Donkey Cases: The Asinine Edition

Well, simply put, there is an abundance of donkey references in legal decisions, and a considerably greater number of decisions that deal with asses, without identifying them specifically as such.  I’m thinking, after some research, that all donkeys are asses, but not all asses are donkeys.

We begin and end with Shakespeare.  Who of us has not fallen in love with an ass?  All hail queen of the faeries, Titania of A Midsummer Night’s Dream:  I, too, was bewitched by faerie influence many a time (at least that’s what the faery persuaded me…).

TITANIA:  Please sing again, sweet human. I love to listen to your voice, and I love to look at your body. I know this is the first time I’ve ever seen you, but you’re so wonderful that I can’t help swearing to you that I love you.

BOTTOM:  Methinks, mistress, you should have little reason for that.  And yet, to say the truth, reason and love keep little company together nowadays.

titania

Speaking of Shakespearean asses, in Act 5, Scene 1 of A Midsummer Night’s Dream, Dogberry replicates what my oral submissions to the Court must oft sound like:

DOGBERRY

Well sir, they’ve lied; moreover, they have said things that were not true; secondarily, they are slanderers; sixth and lastly, they have falsely accused a lady; thirdly, they have confirmed things that did not in fact happen; and, in conclusion, they are lying scoundrels.

 

Michael Keaton’s performance in Kenneth Branagh’s A Midsummer Night’s Dream is beyond perfect.  He looks like he smells awful.  Dogberry is a master of interrogation.

One cannot do reliable legal research without searching for synonyms, so I certainly did look up “ass.”  The word shows up A LOT, and as we move into the age of evidence by text, we get some helpful clarifications.  Here, the court explains LMAO and emojis (note, LOL was previously explained in the decision).

Complainant: lmao [laughing my ass off] … if im thinking what u are thinking… ill pass [winking smiley face] LOL

Accused: WHY

Complainant: LOLOLOL

I wonder if, sooner than later, for accuracy, the Court will replicate the emojis from texts in its decisions, to preserve the accurate evidence and not the interpreted evidence.

The “donkey kick” comes up in many a report about difficult arrests.  Oddly, the behaviour has not come to be known as an ass’s kick or “kick ass.”  See, for example, R. v. Dawdy, 2016 ONCJ 110:

Mr. Dawdy continued to move his legs so Constable Willis leaned his knee into Mr. Dawdy’s left leg in order to limit his mobility.  Mr. Dawdy continued to attempt to twist and pull away for approximately 30 to 45 seconds.  Mr. Dawdy then looked at him, broadened his stance, and then “donkey kicked” him in the testicles.

donkeyThe Anglican Church got into it with CHOI-FM noon-hour radio hosts André Arthur and Alexandre Leblond.  Arthur and Leblond reported that the Church in Old Quebec was mistreating a donkey (Aldo) and goat (Holly) that were kept on the property.  They further stated that the Church had the ghost of a dead donkey in its recent past.

In another broadcast, the animals were reported to be kept outside in -27 C temperatures and left to eat styrofoam cups.  Leblond had gone “under cover” to the Church, posing as a curious CEGEP student, using a false name.  After the broadcast, the Church offered the station evidence of its adequate care of the animals, and while certainly donkeys had died over time, it was not recent:

In fact, the Anglican Church had never had a second donkey. Leblond had confused this with the fact that the Recollects religious order had brought with them two donkeys to New France in 1632

The Broadcast Standards Council dealt with the Church’s complaint (CHOI-FM re Arthur le midi, 2016 CBSC 8 (CanLII)) and found the broadcaster to have breached its Code of Ethics.  The broadcaster was ordered to issue the following statement:

CHOI-FM wrongfully accused the Anglican Church of Québec of mistreating animals (a donkey and a goat) based on incomplete information and information obtained clandestinely.

Arthur’s show was cancelled and his “association” with the station “ended.”

You do not mess with the Church and it donkey.  For heaven’s sake, the animals hosted a “multicultural Christmas sing-a-long” later that year, at which “Holly knocked down a sign in order to eat the Christmas greenery around it.”

donkey and goatThe animals had become tourist attractions.  According to their keeper, Holly would escape regularly but when people located her, “They don’t think ‘Oh my God, a goat in old Quebec’ — they just bring her back.”  The creatures went to greener pastures in 2017.

300px-Donkey_(PSF)You may not have known, as I did not know, that one of the leading cases in the law of negligence is “the Donkey Case”:  Davies v. Mann,  from 1843.  Davies’ donkey was killed by Mann’s horses and wagon:  the horses were running without a driver.  Mann claimed he was not responsible, because Davies had left the donkey hobbled on the road, so contributed to the accident and was also negligent.

