PART II. BECOMING A LAWYER.
I Start My Law Career.
I started my law practice before I got out of law school. In the summer of 1920, at the completion of my first year in law, I came back to Arkansas City and decided to try and get a little practical experience by working in a law office during the summer vacation. At that time, one of the outstanding lawyers in Arkansas City was Mr. C. T. Atkinson. He looked exactly like Mark Twain—and Mr. Atkinson knew it! As a result, he wore the same type of Palm Beach clothes that you frequently see pictures of Mark Twain dressed in, and also wore the same type of panama hat. He had the same white hair, and had it cut in the same manner as Mark Twain; and there was a very striking resemblance.
Mr. Atkinson had been a school teacher and, I believe, was superintendent of the schools of Arkansas City for awhile. He had been admitted to practice law and had a very keen mind; but he had become embittered for some reason, and he and his wife didn’t get along, and he didn’t get along with his children. As a matter of fact, he didn’t get along with hardly anyone. He was a loner if there ever was one.
At that time he was well known and an outstanding lawyer. I went up to his office and he said I could work there during the summer doing some collection work. I think he gave me a percentage of the collections I made. He also asked me if I knew of anyone he could get to come into his office on a partnership basis. Well, one of my fraternity brothers was Tom Pringle. He’d been an outstanding football player at Kansas University and was a very likable gentleman. I got hold of Tom and asked him about it; and he decided that he would come and cast his lot in Arkansas City. So he started in the summer of 1920 in C. T. Atkinson’s law office as a lawyer, and I was the flunky there who served papers and did collection work.
Mr. Atkins was a rather peculiar gentleman: he didn’t smoke, he didn’t drink, and he didn’t gamble; but he did have a number of young girls around his office and he’d haul them around in his automobile and have them deputized to serve papers.
Tom Pringle was a hail fellow, well met. Tom liked to smoke, liked to take a drink, enjoyed athletics, and went to baseball and football games—which Atkinson never attended. Mr. Atkinson never took any pains to tell me about the law practice. In fact, he never trusted me with a key to the office. I don’t think he distrusted me; it was just a matter he never thought was necessary. The result was that the only way I could get in and out of my own office (one might call it that) was to put my foot on the doorknob and go over and through the transom above the door. So you get some idea of the nature of the gentleman!
About the only thing that sticks in my mind about the law business of that summer of 1920 is the fact that the assistant cashier in one of the banks in Arkansas City had been surreptitiously taking money that belonged to bank patrons. He had a rather neat practice of going out and clerking sales, putting down false prices of stuff that was sold. He would some times make a profit of two or three hundred dollars on a big public sale. And with motor car dealers who were buying and selling paper and borrowing money and so forth, he would shift the books around and defraud them of considerable sums of money. One of the motor car dealers came to Mr. Atkinson and complained that this assistant cashier had been defrauding him. Mr. Atkinson looked into the matter rather briefly and summoned the bank officials to his office. They wanted to know what the loss was and wanted to make it good and keep down any publicity. Mr. Atkinson, without batting an eye, said it looked to him like it would take considerable time and expense to figure up the exact amount, but he thought about $10,000 would take care of the shortage that this assistant cashier had caused the motor car dealer. The bank official, without batting an eye, wrote a check for $10,000 and got a release from Mr. Atkinson’s client. Of course, that made quite an impression on a young boy in law school.
In the summer of 1921, I again returned to Arkansas City to see if I could find work in a law office during summer vacation. This time, I approached Mr. W. L. Cunningham, who at that time was practicing alone. Mr. Cunningham had a very wide practice and was entirely different from Mr. Atkinson. Cunningham was interested in explaining the law and how to proceed with a case; and he gave me a number of points about law practice in general. He made an agreement with me to give me half of whatever the collection fees were, and turned me loose with quite a large number of collections. I did pretty well financially, that summer of 1921.
I recall another thing that he did. There was a family at Edmond, Oklahoma, by the name of Cowles. They operated a ladies’ ready to wear store in the town where there was a teachers’ college at that time. It may be there still. Anyway, in the back of Cowles’ store a fire broke out and apparently burned most of the night in the back part of the store, causing the place to be filled with smoke and intense heat. About daylight the plate glass window at the front broke and smoke poured out and the firemen came and had little or no difficulty in extinguishing the blaze. The Cowles’ family had insurance of twenty or twenty-five thousand dollars on the merchandise; and the insurance company was refusing to pay more than two or three thousand dollars, claiming that there was no fire damage to most of the merchandise. The Cowles people and the insurance company did not get together; so a demand was made by one of the parties to arbitrate the loss. The Cowles family was there in Mr. Cunningham’s office and he suggested to them that they name me as their arbitrator, which they did.
Well, I went down to Edmond and examined the store. I’ll never forget how the intense heat inside that store had caused silk stockings to fall apart like the old gas light mantels used to crumble when you just touched them. Also, in the front of the store (100 feet away from where the actual fire had been), the cherries on ladies’ hats had dissolved and ran over the hats like melted candy. Well! As the appraiser for Cowles, it was my duty to get together with the appraiser of the insurance company; and the two of us were to select a referee and then get to work and try to determine the loss. I’ve forgotten the name of the arbitrator appointed by the insurance company, but I met with him several times in Oklahoma City. He’d always give me a list of people, and I’d spend some time investigating them; and every time, without exception, after I’d backtracked these suggested referees, I’d find they were on the payroll of some insurance company with the result that finally we called off any attempt to arbitrate the loss. Mr. Cunningham filed a law suit in the district court of Cowley County, Kansas, on behalf of the Cowles against the insurance company. Later on he tried the suit for the Cowles family and the jury returned a verdict of $20,000 in favor of the Cowles. I’ve forgotten the amount; but the Cowles people paid me a few hundred dollars for my services as arbitrator, and that helped with my school expenses.
In the spring of 1922 before I graduated from the Kansas University Law School and before I had been admitted to the bar to practice law in the state of Kansas, I learned that I was eligible to go over to Jefferson City, Missouri, and take the Missouri bar examination if I cared to. So several of the K. U. seniors, including myself, went over to Jefferson City to take the Missouri bar examination. I shall never forget that the exam was held in the House of Representatives where the Missouri legislature sat. I remember that some of the questions were pretty tough and I leaned back and looked at the ceiling and there, emblazoned in the dome were the words, “Oh God of Hosts, be with us yet, lest we forget.” In any event, I successfully passed the Missouri bar examination and was admitted to practice law in the state of Missouri before I graduated from Kansas University.
At that time I did not know where I would locate and I thought it might be useful in case I decided to go to Kansas City, St. Louis, or any other Missouri town to hang out my shingle. In the spring of 1922, I graduated from the Kansas University Law School and successfully passed the bar examination given by the state of Kansas. I was ready to look for a location!
I returned to Arkansas City, went to see Mr. Cunningham, and asked if there would be any chance of going into his office on a permanent basis. Mr. Cunningham said he would be glad to give me a job and would start me off at $150 a month. Now $150 a month doesn’t sound like much today; but at that time, the going wage for young lawyers starting in Wichita, Salina, and other places in Kansas, was $50 a month. So you can understand I was starting out with $150 a month: big money in those days!
