufacture, and without proper safety guards, so as to allow it to be operated in an unsafe manner by these minors; and (2) the Defendant is guilty of such gross product liability as to be responsible for these injuries and therefore should compensate Jack and Jill for a sum greater than five million dollars ($500).

Plaintiffs were both completely untrained in the proper operation of the Defendant’s bucket, hereinafter referred to as “the pail,” when they attempted to convey such pail up a steep incline, hereinafter referred to as “the hill.”

The pail manufactured by the Defendant was made of steel and weighed 1.6 pounds when empty.  it was designed to be carried by a rounded metal handle, or “bail.”   Depending on the material used to fill the pail, the weight of such pail could vary between 1.9 pounds (cotton) and 61 pounds (pig iron).  Unless one received proper instruction in the use of this pail, it could easily be overloaded, causing it to become unstable.

The pail included no directions for safe use, no warnings of any kind about the potential danger of the pail, and no safety devices to protect individuals from suffering injuries when using this pail.  The pail could be operated by minors who could not possibly be aware of the inherent dangers in the defective design of this pail and would therefore be subject to injury.

Jack and Jill will testify that they were able to move forward in a skipping (def.: to proceed with leaps and bounds) manner up the hill, holding on to the pail, which swung precariously between them.  Upon reaching the top of the hill, they proceeded to fill the pail with a clear liquid, hereinafter referred to as “water.”  The weight of the water will be affixed through laboratory testing.  What they could not possibly have known is that the defective design of the pail permitted it to be filled with water to an unsafe level.

As Plaintiffs began carrying the now hazardous steel pail down the side of said hill, the water began shifting in the pail, causing the weight to be unevenly distributed.   While this motion, known scientifically as “sloshing,” did cause a partial reduction in the contents of the pail, this had the effect of causing addition unbalancing of the pail.  Jack and Jill, neither being experienced in the trade of carrying a pail of water down a steep incline, suffered extreme difficulty in maintaining control over the pail.  In their effort to retain control of the pail, both Jack and Jill, individually and simultaneously, did lose their balance owing entirely to the instability of the pail.

According to police reports , Jack apparently lost control of the pail and fell down the hill.  Jill, a young female weighing approximately forty-eight pounds, could not possibly have been expected to retain control of the pail without assistance and immediately came tumbling after.

By reason of the foregoing and by reason of the Defendant’s negligence, Plaintiff’s were severely bruised, injured, and wounded; suffered, and still suffer, and will continue to suffer for some time to come, physical and mental pain and great bodily injuries.   Specifically, Jack broke his crown in three different places in addition to fracturing his ribs and right arm.  Jill sustained bruises and contusions to her legs, ankles and wrist.  Some of these injuries may well be of a permanent nature so as to affect the lives of these minors forever and one day.

The Imperial Bucket Corporation, being aware for an indeterminate time that the bucket they callously manufactured and offered to market had serious design flaws and under certain conditions could cause severe injury, nevertheless did continue to manufacture and market such a bucket to the public.  They failed to take the necessary steps to inform the public of the potential for injury inherent in the use of their product.   That they did so, and continue to do so, indicates a disregard for the public welfare, for which punitive damages might be deemed appropriate.

Until such design problems as noted are corrected, the Imperial Bucket Corporation should be enjoined from offering their product for sale to the public.  They should also be required to recall all such defective products in existence and make such appropriate restitution and repairs.  All persons past and present in possession of this dangerous product should receive notice that under certain conditions, even with proper precautions, use of this product might result in permanent, disabling injury.   Minors should be prevented from purchasing or possessing this product without proper parental supervision.

Due to the use of this defective product, Jack “Doe” and Jill “Doe,” minors, have suffered irreparable injury and must be compensated in line with the substantial pain and suffering they have endured.