The Donkey Case developed the doctrine of “last clear chance”:  The fact that Davies left his donkey on the road did not deny him (Davies, not the donkey) recovery, since Mann had an opportunity to avoid the collision and the death of the donkey.

The facts of the Donkey Case are described forsooth in Sigurdson v. British Columbia Electric Railway, 1952 CanLII 321:

He (the defendant) disputed the claim because, forsooth, the donkey had no business there. The Court did not see it that way and they held that if the jury was of opinion that the accident was`caused by the fault of the defendant’s servant in driving too fast, or, which is the same thing, at a smartish pace, the mere fact of putting the ass upon the road would not bar the plaintiff of his action. All that is perfectly correct; for, although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there’.

Take note!  Putting your ass on the road does not bar your cause of action!

Donkey_shrek.pngThe Donkey Case has been cited in cases litigated when folks were struck on railway tracks they shouldn’t be on, on streetcar tracks they’ve stopped on, and in the case of a Dartmouth woman, when she couldn’t drive her Datsun Sentra up the hill past Mic Mac Mall.  She pulled over, but her car was hit by a driver in a 5 tonne truck.

The decision that most catches my eye is Carter v. VanCamp, 1928 CanLII 28 (ON CA).  Here, two drivers in cars collided, and one of the drivers then struck the plaintiff, an 18 year old woman, Ida VanCamp, who was studying, at the time (generally, not actually at the time of the accident), to be a dietitian.

Ida’s injuries from the accident forced the amputation of her leg above the knee, leaving it difficult for her to work as a dietitian.  The question was how to evaluate her loss.  In 1928, she was hoping for a salary between $60 and $150 per month.   In today’s dollars, that’s about $28,000 annually.

The Trial Judge awarded the plaintiff $7,500 and costs of $150.  The Court of Appeal notes, “to express it mildly, [the Judge] did not entertain any very exalted opinion of dietitians and their occupation.”  The Court of Appeal increased the damages to $10,000. (The case was appealed to the Supreme Court on a different issue.)

The Trial Judge speaks about the plaintiff as if she actually gained a lot from the horrific injury.  For instance, good news!  She didn’t have to go through the ordeal of a “stump” being inserted in “boiling tar”:

The girl must go through life with one wooden leg, if I may use that expression. But wooden legs, in these days are not like the stumps they had in the old days—that they applied to mariners who lost their legs, inserting the stump in boiling tar and when the time came fitting a wooden stump.

Not for the faint of heart:

amputation-3-728

And…A Gentleman’s Guide to Amputation with “time for brandy”.  Wow.

gentleman's guide

For Ida, nor would the prosthetic impede her fashion choices, as per the Judge:  “This girl is young, and in a short time, it is common knowledge, that she will be able to move about, even with the shortest of short skirts, without much evidence that one leg is real and the other a false one” (emphasis added).

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And finally,  Ida’s lucky because “She can have that artificial one made in any shape she pleases, which may be an advantage over natural limbs.”  Ida, you go, girl!

For the Trial Judge, Ida received (good news!) unexpected advantages from her injury, namely to get her out of her chosen profession and into something better.    You say “dietitian?” I say “cook of a higher grade!”:

If it should turn out that this young woman by reason of this accident is disabled from becoming a cook—a cook still although it may be of a higher grade—and if she turn her attention to other occupations, as far as money is concerned it may turn out for the better rather than the worse (emphasis added).

But let’s not be callous.  The Judge muses:

Still she has only one real leg: it is a great loss to her. But $7,500 is a large sum of money. …it means $375 a year for life and the nest-egg still remains. That is a good deal of money, and it will help this girl all through her life—perhaps in actual money, if you could measure it in that way, more than if she had not met with this accident (emphasis added).

The assinine glory,  however, is the Judge’s commentary on Ida’s marriageability and the obvious trajectory from disabling accident, to prosthetic, to suitor and husband:

It is true she may not have as many suitors by reason of an artificial limb, but it may be true that if some one seeks her and obtains her he will be a better husband than if she had two legs, for a man who cares enough for a woman with one leg is likely to be true to her through life. Was it not Othello who was cared for all the more for all that he had gone through? (emphasis added)

BTW, Othello accused his wife of being a whore, and he smothered her.

We’re all kicking ass behind you, Ida.

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I’m barbara@darbylegal.ca or www.darbylegal.ca.  Thank you for reading.

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