Now I think it appropriate to mention a few words about Mr. Cunningham. He was the greatest lawyer that I have ever met—and I’ve met the best throughout the United States, some in Europe, and some in the Orient! He was a splendid looking gentleman, about six feet tall, had a large frame, a beautiful head of hair, and the most handsome leonine head that I have ever seen. He looked like a lawyer! He was a lawyer! He had a fine speaking voice, and was a gentleman who read constantly and was perhaps the best informed, best read man that I have ever met. He not only knew law, but he knew history and he knew human nature! He could read Greek and Latin; he had a library of hundreds of books, which were not there for other people to see but for him to read. You could pick up any book in that enormous library and you could find many, many places where he had underscored very interesting propositions of law, or where there had been a particularly brilliant argument. I remember his book that had the speeches of Daniel Webster. Mr. Cunningham would go through Webster’s speeches and underline the significant parts; and in the margin he put such notations as, “See how Daniel Webster is arousing the curiosity of the jury,” See how Webster is weaving this into an argument that cannot be refuted.” His own notations were as interesting as that which the author had put in the book.
Another thing about Mr. Cunningham was his all-around ability. He could sit down and draw the pleadings to be filed in a law suit that would be letter perfect; and if he was trying a case to the jury, he could weave in more emotion and pathos and sway a jury as well as anyone who ever stood before the bar. Then if the case went on to an appellate court, he could sit down and write a brief and abstract that could serve as a text book. In other words, he was well rounded in every department of the law. Law was his devotion! He would come to his office anywhere from 5:00 a.m. to 6:00 a.m. and stay there until 6:00 p.m. in the evening and frequently, of course, he returned at night. In those days, such things as a four- and five-day week was unheard of. Mr. Cunningham and I would work six days a week; then we would work half a day on Sunday and on Sunday afternoon I would go play golf or something and Mr. Cunningham would go read the New York Times studiously, and take a nap. On Sunday afternoon, we’d be ready for the next week.
Now, I was with him for thirty years; and during that time he purchased, perhaps, twenty different automobiles. Yet he himself never learned to drive. He never went to a ball game, he did not go to the theater, he did not play cards. He did nothing but read law and practice law. Yet it did not warp his life. He never lost sight of the better things in life and frequently he would insist that I get out of the office and take a trip for a week or so. He was a kindly man. I remember shortly after I went in with him, he went to Kansas City, Missouri, and ordered me a nice desk and swivel chair. He wanted me to have an office that would be just as nice as the one he had. Naturally, as any young lawyer will, I probably made a world of mistakes and boneheads; yet he was always very kindly, very tolerant, and I never heard an ill word from him in our thirty years of close relationship. And our relationship was close. We had a very active law practice and we drove hundreds of miles together. I would drive the car and he would visit with me. Sometimes we’d leave at three or four o’clock in the morning, drive out to western Kansas, try a law suit, and drive back, arriving at two or three o’clock in the morning. He never went to sleep while riding in a car; he was always awake and alert. His experiences and his knowledge of history and events and his analysis of what was going to happen were of immense value to me.
Another thing that is worthy of mention: in all of the thousands of law suits we tried, I cannot recall a single time that the opposing side came up with a citation that Mr. Cunningham was not familiar with. He knew in advance what the weakness of our case might be; he knew in advance the very decisions the other side would rely upon; and he would have in advance of the case taken those adverse decisions and analyzed them and researched them and be prepared to take the sting out of them.
In World War I, Mr. Cunningham was too old to get in the service, but he did join up with the Red Cross. He went overseas and served with distinction. During the time that he was gone, he lost one of his two sons, and that rather changed his outlook on life. I understand that before World War I when he went overseas, he never took a drink and he did not smoke; but from the time that I was with him, I don’t think I ever saw him without a cigarette in his mouth—and when he smoked a cigarette, it was really smoked! He would light the cigarette and usually would never take it from his lips. He usually wrote everything in long hand with a stubby little pencil. Even though he had a couple of stenographers and a dictating machine, he loved to write in long hand. Leaning over with that cigarette in his mouth, the smoke coming up in his face and eyes, I don’t know how in the world he could write. But he did! And pretty soon the cigarette would be down to about a quarter of an inch long. Usually he’d take a fresh cigarette and light it from the little stub in his mouth; then he would take a toothpick and stick it in this little stub in his lips, get the cigarette out, and toss it in the cuspidor. He was a chain smoker, if I ever saw one! Along in the evening before his meal, he liked to have a couple of highballs; and when I say a couple, I mean just that. His wife was a worker in the Methodist church, and I don’t think she permitted him to have liquor around the house, with the result that we usually had a bottle around the office. When the day’s work was done, we would lock the doors and he and I would sit back there at his desk and have about two drinks. And when I say about two drinks, I mean it was just two, and that was all. Mr. Cunningham was very temperate; he never got drunk; he was never under the influence; he simply relaxed with a couple of highballs, and that was the only enjoyment he really had out of life. When I say enjoyment, I mean from external things. Mr. Cunningham was a good man and friend of the poor man. At the time I went in with him, there were four banks in Arkansas City and he represented three of them; there were three railroads of importance, and he represented two of them. But no one would ever know it from talking with him! There was nothing of braggadocio or self-importance about Mr. Cunningham and the poor people who had troubles, flocked to him. Many of them couldn’t pay and it made no difference. Many times I said, “Mr. Cunningham, why do we want to take on the defense of this colored boy for murder? He’ll never appreciate it.” Mr. Cunningham would say, “Well, Arthur, if you’re going to practice law, there’s a certain responsibility you owe to the public and we’ve got to help these poor devils; if we don’t do it, the time will come when the people will have no respect for the legal profession.”
We represented hundreds of people that he felt were being abused in some way, shape, or form; and he got just as much satisfaction out of winning a case for a poor person who could never pay him as he did a case that really had considerable money involved.
My Law Practice Begins in Earnest.
I really do not remember the first case or cases I tried. They were probably collection items or minor law suits that I probably tried before some Justice of the Peace. But I well remember the first case that we tried against a railroad company which I prepared and which was one of my first cases to go to the Supreme Court of Kansas.
The case was entitled, A. R. Gibson vs. the Midland Valley Railroad Company, and the Supreme Court recorded the case in 117 Kansas, page 675. Mr. A. R. Gibson, or Aus Gibson, as he was better known, was a cattle buyer and one afternoon he was driving in his car, approaching a railroad track. A Midland Valley engine and some cars had just backed up and stopped at the crossing, so Gibson had to stop. After a bit, the engineer of the Midland Valley engine started backing up the cars and as Gibson started to cross the track and had proceeded about 80 or 100 feet, a hot cinder hit him in the eye and caused infection, which resulted in his losing the eye. I felt that the railroad was responsible on the same proposition as if the engineer had thrown a piece of coal and had hit Mr. Gibson in the eye. What he had done, in effect, was to throw a cinder from his engine. I had some negligence in the case, but very little. At the trial of the case, I didn’t know how to carry on a direct examination of a witness. I would lead the witness, the other side would object, and the court would sustain the objection, and I would try again. I messed the thing up pretty bad. Then the court instructed the jury and it came time to argue the case.
I made the opening argument and the railroad lawyers simply announced that they would waive argument. Now when a lawyer makes an argument to the jury and the opposing side waives argument, it is usually an insult to the lawyer who has just spoken. In substance, the party that waives the argument is saying to the jury that that fellow hasn’t said anything; he doesn’t know how to say anything; and if he did say anything, it doesn’t amount to anything. All in all, it sort of brands the person as a nincompoop who’s made an argument and the other side doesn’t think it even justifies a reply. Well, actually, of course, the railroad lawyers were pretty smart. I hadn’t made much of an argument and if they had made a reply to my opening argument, then Mr. Cunningham would have had a closing argument. Anyway, the jury went out to deliberate and they couldn’t agree on a verdict and that’s what is called a “hung jury.” So the court dismissed the jury and re-set the case for trial at a later date.
