Twitter Bird Seed Case 1
I am surely pleased to be able to be here this morning, and I am very much
complimented by the remarks of your master of ceremonies. I am also highly com-
plimented that in recognition of my vast knowledge of the law, I should be invited
to speak here on a subject which is peculiarly suited to my own personality and
attainments, abnormal jurisprudence. Your recognition makes me feel that I am
becoming a lawyer's lawyer. Blessed be he whoserves the..poor! I shall not
hesitate to speak freely.
Your committee has specifically requested me to review a case I tried some
...ttle time ago, my famous case of Daisy hniffle v. The Twitter Bird Seed Company.
New, of course, the members of the bar are completely familiar with the details of
that case. It created quite a sensation at the time in justice court circles.
For the benefit of our out-of-town guests and visitors, let me explain that it is
no-t my most recent case, but I wanted to bring up one of the few in which I have
been successful. So I am very grateful for the happy coincidence or rare tact,
whichever it was, that inspired your committee toselect that old case, Whiffle v.
The Twitter Bird Seed Company.
Although I realize that to many lawyers it is the most important considera-
tion of all, I am not going to tell you how I got the case. Suffice it to say
that it came to me under extraordinary circumstances -- practically an act of God.
Indeed, if it hadn't been for the pluck and the remarkable perseverance of my
client, Daisy Whiffle, a perseverance that sent her around from one law office:
to another, even after twenty or thirty lawyers had turned her down, I might not
have represented her at all. Such are the ways of chance.
The facts of the case are comparatively simple. Daisy Whiffle was a profes-
sional entertainer, a snake charmer in a circus. She owned in her own right a
baby rattlesnake, for which she felt the deepest affection, and which she generally
carried coiled around her neck. Now, on the day of the misfortune I am about to.
Twitter Bird beed Case 2
relate, Daisy was out riding in a convertible with her beloved pet around her neck
as usual. The day happened to be quite cold and the little snake had become stiff
from the cold. Daisy happened to glance down and thought the poor little thing
was dead. Horrified and woman-like, she released both hands from the steering
wheel and clutched the snake to her bosom. In the meantime, the driva of another
car, approaching from the opposite direction, in an effort to avoid a collision,
drove up on the sidewalk and tried to scale an adjoining building, but gravity
forced him down again in the path of the oncoming car, with the resulting collision,
Neither driver was hurt, but Daisy's rattlesnake, frozen and stiff as it was, and
therefore unable to relax, was fatally cracked in three places. So now, by a
strange twist of fate, the illusion of death which caused the accident became a
I saw in these facts some of the elements of a perfect case. There was
Daisy Whiffle, a woman. I looked at her and for the first time I saw she was
beautiful -- ALL clients look beautiful to me. There was a strong emotional
appeal, a woman's love for her deceased pet. Plenty of damages -- after all,
you can't buy a live rattlesnake every day. But what the case obviously lacked
was a corporation defendant. In order to remedy this defect, I took the
deposition of the driver of the other car. I found that he owned his own car,
that he was unemployed at the time of the accident, and that never in his entire
life had he worked for a corporation. I also discovered, however, that eleven
years prior to the accident in question, he had purchased a package of bird seed
from the Twitter Bird Seed Company. It was a simple little transaction, to be
sure, and yet I thought I saw in it a sort of embryonic master and servant rela-
tionship, and I thought of that great maxim of the law, "olim proquerator semper
procurator," or once an agent always an agent, and that even more useful maxim,
"quid jurors non facient," or what won't a jury do, and I knew I had my corpora-
The Twitter Bird Seed Case 3
I immediately filed suit against The Twitter Bird Seed Company, Now, this
company was represented by a very able corporation lawyer, a member of what in
certain respects was the largest law firm in our city. I say in certain respects,
because of the seventeen partners in the firm only two were living, so that the
size of the firm depends on your point of view, heaven or earth. I waited the
day of the trial with calm confidence. Only one thing happened to disturb my
equilibrium, and that only temporarily. The defendant offered to settle of $10.
Immediately I was precipitated into a great emotional conflict. Did I want a
trial reputation or did I want $10 cold cash? That was my dilemma. For several
days I was in the throes of agonizing indecision, and even now I know not how I
voun'd have decided if again fate had not intervened, as it so frequently does in
the lives of men ofdcstiny. The choice was taken from my hands. The defendant
withdrew his offer.
I made absolutely no preparations for the trial. It is my policy to
never look up the law in advance of the trial of a suit. I have learned that no
matter how strange and fatastic is my own notion of the law, it is safe to assume
that somewhere in the reports there will be a decision that will support it. I
really have, I confess, a singular aversion to looking up law. At one time I
seriously considered specializing exclusively inthat class of cases dealing with
what is commonly referred to as "the unwritten law," but I didn't seem able to
work up that type of practice.
I didn't coach Daisy for the trial. I didn't have to. When she stalked
into that courtroom with her superb animal magnetism, she was a sensation. She
was dressed in canary-yellow and sheer nerve. Immediately she started broad-
casing certain feminine psychical waves that made contact with the jury and the
Thw Twitter Bird Seed Case 4
judge with devastating effect.
And she was quick at repartee too. I remember that opposing counsel, try-
ing to ascertain the market value of her dead rattlesnake, very properly asked
her whether it was a male or a female, and she said, "Sir, that is a question
that should be of interest only to another rattlesnake."
But I know this learned audience is not so interested in the wit and humor
displayed at the trial, as in the judicial significance of the case itself, and
its place in the history of jurisprudence. I don't think there is anycase that
has gone so far as this one to clarify the laws of negligence relating to personal
The judge issued only one instruction, but it was unusually clear and lucid
and comprehensive. He charged the jury as follows: "If you find from the evidence
that plantiff was a woman, and the defendant was a corporation, your verdict will
naturally be for the lady." And it was. But isn't that a masterful instruc-
tion? Doesn't it completely express the realities of modern law? The law is ever
striving for certainty and simplicity, and there we have it in that simple little
We have here this morning several educators, several great law teachers. I
wish they would read the opinion of the justice in this case, Whiffle v. The
Twvitter Bird Seed Company. Let them read and reread it, and go back and tell it
to their students, because, if they will pardon my saying so, it seems to me
that our young law graduates commence the practice with a most grotesque
conception of what constitutes the lavT of negligence. In their misguided zeal,
they will read a great mass of authorities, trying to ascertain what a certain
mythical figure they call the reasonable man would do under these or those
circumstances. What an unnecessarily tdious way to practice lawl The are also
me- ered by fear, amounting almost to a phobia, that tgere won't be sufficient
The Twitter Bird Seed Case 5
evidence to take the case to the jury. Let them cross that bridge when they
came to it. There are lawyers who have traveled for years without even sighting
Now, in closing, I want to point out that, if there are present here this
morning any unusually eruditeindividuals, students of higher jurisprudence, who
whnt to consult with ne in private after the program is over, I shall be happy
to place my learning at their disposal. It is my considered opinion, based on
a certain amount of actual experience, that I am not very likely to be invited,
back again, and I want to do as much for them as I can while I am here.
Thank you very much.