 @ David Fisher, Legally Correct Fairy Tales, Bedtime Classics Translated into the Legalese, Warner Books, 1996

Cases

Dad’s Ferrari

Cases

Melbourne man wrecks father’s Ferrari

FathersFerrari1

 

Matthew Burgess
May 5, 2008 – 1:48PM

It’s no fun calling dad after crashing his car – but it’s worse when you’ve just wrecked his rare Ferrari.

A Melbourne man had to make that call on Saturday night after destroying the front-end of his father’s ‘Italian Stallion’ in a very costly smash near Rod Laver Arena.

The front of the red sports car, which police said had been speeding, finished wrapped around a pole in the spectacular accident, which took place on Batman Avenue.

The Ferrari is a limited edition F360 Challenge Stradale.

The F360 Challenge Stradale was built to order, imported in 2004 and was worth more than $396,000 at the time.

It is understood just 16 were imported into Australia and New Zealand.

Television news crews filmed the apparently unhurt driver of the Ferrari ringing home, while the vehicle’s male passenger was taken to hospital with minor injuries, police said.

The Nine Network last night reported the luxury car had suffered “extensive front-end damage”.

http://www.theage.com.au/news/national/melbourne-man-wrecks-fathers-ferrari/2008/05/05/1209839513969.html

Cases

Raffles v. Wichelhaus

 Peerless1The Peerless 

 

Raffles v. Wichelhaus  

159 ER 375(1864)

indiacottonCotton on the Dock in India 

 

Misunderstanding: Avoidance of the Contract 

In the case of Raffles v. Wichelhaus (1864) 159 Eng.Rep. 375, the seller agreed to sell cotton to the buyer. Shipment was to made from Bombay on the ship named Peerless. However, there were two ships named “Peerless.” One was to sail in October and the other in December. Defendants intended to accept the cotton on the ship that sailed in October and refused to accept the cotton on the ship that sailed in December. It was held by the court that there was no binding or enforceable contract. The rule of the Peerless case is that no contract arises unless both parties have the same meaning in mind. I.e., there must be agreement on the same thing. (Rest.2d §20).

Where the parties attach the same meaning to the terms used in their agreement, the interpretation of the agreement should be in accord with that meaning even if a third party might interpret the language differently. (Rest.2d §201(1).)

Whatever an objective observer might think, if the contracting parties attach different meanings to the same term, then neither is bound by the understanding of the other unless one of them knew or had reason to know what the other understood the disputed term to mean. (Rest.2d §201(2).)

Cases

City man sues ex-girlfriend over platinum engagement ring

2007_10_ringBY JOSE MARTINEZ DAILY NEWS STAFF WRITER

Thursday, October 18th 2007, 4:00 AM

Breaking up with her fiancé was easy, but parting with the diamond ring has been tougher.

A Manhattan man is suing his ex-girlfriend for refusing to relinquish her grip on the $38,800 platinum engagement ring he bought her last year.

Dean Kuehnen wants Andria Castellano to return the 3.23-carat ring before she can follow through on an alleged threat to “sell or dispose” of it.

The couple split up last month.

“[The] marriage has not occurred and will not occur,” the suit filed in Manhattan Supreme Court says.

Kuehnen, 32, popped the question to Castellano, 24, two days before Christmas last year at the Jersey Shore, giving her a platinum ring topped off by a square emerald-cut diamond and 160 tiny round diamonds in a pave setting.

Earlier, a Diamond District jeweler appraised it at $38,800.

The suit demands that Castellano return the ring or that she pay $38,800 to her ex-flame, who likely has New York law on his side.

“As long as it was given as a true engagement gift, he has a very good chance of getting it back,” said Carlin Meyer, a professor at New York Law School.

Lara Ott, a lawyer for Kuehnen, declined to comment on the suit or what led to the breakup.

Castellano could not be reached for comment, but a relative who spoke outside her Bay Ridge, Brooklyn, building confirmed the dispute and said, “They’re trying to work through it.”

While she was a student at Boston University, Castellano was quoted in the Boston Herald as saying she preferred “guys’ guys” over “bland, boring guys.”