I learned a lot of things from that Gibson case. The first thing I learned was that I’d better start and find some negligence in that case, and the next thing was the matter about the argument. I’d been a little humiliated by that matter; and I looked back and saw that I had made several mistakes. To begin with, I had memorized and written out my speech that I was going to give the jury. Now, that’s a mistake! You never want to memorize a speech. A speech has to come from the heart. It has to have emotion, it has to be timely and interesting. Anytime you memorize a talk and try to give it and influence people, you’re going to fall flat on your face!
So the first thing I did, was to go down to the Santa Fe yards, where I used to go as a newspaper reporter and knew a lot of Santa Fe engineers and brakemen, and asked them what negligence there was in the way that this engine had been operated that threw the sparks out, which hurt Mr. Gibson. I told them about the engine starting with the wheels spinning and the enginemen at the Santa Fe said, “That’s the most negligent thing you can do. How many cars did he have, Arthur?” I said the engine had six or seven cars. They asked if the track was level, to which I replied that it was. They replied that there was no reason then to spin the wheels and that the engineer should have opened the valves slowly, put the steam on, and the wheels should not have spun or slipped, and should have moved the cars in a reasonable manner. When the engineer spun the wheels on that engine, that created an unusual, unnecessary, and excessive draft over and through the firebox and sucked the sparks up through the smoke stack. Of course, they came out of the draft and threw the hot sparks an excessive distance. So I got some witnesses to show a pretty good case of negligence on the part of the railroad company.
The next thing I did was to try to figure out how to make a speech that would amount to something. I learned then how to write a speech; rather, how to get a speech ready. Here’s the thing you do. If you are going to make a speech about any subject, first, you want to write down on a piece of paper six or eight or ten things you want to talk about. Then you arrange those items in some kind of order. Now the average item that you are going to talk about will take two or three minutes at the very best, to develop. So if you have ten things you want to talk about and emphasize, you’re going to have about a thirty-minute speech. The next thing you do is write out your complete speech; then you read that speech over but don’t try to memorize it—just read it over and throw the speech away—keeping an index or list of the eight or ten things in the same order that you’ve worked out in your talk. When you get ready to argue to the jury, you have a piece of paper before you with the six, eight, or ten things that you want to emphasize. That speech that you wrote out will come back to you, and you won’t be worried about using the same words, or where you should start or stop. In other words, you’ve got your map before you, and you can drive right through it with a powerful, emotional speech. Anyway, the second time we tried the Aus Gibson case, it was an entirely different case. I had learned how to carry on a direct examination. That is a simple thing. A lawyer who puts a witness on for direct examination just uses the who, what, when, where, and why. (“What is your name? Where were you going? What were you going to do? When was this? And so forth.”) You don’t lead the witness. You get along famously if you just remember the who, what, when, where, and why.
This time I got in the negligence! I got those wheels to spinning on the engine; I got the sparks coming out; I put on some witnesses—firemen and engineers who operated steam engines—and they said it was not necessary to spin wheels; and that if you did, it would bring about the ill results I’ve mentioned. Then when I got up to argue my case, I had my outline. I gave them a fit and this time they did not waive argument on me; and this jury went out and brought us a pretty nice little verdict. That case was appealed to the State of Kansas by the railroad company. The verdict was affirmed and we got the money. That was my first case of importance that I remember.
Shortly after I started practicing law, I had a very minor case; but it was an interesting one and seemed to appeal to people. And for years, people would come in and ask me if I had any more piano cases. Here’s why they called it the piano case!
There was a school teacher in Dexter, Kansas, who was interested in music, and she signed a contract to buy a baby grand piano. It must have cost around $700 and she was to pay so much a month. In the contract was this clause: that should she become delinquent and the company, for any reason, had to take the piano back, she and the company agreed that $2 per day was a reasonable sum for the storage of the piano. In other words, the company selling this piano, had in mind, that if a party paid three or four hundred dollars and got behind, the company would simply go get the piano and put it in storage and at $2 per day, that would soon eat up the amount the party had paid and the company would have the piano back free.
Well, in this instance, this woman had some sickness and was unable to make her payments on the piano; and as I recall, she had only paid about $200. She came to see me so I wrote the company a letter, saying that she was unable to make any more payments and that she had paid the $200 and regretted that she couldn’t make any more and that she would hold the piano in storage in her home and wait the further disposition of the matter by the company. Well, for some reason, they did not show up for about six months; then they came in one day to get the piano. She told them they’d have to see me, so they came up to my office. I said, “Well, this woman paid you $200 and she’s had it in storage for 180 days, that’s $360 more, so I think that she’s entitled to the piano. They hit the ceiling and it went along about another two or three months and they filed suit; and by that time, the amount that she had paid plus the amount she was entitled to for storage amounted to more than the cost of the piano. Anyhow, we tried the case and the jury decided that she was entitled to this $2 a day storage and even if the company was going to take the piano away, that they had to pay it. Well, the result was, that the company finally threw up its hands after being beaten in the law suit, and gave the woman the bill of sale for the piano. It was a simple case, just a little human interest, and it appealed to people and, as I say, for years they asked me if I was going to try any more piano cases.
About the time I started to practice law, there was quite a famous murder trial which occurred in Cowley County. Ida Cummins was a very good business woman and a fine looking lady. She had a husband, Charley Cummins, who was kind of ne’er-do-well, who would enjoy spending his life with a bottle of whiskey out on a creek bank watching the cork bob up and down. Ida Cummins was running a business in Arkansas City. About this time, a man by the name of Leach came to town and she became infatuated with him—or at least that’s what everybody claimed. One afternoon Mrs. Ida Cummins was at her home and Leach was there when Charley Cummins came home. The screen door on the back porch was locked and he started swearing and kicking at the door. Leach came out on the porch with a shotgun and shot and killed Charley Cummins. As a result of this, both Leach and Ida Cummins were charged with first degree murder.
One of the best criminal lawyers in the state of Kansas at that time was Sam Amidon of Wichita, Kansas, and Mrs. Cummins hired H. S. Hines of Arkansas City, who was a pretty good criminal lawyer in his own right, and Mr. Cunningham and Sam Amidon, to defend her. I was on the sidelines and had a chance to see how those three professionals went about defense of what looked like an open and shut criminal case against them. Ida Cummins claimed that the back screen door, when it was slammed shut, would frequently lock itself, that neither she nor Leach had locked the door. Sam Amidon checked it and seemed convinced that Ida Cummins was correct. So he had the screen door removed from her home, built a frame and took the same to court. He practiced awhile and became an expert with it, and he could slam that door and have it lock almost every time.
Then they had a number of witnesses who testified that they had known Charley Cummins, and it was his habit to carry a pistol, and that it was on this particular time when he was kicking the screen door and swearing, that he reached in his hip pocket. Of course, if the jury believed that, then Leach would have a right to shoot in self defense.
Sam Amidon, at that time, was at the height of his power, and one thing that impressed me was a little medicine case he carried. Inside were six little straight up and down bottles about three-fourths inch in width and maybe three inches long. About every couple of hours, he would step out and take a little of his medicine, which I later found out to be good bourbon whiskey. He wasn’t a drunkard by any means, just kept his vitality up and was a nipper, you might say, but a hell of a good lawyer. Anyhow, they tried the case and got an acquittal for Mrs. Ida Cummins, as I recall. I think maybe thereafter Leach entered a plea of guilty to some low degree of manslaughter and he served a short term in the Kansas State Penitentiary. Watching those men go into that defense of what looked like a sure shot conviction of those two clients was one of the real revelations to me of criminal law practice.
Sometime in the early 1930s there was an oil man by the name of Dickey, who operated out of Wichita and McPherson, Kansas. He was a successful oil operator, but absolutely unscrupulous, and he defrauded a couple of his relatives and employees whose names were Bradley and Tickel. When Mr. Dickey passed away, he had not performed the contract he had with Bradley and Tickel. So they employed Jack Renn to try and recover some of their money for them. Jack was not too experienced, and he had me join him to see if we could make Mr. Dickey’s estate perform the contract that Dickey had made with them. We tried the case in Denver, Colorado, and at the conclusion of the case, the judge called the attorneys from both sides back into his chambers. He was a wise and experienced judge and he approached our side with a statement something like this. “You gentlemen have put on a very good case and if the court should find the issues in your favor, your client would recover a substantial sum of money. However, if the court should find that you have not proven your case, then your client would receive nothing.” Then he would turn to the lawyers for the estate and likewise call their attention to the fact that if he found the issues against the estate, it would cost the estate quite a bit of money and that both sides should give consideration to making a settlement of the case. He felt that there was some common meeting ground; and, in fact, ordered both sides to meet later on that evening and see if a settlement could be worked out. Well, each side was a bit uncertain as to how the judge was going to decide the case, and due to the admonition of the judge, we met at a hotel room there in Denver, and we argued until midnight; then we kept on arguing about compromise, and, sometime around two or three o’clock in the morning, we agreed on a settlement. For the life of me, I can’t remember the exact figure, but it was around $50,000 or better. And which, in those days, was a pretty fair settlement of any kind. In any event, the recovery made from the Dickey estate enabled Bradley and Tickel to have enough money to go into the oil business themselves. They were successful and they accumulated good productive oil leases and rotary drilling equipment and trucks and tools, the usual paraphernalia that goes along with oil operation.
They seemed to be getting along fine, and from time to time over the years I would see them; but I don’t believe I ever had any law business with them. Along about 1960 Maybin and I were in Paris, the telephone rang, and the hotel said there was a message at the desk. I went down and there was a telegram that Mr. Wayne Bradley at Wichita, Kansas, had put in a call and I should be prepared to talk to him at about two o’clock in the morning at my hotel. Promptly at 2:00 a.m., a call came through. It was an excellent connection, and Wayne Bradley told me that he and Mr. Tickel had had a falling out, and that Tickel had retained some lawyers at McPherson, Kansas, who were going to file suit for a receivership of their business, part of which was a corporation and part of which was a straight partnership. He was quite worried, and wanted to know when I would be home. I told him I didn’t think I would be back to the states for two or three weeks, but in the meantime I would call some lawyers in Wichita to take care of Mr. Bradley until I returned. He seemed relieved and I did get in touch with some Wichita lawyers and asked them to take charge of anything that might come up until I did get back.
When I returned I got in touch with Mr. Tickel’s lawyers. Mr. Tickel, his lawyers, Mr. Bradley, myself, and the Wichita lawyers I had retained had a meeting at Wichita to see what should be done. Well, the McPherson lawyers had in mind an enormous amount of litigation that would run into thousands of dollars for court costs and accountants and lawyers fees, receivers fees, and I don’t know what all. They explained and outlined that they would want a receiver for the corporation, a receiver for the partnership, some CPAs, a special master, and I don’t know what all.
The method used by Maybin to take care of differences between Dan and Janet suddenly came to my mind. So I said to the lawyer from McPherson, who was their chief counsel, “Why don’t we settle this by just having one of these men, either Bradley or Tickel, put everything they have into two baskets, then give the other party the right to take the basket of his choice.” Of course, the lawyer from McPherson wanted to know what the “basket” was. I said, “That’s just a figure of speech. Instead of having a lot of expensive litigation, let Mr. Tickel put everything that these two men have accumulated through their joint efforts into two piles. He can put anything he wants to into the two piles. All we ask then, is that Mr. Bradley has the right to take either pile.”
Well, Mr. Tickel was a little suspicious of that and his lawyer was very discontented because his idea of making a lot of money through litigation went glimmering. We see-sawed along for three or four weeks, and we finally hit upon this. They said that if Mr. Bradley would put everything in two piles that they would pick one of the piles, or as an alternative, they would rearrange the things into two piles as they would see fit, and Mr. Bradley would have to take his choice. Well, Bradley was no fool, so after a week or ten days of work, he put everything into two piles. He knew that Mr. Tickel had a desire for money, so in one pile Mr. Bradley placed $50,00 in cash, along with tools, leases, and so forth. Sure enough, Mr. Tickel liked the looks of all that cash in one of the piles, so he took that pile and we settled in a period of a few days what could have been a very expensive, long drawn out and a bitterly contested litigation. The idea of the two baskets was the result of watching Maybin have Janet take a piece of cake, cut it in two slices, and give Dan first choice. You’ll find that the old fashioned basket method is a pretty good way to settle disputes of partners or others who are closely associated.
I’ve already mentioned that one of my best friends was Harry V. Howard, and I thought he had a rather unique experience in fixing a fee to probate the estate for an elderly gentleman and his wife. The name of the gentleman was Mr. Hammond and he was quite a character: all year round he wore a full-length horse hair heavy coat. He was one of those fellows whose eyeballs didn’t quite fill his eye sockets and the eyelid would more or less sag down and tears would roll from his eyes although he wasn’t particularly sad about anything. Harry Howard had done some work for the Hammonds over the years and one fine day, Mr. and Mrs. Hammond came to the office of Mr. Harry V. Howard and said they wanted to discuss with him what he would charge to look after the probation of each of their estates. Harry knew that the old folks had a reputation for being rather snug, and he didn’t propose to do the work that would be required, for nothing. So he spent some time explaining, that whichever of the old folks went first, he would have to go through the probation of their estate, handling the tax matters, getting the property transferred to the survivor, then later on, do that same amount of work and tax reports. So after explaining these matters for the better part of an hour, Mr. Howard swung around, looked Mr. Hammond straight in the eye, and said “Mr. Hammond, grab your chair, I’ll charge you $5,000. Whereupon Mr. Hammond, without batting an eye, said, “Now Mr. Howard, you grab your chair, I’ll give you $10,000.”
During the prohibition days, I had an exciting client, a lady bootlegger by the name of Ann Graves. She was a nice looking lady, absolutely fearless, and she thought it was alright to buy and sell whiskey and made a success of her business. I could tell you countless humorous stories about Ann Graves, but I’ll try to limit it to one experience that will tell you what kind of a lady she was. Along about Christmas time, she and her husband, Bud Graves, a monstrous fellow about 6 feet, 6 inches, and very well built, and engaged in the liquor business with his wife, rented a vacant house and brought in a truck load of whiskey and stored it in the house to be used during the Christmas season. Well, the federal government had some snoopers around and they seized this truck load of whiskey, arrested Bud Graves, and hauled him off to Wichita to await trial. They put him in the county jail at Wichita. Well, his good wife carried on the liquor business at Arkansas City, and she got to thinking that Bud must be awfully lonesome and homesick and didn’t have any whiskey to drink, so she’d better take some up to him to wet his whistle.