“I always get my heart broken,” Castellano was quoted as saying. “That’s the price you pay.”

jmartinez@edit.nydailynews.com

With Oren Yaniv and Tamer El-Ghobashy

(Note: The article tactfully does not note that Andrea Castellano is the granddaughter of Paul Castellano.  As the NY Post points out, “Paul Castellano was gunned down outside the Sparks Steak House in Midtown in 1985, paving the way for John Gotti to seize control of the Gambino family.”)

Cases

Wilson v Adkins

Case

Wilson v. Adkins

bonemarrow

Alta WILSON et al., Appellants,

v.

Ronnie ADKINS et al., Appellees.

Court of Appeals of Arkansas,

57 Ark.App. 43, 941 S.W.2d 440

Edited

 

CRABTREE, Judge.

Appellant Alta Wilson, a resident of Florida, sued her nephew, Ronnie Adkins, in chancery court for detrimental reliance, breach of contract, and fraud stemming from an alleged agreement in which the appellant agreed to donate bone marrow to her ailing sister in exchange for $101,500.00 as compensation for risk in the procedure. The chancellor granted appellees’ motion to dismiss on the detrimental reliance count, and the case was transferred to circuit court... We affirm the chancellor’s dismissal based on the blatantly illegal nature of the alleged contract.

……

Despite this stringent review of grants of 12(b)(6) dismissal, courts are very reluctant to allow clearly illegal contracts to survive even the pleading stage of litigation...

Here, the complaint states in paragraph II:

That on or about the 1st day of April 1992, the Plaintiff, Alta Wilson and the Defendant Ronnie Adkins and the Defendant Georgia Adkins, now deceased, entered into an agreement whereby the Plaintiff would elect and act as a bone marrow donor for the benefit of the Defendant, Georgia Adkins.

The complaint artfully characterizes the agreement as an exchange of $101,500.00 for the risk, difficulties, and insurance consequences of appellant’s marrow donation. While appellants’ attorney goes to great lengths to disguise the nature of the contract, it is, as the trial court noted, “so intertwined and commingled that [it] cannot be separated,” and clearly falls under the rubric of federal law on the sale of human organs. Here, the complaint essentially admits that the parties contracted for an illegal sale of organs. No matter how the appellants’ attorney characterizes the transaction, the dollar amount and the consideration are telling signs that the contract is one for the sale of an organ in violation of federal law.

Title 42 of the United States Code section 274(e) provides the following:

(a) Prohibition

It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.

(b) Penalties

Any person who violates subsection (a) of this section shall be fined not more than $50,000 or imprisoned not more than five years, or both.

 

 For purposes of subsection (a) of this section:

(1) The term “human organ” means the human (including fetal) kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone, and skin or any subpart thereof and any other human organ (or any subpart thereof, including that derived from a fetus) specified by the Secretary of Health and Human Services by regulation.

(2) The term “valuable consideration” does not include the reasonable payments associated with the removal, transportation, implantation, processing, preservation, quality control, and storage of a human organ or the expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of the organ.

 

 (3) The term “interstate commerce” has the meaning prescribed for it by section 321(b) of Title 21.(c) Definitions

While this statute does allow “reasonable payments” for the cost of the procedure and incidental expenses, it is clear that $101,500.00 is not payment for reasonable incidental expenses incurred in the organ donation, but is an illegal sale of an organ specifically prohibited by federal law.

Here, while the contract the appellants seek to enforce is not a bribe, the act of selling one’s organs is equally offensive, and just as clearly illegal as bribery. While the statute regarding organ sales is relatively modern (1986), its genesis is in a clear public policy based on long standing attitudes about transplantation of organs. “Laws regarding the removal of human tissues for transplantation implicate moral, ethical, theological, philosophical, and economic concerns which do not readily lend themselves to analysis within a traditional legal framework.” State v. Powell, 497 So.2d 1188, 1194 (Fla.1986)…..