So one day she dressed up in her very finest and took a medicine bottle, which held a pint or better, and of course, of thinner glass than a whiskey bottle. Ann filled this medicine bottle with whiskey and placed it under her bra next to her bosom. She drove to Wichita, parked her car out in front of the jail, and walked in to see the sheriff to get permission to see Bud. That blooming bottle of whiskey, due to the heat of her body and being completely filled, had expanded and cracked and broke; and as she walked into the sheriff’s office, she was drizzling whiskey and broken glass down her dress onto the floor. She just turned and skedaddled across the street to a filling station, went into the ladies rest room, and washed her whiskey-soaked clothing. She opened the door, naked as a jaybird, and called to the attendant of the station, whom she didn’t know, and asked him to take her clothes and get them dried out, which he did, and then brought them back. She put them on and stalked right back to the sheriff’s office. She said she wanted to see Bud Graves and the sheriff said he’d be very glad to have Bud come up and visit with her, that Bud was a good prisoner, really a friend of his. So Bud came up and she told him about bringing up the whiskey and the trouble she’d had. Bud said, “For God’s sakes, don’t bring up any whiskey. I’ve got the whiskey rights here in jail. The sheriff has confiscated a lot of whiskey and I take it around and sell it to the prisoners and I’ve got a better thing going inside this jail then I had on the outside. These prisoners all want whiskey and while they don’t have any money during the week, they tell their relatives or their girl friends who come up on Sunday that they need some money to buy fruit or cigarettes and they always get enough money to pay me for the whiskey. I’m not worried about being raided or anything. The only trouble I’ve had was the other night when I sold a fellow a pint of whiskey and he took a bottle of aspirins right on top of it. I did have a little trouble with him!”
A little later on, Bud Graves and his wife couldn’t get along together too well and they began having fights and later on, came a divorce. Before the divorce case, a very humorous and what could have been a very tragic thing happened. Their car was parked outside the door of their home and in the glove compartment was a 22 caliber pistol. They had a big argument in their house and Bud threatened to kill her. He went and got his big 45, and Ann knew that he meant business. Ann went dashing out into the yard and Bud went running to the door. Ann ran around the side of the car and Bud fired a shot. Ann jumped to the side of the car and he fired again, and she tore behind a tree. He fired again and Ann kept count of the number of shots that came from Bud’s 45 and when he had emptied his pistol. He hadn’t hit her yet so she ran like an antelope to the car and got the little 22 out of the glove compartment. Bud came rushing at her and she shot and drilled him through the neck. Well, he was bleeding to death so she called the ambulance and the doctors and they came and hauled Bud to the hospital. Bud lived, but he was very humiliated and embarrassed to report that there was a 22 wound in his neck after having discharged a 45 all over the street trying to kill his wife.
One day a nice appearing French-Canadian girl about thirty years of age came to the office and said her name was Leffingwell, that she had been married to Mr. Leffingwell, that they had been divorced, and at that time he was a truck driver. She was awarded the children and $25 a month for child support. She said that following the divorce, her husband had remarried and that a few months prior to her coming to see me, Leffingwell’s father had passed away and that he owned a ranch where there was a large stone quarry. She said that the income of the elder Leffingwell was five to ten thousand dollars a year from this stone. The son was really going to receive most of this income and she thought that her child support for the children of Leffingwell should be increased if possible. Well, Mr. Leffingwell didn’t see why he should increase the child support of several children to more than $25 a month for the whole batch, so we filed an application to have this child allowance increased. Mr. Leffingwell first hired a Moline, Kansas, lawyer; then he got a Wichita lawyer in addition. Then he went to Winfield and got another one; then back to Wichita and got a law firm there; and then he came to Arkansas City and hired a very excellent lawyer there. We had quite a battle, we went round and round, and after a time we’d gotten the child support up to $400 a month. Leffingwell’s second wife was pretty good about trying to help him in all this litigation; and of course, we were representing the first wife and the two wives didn’t get along. So one day, much to my surprise, Leffingwell’s second wife came into my office. She was very frank and said she hadn’t selected me because I was the best lawyer in town, but that her husband hated me worse than any lawyer he had ever known and hiring me would bug him more than anyone she could retain and she wanted to sue Mr. Leffingwell for divorce. Well, the first thing I did was to get the first wife and the second wife together and they got very chummy. For a couple of years they were good friends, and the second wife would baby sit for the first wife. The two of them, when they got together, could think up a lot of things about Mr. Leffingwell that helped us with the divorce case. We filed a suit for divorce for the second wife in Elk County, Kansas, and Mr. Leffingwell had a nice modern ranch home there, and on the ranch was a nice big stone quarry. Leffingwell, in the meantime, had hired another battery of lawyers in addition to the ones he already had, and they thought they had a great play, so they filed a divorce suit in behalf of Mr. Leffingwell in Wichita, Sedgwick County. Well, they went to a lot of trouble to establish his residence in Sedgwick County. They went to a ratty place, got him a room, paid the rent in advance, and paid some rent to show that he lived there for quite awhile before the litigation arose. They got him a postoffice box, they took him down to register him as a voter, and went through a lot of other gymnastics to try to establish his residence in Sedgwick County. Well, that was just dandy with us because the thing that these lawyers were overlooking was the fact that his valuable home and property were over in Elk County, Kansas, so we just kept our proceedings in Elk County and showed the judge these affidavits that Mr. Leffingwell had his permanent home and residence over in Wichita; and of course, we could argue to the judge with a straight face that he had abandoned this fine home in Elk County, had abandoned his ranch in Elk County, and he’d deserted his wife and left her for good, and that the judge should award her this fine home and ranch because Mr. Leffingwell had no more use for it. Of course, this was more than Leffingwell could bear, and his lawyers saw that they had made a bonehead, so they paid us a pretty good fee; and by that time Mrs. Leffingwell was tired of fighting, so she and Mr. Leffingwell went back together. I don’t know how many times we’d file a divorce case for the two and they’d have a terrific battle, then they’d kinda want to go back together. That happened numerous times. On one occasion they decided to go back together and met at Wichita. Mr. Leffingwell got roaring drunk and he and his wife started to fight. They were on the third floor of a corner hotel and the wife was leaning out of the window screaming for help with Mr. Leffingwell slapping and beating her. He beat her unconscious; then he phoned two or three places calling for an ambulance, saying it was Dr. Leffingwell calling. Pretty soon there were a couple of ambulances in front of the hotel; guys running up and down the stairs carrying stretchers and first aid equipment; and “Dr.” Leffingwell, drunk as a duke, walking around trying to supervise the affair.
Another time Mr. Leffingwell was pretty drunk and he called his wife and told her if she didn’t come back, he was going to shoot himself. He said, “Now you can just listen over the phone and if you don’t say you’re going to come back before I count to 10, you can hear the shot and I’ve killed myself.” He was fumbling around with his pistol, intending to fire it and scare her; and he almost blew his foot off, so they had to cart him to the hospital.
Another time he had her come back to the ranch. He was going to make up and be good to her. He got pretty drunk and they got into a fight; he took all her clothes off and took her diamond ring, and kicked her out into the winter night without a stitch of clothes on, and locked the door. Then like old Bud Graves, he went to the door and fired several shots into the dark, trying to hit her, but she hid in a ditch. She finally got to the road, and a truck driver hauled her into town. She walked into the sheriff’s office with very few stitches on and swore out a warrant for the arrest of her husband. Well, these are just a few of the typical things that happened from day to day.
During their series of divorce fights, we discovered that before he had married the second wife, he had her sign what is called a pre-nuptial agreement, whereby she signed away any claim to any property that he might ever have. Well, that was pretty unjust, so one time when he wanted to drop the divorce thing, and wanted his wife back, we insisted that he cancel this pre-nuptial contract, which he did; then when they went at it again and a divorce was granted the pair in Wichita, Mrs. Leffingwell was awarded 80 or maybe 160 acres, part of which was the stone quarry, which would bring her a good income. Shortly after this divorce, Leffingwell was going from Winfield back to Wichita, drunk as a duke, when he hit a bridge just south of Derby, Kansas, and was killed. As a result of that, his first wife’s children received the estate he left. Of course, the divorce case had given quite a bit of property to this second wife, so everyone was happy, except Mr. Leffingwell, who probably died with a smile on his face because he was a high liver if you ever saw one.
My Chinese Restaurant.
When I started practicing law in Arkansas City, one of the old established restaurants was the Saddle Rock Café, near the center of town, and one of the early contracts that I drew up was the sale of this restaurant by Mr. George Chaney to five Chinese gentlemen. The price was $7,500 and the purchasers paid all cash except a $1,500 mortgage which we assumed. It seems that the five Chinese had later discovered that some of them were Tong and some were anti-Tong and soon there were only four Chinese around this café. A few weeks later, there were only three Chinks, still a week or so later, only two, and the rumor was that some of these Chinks had been killed and were buried under this café. I had gotten a divorce for one of these Chinese boys from a girl up in Detroit; and one morning the two remaining Chinese boys came rushing up to my office and said in pretty good English that I’d been good to them, they liked me, and they were leaving and here were the keys to the restaurant. It was all mine, and good luck, and they put on their hats and went down the stairs, and to this day I haven’t seen them. Anyhow, I had a café! I knew they had agreed to pay $7,500 so I thought I might make a dollar or so out of it, so I tried to run it. I’m telling you, I didn’t know anything about cooks. The waitresses and the cashier stole all the money and the people in the kitchen stole all the food. They didn’t clean up the place and it got so it stunk to high heaven! A fellow came in one day and said he didn’t have any money, but he would pay off the mortgage to the bank of $1,500 in full consideration for the café. I said, “Brother, you’ve got yourself a deal.” I turned the café over to him and Lo and behold! He was a bank robber and hi-jacker and he had purchased that café for a blind. In the evening when the café was going good, he would go out and talk to the customers; and then go out the back door and jump in a high-speed automobile. His specialty was to go to various places in Oklahoma (Ponca City, Blackwell, Newkirk, or wherever there was a picture show) and simply walk up with a pistol and relieve the cashier of all the money of the show and then be back in the restaurant talking to some of his customers before they had finished their dinner. It was a pretty good deal for him; but he overplayed it and soon got caught and was sent to the state penitentiary.
Helping Harry V. Howard With a Case.
When I got out of the Air Force in 1946 and came home, my friend, Harry V. Howard, said he had a case he wanted me to help him with. It had been written up in newspapers in Kansas as a woman who had been arrested for running a sex school in Wichita. She was an Arkansas City lady of a very fine family and she was charged with having an apartment in Wichita, where she would have young men and women come for the purpose of teaching them all about sex and so forth. Well, when the case came to trial, Harry and I were defending this lady. The county attorney put on a lot of evidence and at the conclusion of the State’s case, we moved to dismiss most of the counts because there was nothing more than solicitation. Of course, soliciting a person to engage in some criminal act is not sufficient; there had to be some overt act in connection with or following the solicitation. We got all the counts dismissed, but one, as I recall, The judge overruled us on this and said we would have to put on our evidence and leave it up to the jury on this one count. Now this one count was an overt act, and the state, in the forenoon had put on a boy that looked to be 14 or 15. He had on a little sports shirt, his hair was combed like a little boy. I’ve forgotten what kind of trousers he had on, but his general appearance would lead one to believe that he did not exceed 15 years of age. The state rested its case just before lunch and we made our motions to dismiss and the court overruled them. Then in the afternoon, we started putting on our evidence. I don’t know if it was Harry Howard or myself that looked back into the audience and saw a face that looked familiar. Harry and I started discussing it, and it dawned on us that a young man who looked to be 25 or 30 years of age was the same person who had been on the witness stand looking like a little boy in the forenoon. In other words, the state had had him dressed to look like a very young youth to prejudice against our client; and at noon he’d gone home and changed into his regular clothes and had come back to see how the trial was going. He was sitting back near the door, where he thought he wouldn’t be observed. Well, we thought that trick of the county attorney was dirty pool, so we called as one of our witnesses the “young man in the morning” and the “older man in the afternoon,” so to speak, and had him put on the witness stand, where he admitted that the County Attorney had told him to dress up like a boy and have his hair combed like a boy, and that he had done it as the county Attorney had suggested. He hadn’t liked wearing those little boy clothes and had gone home at noon and changed into his regular garments. When he admitted that, the jury got disgusted and acquitted our client of the heinous charge of running a sex school.
Most people think of lawyers as being fairly smart and never being the victims of “Slickers.” Well, just the reverse is true! I think the average lawyer is perhaps more gullible than any other person. I will relate a couple of incidents to try and justify this statement.
One afternoon a gentleman walked into my office and had me do a little legal work for him that only ran into a small amount of money. At the conclusion, he said he didn’t have any money to pay me but he had an 80 acre oil lease down in Texas, and the lease was about to expire; and if I would pay the rental of a dollar an acre ($80.00) and keep the lease alive for another year, he would give me a half interest in that lease and I was to call my bill paid in full. This gentleman made one mistake, however. He kept telling me how near good oil production was to his lease. It just so happened that I had been down in Texas on a case just a short time before and I knew that there were no oil wells producing anywhere near the land described in his lease. After I listened to his pitch, I just gave it to him straight! I asked him, “What is your racket?” Then he told me. It went something like this. Every spring he would go down to Texas, sometimes he would use the same name over and over. He would catch some old fellow who had a ranch of fifty or sixty thousand acres. Usually there would be a big mortgage on it, but that didn’t make any difference. He would have this rancher give him a lot of oil and gas leases on small tracts, rather than on one lease on a large tract, say 10,000 acres. Then this slicker would start north with a whole handful of oil and gas leases. He would go to a doctor, have the doctor give him a little medical treatment, and give the doctor one of the leases. Then he would go to a dentist. Then he would go to a lawyer—they were quite a specialty—then he would go to anyone else he could. He said that on a good day he could plant four or five of these 80 acre leases. Of course, the doctor or dentist or lawyer, seeing a possible oil bonanza down the road, would send $80 down to the landowner to pay for the coming year’s rental to keep the oil and gas lease alive. If the slicker could get four or five of those leases planted each day, that was $400, and he’d split with the landowner. He said that actually it was a very profitable business; and if I knew of anyone who wanted to buy an oil or gas lease, or would fix his car, or fix his teeth, his appendix, or anything else, taking an oil or gas lease in payment, I was to let him know and he would make it right with me. I told him I didn’t think I wanted to get into that sort of a racket. But he was a very interesting gentleman, well groomed and well educated, and he had devised a pretty good scheme to make a rather easy living.