Based on the reasoning in (Perry v. Saint Francis Hosp. & Medical Ctr., 886 F.Supp. 1551, 1563 n. 7 (D.Kan.1995)), and the equitable concerns implicit in certain types of attempts to contract as summarized in Womack, it is wholly appropriate for a trial court to refuse to meddle in the illegal dealings of parties when the subject matter of their agreement is so clearly repulsive to public policy and federal law. Such an analysis is equally persuasive on each count (contract, detrimental reliance, and fraud) where, as in the present case, both parties were in pari delicto, or equally culpable or criminal. As stated in Womack, “[W]here an illegal contract has been made, neither courts of law nor of equity will interpose to grant any relief to the parties, but will leave them where it finds them, if they have been equally cognizant of the illegality.” (Citation omitted.) Womack, 227 Ark. at 788, 301 S.W.2d at 439.

Here, it is clear on the face of appellants’ complaint that the activity amounted to a sale of organs in violation of federal law. Accordingly, the trial court’s dismissal was appropriate.

Affirmed.

ROBBINS, C.J., and STROUD, J., agree.

For Educational Use Only

Copr. © West 2003 No Claim to Orig. U.S. Govt. Works

Cases, Uncategorized

Jacklovich v. Stallman, A/K/A “Prom Night Problems”

Cases

Jacklovich v. Stallman

 

Stood-Up Prom Date Sues: Woman Says Ex-Boyfriend Broke Verbal Agreement

MOORHEAD, Minn. Posted 2:57 p.m. June 02, 1998 –

promA Minnesota teen-ager says she was stood up by her prom date. But she wants her escort to pay for it anyway. Nineteen-year-old Melissa Jacklovich of Dilworth and her parents filed a small claims case seeking $244. Jacklovich claims 19-year-old Christopher Stallman of Moorhead made a verbal promise to take her to the Dilworth-Glyndon-Felton high school prom May 16. But the woman contends Stallman reneged after she had already paid $224 for a dress, alterations and shoes. She also asked for $20 in court costs. Stallman says Jacklovich asked him to the prom in February. He says they broke up in March. A judge heard the case yesterday. A decision is expected in about a week. Copyright 1998 by The Associated Press

 

Stood-Up Prom Date Can’t Collect

MOORHEAD, Minn. Posted 5:32 a.m. June 9, 1998 —

A judge has told a teen suing her ex-boyfriend for the cost of a prom dress after he broke off the date that she should ask an etiquette columnist, and not a court, for help. Clay County District Judge Michael Kirk ruled Monday that Melissa Jacklovich, 19, of Dilworth, can’t recover the $224 cost of the dress and the $20 in court fees she sought from Chris Stallman, reports The Associated Press. Jacklovich, shown, and her parents had filed the lawsuit after Stallman ended their relationship and canceled a planned prom date after she had purchased a dress for the event. Jacklovich claimed that Stallman had verbally agreed to take her to the prom, Judge Kirk noted. But Kirk wrote that the law limits legal remedies in cases involving a social agreement. “Whether etiquette might suggest that the defendant has a social or moral duty to help the plaintiff with her prom costs is a question for the likes of Emily Post or Miss Manners, not for the courts of this state,” wrote Kirk. Kirk also wrote that: “Even a promise for the ultimate ‘date,’ a wedding, can be broken without legal liability.” Copyright 1998 by The Associated Press

Randy’s Ramblings:

The dating game has changed By Randy Hanson, Hudson Star Observer ©1998

It isn’t surprising that it’s come to this. But still, the news from northwestern Minnesota that a girl had sued her ex-boyfriend for breaking their prom date left me dumbfounded. Channel 5’s teaser worked. I sat through five minutes of commercials to have Chris Conangla tell me about poor Melissa Jacklovich of Dilworth, a speck of a town near Moorhead. Melissa paid $224 for a prom dress and shoes believing she had a date with equally hapless Christopher Stallman. Romance, even for high-schoolers, is a tricky business.