One day a confidence man came into my office, very poorly dressed, and really looking the part of a man who had just got out of the penitentiary. He closed the door and swore me to silence. He said that he’d served most of a five-year term for having stolen a bunch of diamonds. He further stated that after he had stolen the diamonds, he had hid them and they hadn’t been recovered by the insurance company or the owner. He said the insurance company had to pay the owner of the stolen diamonds some $50,000; and that a few weeks before he got out of prison, the insurance company had a man come to the penitentiary to tell him that if he would return the diamonds to the insurance company, they would pay him $20,000 because in turn, they could take the diamonds back to the owner and draw down the $50,000 that they had paid to him as insurance. Well, the confidence man wanted to know first if there was any chance that if he was caught with these diamonds, whether or not he would be sent to the penitentiary again; and second, he wanted some lawyer to help him get his money because he feared that if he dug up the diamonds and brought them in to the insurance company, they would take them, then just tell him to go whistle.
As he was spinning his yarn to me, it flashed through my mind that I’d heard of this scheme, and I knew how they worked it, so I decided to see if I could play along with him and perhaps arrest him and his accomplice at the opportune time. You see, the combination worked something like this: the confidence man would give the lawyer half of whatever they could receive from the insurance company on the return of the diamonds. Then as the plot thickened, the confidence man would come in one day and say that the insurance man had been to see him and would be in the lawyer’s office that afternoon and make a deal for the diamonds. That afternoon as the confidence man would be sitting in the lawyer’s office, the so-called insurance man would come in with his briefcase and blank drafts. He would want to see the diamonds, want to count them, and would put them under glass and test them. He would then run through a list to see if all the bracelets and pins were there; and if they were, he’d say that they were ready to pay in exchange for them. He would make out a pretty good looking draft and would say, “Now who do I make it payable to?” And, of course, the hungry lawyer would say, “Make it to me, or me and my client.” Being anxious to get some money, he would go over to the bank and endorse the check for $20,000 and give the confidence man $10,000, keeping $10,000, and everybody would be happy until about a week later when the lawyer would receive the terrible news that the check was no good and that he would have to come over to the bank with $20,000 or else.
Well, I listened to the confidence man and never let on that I knew what his game was. I told him that when he got hold of the insurance man, to come back and see me. In the meantime he was working on at least four or five lawyers in various towns in Oklahoma. A rather humorous thing happened! He gave my name to a number of these lawyers as the attorney for the insurance company, who would eventually appear and pay good money to get those diamonds back. When it came time for them to work the squeeze play, he would bring someone in and introduce him as D. Arthur Walker. But the amusing thing was that some of these Oklahoma lawyers got so excited about the opportunity to make some quick money that at least two different Oklahoma attorneys drove up to Arkansas City, looked me up, and wanted to know when I’d be able to raise the money for the insurance company, and when I’d be down, and so forth. So I had to break down and tell them that this fellow had approached me with the same story and I had been stringing him along in the hope that he and his accomplice could be caught. I circulated letters to a great many lawyers in Kansas and Oklahoma, describing this man and his scheme and how it worked. Eventually the man was picked up and I don’t know if he had to serve any time or not. It was just an experience I have related to show how “slickers” will pick on lawyers as pretty easy marks.
One of the quickest fees I ever made was in helping a farmer and his wife get out of the clutches of a confidence man. It’s a true story and goes about as follows. One evening about 10 o’clock, my phone rang and it was some farmer up in the north part of Cowley County. He wanted to know if he could come down and see me right away—it was very important! I told him I’d meet him at my office about 11 o’clock. I called Mr. Cunningham, told him of the call I’d had, and that we might have to draw up some papers and maybe a law suit that night. So he called a stenographer; and at 11:00 o’clock the farmer and his wife came in. Mr. Cunningham was there as well as a stenographer. The farmer and his wife then told us that a salesman from Wichita had visited them that afternoon at their farm and traded them some 20,000 units in an oil royalty company in exchange for 320 acres of land. It was a fine 320 acres and it was the home of the farmer and his wife. The salesman from Wichita had represented these oil units as being very valuable in the future, giving them a good income for life, and all that. Of course, he had the deed to their farm and they had this handful of units. The farmer and his wife reconsidered the matter and became quite alarmed. They decided they wanted to revoke the deal, that they’d been slickered. Well, first of all, I asked them what they would be willing to pay if someone could get this entire deal revoked and get their farm back for them. They made the proposition—and you could tell that they thought it over—that they would give, for our fee, one-fourth of whatever we could get back for them. I told them that no doubt the salesman had already conveyed this land to some innocent party and there might be some hard litigation for several years, and we might not get it back then; or we might get it revoked without a trial.
We got busy at once, and by midnight we had dictated and had typed up a law suit for this farmer and his wife against the salesman and the oil company. I called the courthouse at Winfield, Kansas, got the clerk of the district court to come down and meet me at the courthouse at about one o’clock in the morning, and I filed this law suit at that hour of the morning. Now, most lawyers think that the only time you can file a law suit is in the daytime during business hours; but there isn’t any law that says that you can’t file a suit any time of the day or night if you can get the clerk there and have him sign it. Of course, I wanted to have a law suit on file so that it would be a notice to the world that from 1:00 a.m., that morning, this farmer and his wife owned that farm and that they had been swindled out of it; and the pending law suit gave notice to the world accordingly. Also, I called up the Registrar of Deeds, and he was there at the courthouse at about one or two o’clock in the morning. I had an affidavit filed with the Registrar of Deeds so that if an abstract of title was called for, it would show up on the abstract as well as this pending law suit. Then I got copies of those instruments I had filed and I started for Wichita; and at seven o’clock on the next morning, I was in Wichita hunting for this salesman. I located him about 8:00 a.m., and I told him that we had filed this law suit; that he’d violated the Blue Sky law as well as the Securities and Exchange act; and we were not only going to sue him, but we were going to have him arrested unless he would re-convey that land to the farmer. In turn, I had all these units he had given them, signed back to him. Well, he was quite alarmed and said he would be quite willing to return the land back to the farmer and his wife if they would give back the units to him. That was done! I was back in Arkansas City by 10 or 11 o’clock that forenoon, and the farmer and his wife came up to our office, tickled to death! They gave a deed to Mr. Cunningham and me for 80 acres of land, which later sold for a good price, and made a very good fee for an interesting night’s work.
I must confess that I believe in miracles! I was working on a murder case, when a genuine miracle occurred. I had been called to the jail at Winfield by Mr. Brazelton to see if I could help his wife, who was charged with murder. Mr. Brazelton was about six feet, seven inches tall, a very large man. He must have weighted at least 300 lbs., and his wife was a little bitty thing; she probably weighed 80 lbs., wringing wet, and she had only one good eye. She had a daughter who had married a no-account boy. He wouldn’t support his wife, so the wife and baby came back to Brazelton’s. Mrs. Brazelton related to me at the jail the circumstances that followed when the son-in-law appeared at her home.
“Here come my son-in-law and he come up to the screen door and he said, ‘I’m acomin’ in,’ and I said, ‘No you ain’t,’ and he said, ‘Yes I am,’ and I run back in the bedroom and got Daddy’s pistol and I fired a shot and hit him right in the head, and Mr. Walker, if that ain’t self-defense, I don’t know what is.”