Alas, the blossom of love in young Christopher’s heart wilted – if ever it was there. Sometime before the May 16 dance, he informed Melissa that he wouldn’t be her escort. Back when I was in high school, a girl thus scorned would have been just as devastated as Melissa was. She would have sobbed to her mother about how awful boys are, and her mom would have agreed – men are a lower life form.

The next day, the girl would have told her chums about the dirty, rotten way she was treated. Her girlfriends would have done their best to make the boy’s final weeks in high school a hellish experience. They would have asked him how he could be such a contemptible lout. No other girl would have gone to the prom with him after finding out about his cowardly act. By graduation day, the boy’s self-esteem would have been lower than a snake’s belly. That would have cheered up Melissa’s predecessor. Who knows? The sisterhood might even have found a replacement date for her. Things even out over time. People who get dumped find courage to move on. They gain an appreciation for the compassionate people of the world. Eventually, they don’t know what they saw in that jerk, anyway. That’s what Melissa would have learned in an earlier day.

But Melissa, like a growing number of Americans who have watched too many episodes of “The People’s Court,” didn’t take matters into her own hands, she took Christopher to court. She and her parents filed a small claims case in Clay County District Court seeking $244, the price she paid for the dress, alterations and the shoes, plus $20 for court costs. After hearing the case June 1, Judge Michael Kirk said he would issue a decision in about a week. I’m told Judge Kirk eventually decided Christopher didn’t have to pay for the dress. What’s worrisome is that it took him a week make that decision. If you’re wondering why the judicial system is bogged down, this is a clue.

Back when the story first broke, Channel 4 sent a reporter and cameraman to Dilworth to interview Melissa and Christopher. Tears brimmed Melissa’s eyes when she told of the pain of being jilted. I admit to male bias, but her tears didn’t look like tears of sorrow to me. I thought she looked more like a spoiled child crying because she hadn’t gotten her way. Christopher looked stunned – like someone had sneaked up behind him and clonked him over the head with a two-by-four. He stared at the ground and mumbled something about just not wanting to go to the Dilworth-Glyndon-Felton high school prom. He said he hoped this would all be over soon. I bet it wasn’t his idea to spend $224 on a dress and shoes, either. I don’t know any man who would suggest that. I’m not saying there aren’t any, they just don’t eat at the same lunch counter that I do.

According to a newspaper account of the case, it was Melissa who asked Christopher to the dance in the first place. At least that’s what Christopher told the judge. She asked him to the prom in February, Christopher said, but they broke up in March. He said he received a letter from Melissa in early April in which she said she still wanted to be friends, but that she would be out of town the night of the prom. He said things were “really bad” between them at the time. Melissa’s father, Mike Jacklovich, a former Dilworth police chief, told the judge he spoke with Christopher by telephone in April, according to the St. Paul Pioneer Press. The father said he asked Christopher whether he intended to take his daughter to the prom, and that Christopher replied that he was “leaning toward not going.” He said he got a message from Christopher later that the date was indeed off. It’s inexplicable to me why a father would be so involved in his daughter’s social life. It sounds to me like the Jacklovichs could use family counseling. The whole affair might have been a valuable growth experience for Melissa. Instead, it was Christopher who learned an important lesson: When a woman tells you she still wants to be friends, it’s over.

Cases

Hamer v. Sidway

 

 CASES

Lead the Clean Life!

hustler2

Jackie Gleason and Paul Newman
in
“The Hustler”

 

HAMER

  v.

SIDWAY

 124 N.Y. 538, 27 N.E. 256

April 14, 1891.

 

 

hustler1Paul Newman and George C. Scott
in “The Hustler”
 
Short Summary and Principle:
 
William E. Story, Sr. promised his nephew William E. Story, 2nd that “Sr.” would pay “The Second” $5000 if “The Second” refrained from drinking, using tobacco, swearing, and playing cards or billiards for money until he became 21 years of age. The nephew agreed and fully performed the conditions. Hamer (the Plaintiff) acquired the rights through an assignment from William E. Story, 2nd and presented a claim of $5000 to the Sidway (the executor of the Story, Sr. estate and the Defendant ).   Sidway rejected the claim on the grounds that there was no binding contract due to the lack of consideration.  Hamer sued.

Issue: Is a forbearance of rights valid consideration?

Court stated that a waiver of any legal right at the request of another party is a sufficient consideration for a promise. The nephew had a legal right to use smoke, drink and due other “evil things.”  He gave up that right for a period of years to comply with the promise hence the requirement of consideration was met. Therefore the contract was enforceable.

Rule of Law:  A valuable consideration in the sense of the law may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other.

 Full Case:

At his 16th Birthday, William E. Story II was promised $5000 by his uncle, William E. Story, Sr. if young Willie didn’t drink, use tobacco, swear, gamble or play billiards until he was 21.  When young Willie turned 21 he wrote to Uncle Willie that he had fulfilled his part of the bargain and Uncle Willie wrote back this great letter: 

‘Buffalo, Feb. 6, 1875. W. E. Story, Jr.–Dear Nephew: Your letter of the 31st ult. came to hand all right, saying that you had lived up to the promise made to me several years ago. I have no doubt but you have, for which you shall have five thousand dollars, as I promised you. I had the money in the bank the day you was twenty-one years old that I intend for you, and you shall have the money certain. Now, Willie, I do not intend to interfere with this money in any was till I think you are capable of taking care of it, and the sooner that time comes the better it will please me. I would hate very much to have you start out in some adventure that you thought all right and lose this money in one year. The first five thousand dollars that I got together cost me a heap of hard work. 

You would hardly believe me when I tell you that to obtain this I shoved a jack-plane many a day, butchered three or four years, then came to this city, and, after three months’ perseverance, I obtained a situation in a grocery store. I opened this store early, closed late, slept in the fourth story of the building in a room 30 by 40 feet, and not a human being in the building but myself. All this I done to live as cheap as I could to save something. I don’t want you to take up with this kind of fare. I was here in the cholera season of ’49 and ’52, and the deaths averaged 80 to 125 I was working for, told me, if I left them, to go home, but Mr. Fisk, the gentleman i was working for, told me, if I left them, after it got healthy he probably would not want me. I stayed. 

All the money I have saved I know just how I got it. It did not come to me in any mysterious way, and the reason I speak of this is that money got in this way stops longer with a fellow that gets it with hard knocks than it does when he finds it. Willie, you are twenty-one, and you have many a thing to learn yet. This money you have earned much easier than I did, besides acquiring good habits at the same time, and you are quite welcome to the money. Hope you will make good use of it. I was ten long years getting this together after I was your age. Now, hoping this will be satisfactory, I stop. One thing more. Twenty-one years ago I bought you 15 sheep. These sheep were put out to double every four years. I kept track of them the first eight years. I have not heard much about them since. 

Your father and grandfather promised me that they would look after them till you were of age. Have they done so? I hope they have. By this time you have between five and six hundred sheep, worth a nice little income this spring. Willie, I have said much more than I expectied to. Hope you can make out what I have written. To-day is the seventeenth day that I have not been out of my room, and have had the doctor as many days. Am a little better to day. Think I will get out next week. You need not mention to father, as he always worries about small matters. Truly yours, W. E. STORY. P. S. You can consider this money on interest.’

Two years later, Uncle Willie dies without having paid the money.  Young Willie had assigned his interest in the $5000 to Hamer.  Sidway, the executor of Uncle Willie’s estate argued that the estate should not have to pay because there was no contract, because there was no consideration given by Young Willie (who actually benefited from not using tobacco, liquor, etc.)

The Court of Appeals ruled in favor of Hamer — the nephew gave up a legal right to do something — to use gamble, use tobacco, drink, play pool, etc.  He gave up this right for a period of years to comply with the promise hence the requirement of consideration was met. Therefore the contract was enforceable.

A valuable consideration in the sense of the law may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other.