Well, she had it analyzed pretty good, but there were some bad features about this thing. First of all, here was a man who had a right to come into the house to see his wife and baby. The next bad feature was that he didn’t have any knife or gun on his person. Next, we were unable to show that he had a bad reputation for being vicious because he didn’t live in this community.
For some reason, the county attorney wanted to make a big case out of this deal. He displayed in the courtroom a model of the back porch of the Brazelton home showing the screen door and all the other paraphernalia. The state put on a pretty good case; it was time for us to put on a defense! I tried to show that Mrs. Brazelton was in fear of her life, that she knew her son-in-law was no good and vicious, and so forth. The prosecution would object and say, “Now, all Mr. Walker can show is that the defendant here, this little lady, knew of his reputation, but she didn’t know anything about his reputation, so how could she testify that she shot in self-defense?”
Well, I was having a pretty hard time trying to explain to the judge that if she thought, or had reason to believe, that he meant to do her bodily harm, she had a right to use such force as seemed reasonable under the circumstances. The judge didn’t know much about criminal law and he wouldn’t permit me to ask those questions or to get those answers in, so we took a recess.
I was sitting there at the counsel table, talking with my client and trying to figure out a way to get this evidence before the jury, when someone brought a note to me indicating that someone wanted to see me out in the hall. I stepped out into the hall, and there was a fine, dignified gentleman. He said, “I’m Reverend , I’m a brother of the deceased. My brother was the most vicious, cruel, and dangerous man I have ever known and a man that you couldn’t dare trust as he was capable of injuring you. All his life he hurt our father and mother. I was raised with him and I know him to be the most inhuman person that God Almighty ever made. I’m a minister down at New Orleans, and I’ve paid my own expenses to come up here to testify on behalf of this lady. I never saw her before, never heard of her before; but I read about the killing in the newspapers and I was afraid that some innocent person might be convicted. I’ve heard this testimony, and I want to testify in behalf of this little lady.”
Well, of course, it came as quite a welcome shock; but I thought perhaps he was a “plant.” Instead of testifying that his brother was a fiend, he might testify that his brother had been very kind and lovable, and blow me out of the water! So I called over one or two people and asked, “Reverend, would you repeat in front of these people what you just told me?” He said, “Yes, sir,” and he did. So I knew that if I put him on and he switched his story, at least I could make some effort to impeach him, by showing what he had told all of us there together.
The judge started the trial again; and I put this gentleman on the stand. He was a stem winder! He was a real minister of the Gospel, and he did have a church in New Orleans, and he related all the early experiences of the deceased and himself, and told of the cruel, inhuman things his brother had done—kicking his own mother, taking a pitchfork and knife to his father, how he delighted in pouring gasoline on animals and setting them on fire, and I don’t remember what all else. He revealed that his brother’s reputation for being a dangerous, vicious man was well-known throughout the community in which he lived.
He further told about how, without any solicitation, he had come to this trial to help this lady, that he had paid his own expenses, and was there in the interest of justice. Of course, he made a good witness; and after a witness of that kind, it didn’t take the jury very long to acquit Mrs. Brazelton. But to me, it was just a miracle! A man appeared from nowhere, and at a time when I needed a witness of that kind the most.
My Mennonite Case.
Some years ago I had a case with quite a bit of human interest in it and also quite a bit of money involved. It involved the setting aside of the will of a bachelor Mennonite. I won’t mention his last name. He lived near Newton, Kansas, and his first name was Jake. He had accumulated a couple of million dollars through hard work and thrift. He was so thrifty that he never married, and he drove an old broken down car with a five gallon can of gasoline in the back end. He would drive across country looking at his farms and other property; and if he didn’t find a filling station selling gas at a discount, he would drive until the engine quit, then he’d go and lift up the lid on the back of his car, get out the 5 gallon can, put it in the gas tank, and keep on driving and looking for a bargain gas station. He had them pretty well spotted and that gives you some idea of the thrift of the gentleman.
Well, he had a will made and he had added several codicils. In the will, he wanted a trust set up and the income was to be used to carry out and have performed all of the doctrines of the old Amish Mennonites. Now you may not know this, but there is the old Amish and the later Amish. The old Amish people are the ones who won’t drive a buggy that has rubber tires. They’ll plow with mules, but not with tractors. They are very religious; but they don’t want to spend the money to build a church. They meet at each others homes. Of course, a part of the old Amish doctrine is that you shall not serve on a jury; you shall not seek or hold an elective office; you will not join the army or the national guard; you will not contribute money to the Red Cross because the Red Cross goes with the troops in time of war and aids the injured and relieves the suffering; and so on. That is part of the old Amish philosophy.
Now, when Jake died, the lawyers up around Newton, who represented him, filed his will for probate. One lawyer at Newton represented a group of his nieces and nephews, his nearest kin, who had been left no money. The nephews and nieces had retained the Newton lawyer to help them; and he got a lawyer in Wichita to assist him. They went and opposed the will on the grounds that Jake did not have sufficient mental competence to draw a valid will or have one drawn for him. Well, Jake had been a member of the Kansas Legislature and was well known as a prominent and wealthy man; and the claim that he lacked testamentary capacity was plowed under by the court immediately. It was about this time that the lawyers at Wichita and Newton decided they needed an attorney, and they came to see me. We still had a little time to appeal, so we appealed from the order of the probate court admitting this will to probate and I said that I thought that we could set that will aside on the grounds that it was against public policy. It didn’t make any difference to me whether Jake was of sound mind or not; it looked to me like such a will was invalid as it was in violation of public policy. The Mennonites hired a battery of excellent lawyers. One of them was George Stallwitz of Wichita, who was a friend of mine for many years, and he was a fine lawyer. The opposition, a battery of very able lawyers, would laugh and smile and smirk when I said that I thought we could set this will aside on the grounds that it was contrary to public policy.
The first deposition that I decided to take was at Washington, D.C., and I went there and took the deposition of officials in charge of the draft and the Red Cross. I showed by the men who were handling the drafting of men for military service that the spending of Jake’s money to try and get men to resist the draft and avoid military service would be injurious to the military defense of this country, and so forth. I showed by the Red Cross deposition that they would be injured and hampered by having money spent urging people not to contribute to the Red Cross. From there I went to the people trying to sell defense bonds and showed that if Jake’s money was used to get people not to buy bonds because part of that money was used for national defense, it would be injurious. I took the deposition of the Adjutant General of Kansas, who is head of the National Guard; and he testified that the use of funds to oppose the National Guard, trying to get men not to join or to resign if they had signed up, would be injurious to the defense and safety of the State of Kansas. I started on down the line with other depositions, and Stallwitz already knew, and the other boys were getting wise to the fact that they were on pretty shaky ground. I honestly believed that will was against public policy and invalid, and I still do. In any event, the other side got scared and paid this handful of nieces and nephews that we represented about one hundred thousand dollars. When my good wife learned that I had made a pretty good fee out of this case, she immediately planned and added on a couple of rooms to our home. They are nice, large, comfortable rooms; and I always refer to them as Jake’s contribution to the health and happiness of Maybinsyde.
The Rich Woosie Deer.
As most of you may know, the Osage Indians have their mineral rights held by the government in common, that is, the government leases their land to various oil companies and the money received for the sale of the leases and the sale of gas and oil is put in a common fund and divided among some 2,300 headrights, so that each Osage draws the same amount per headright as any other Osage. Now, in other tribes, it’s different. I’m thinking particularly of the Creek Indians. When a Creek got his farm from the government, he also got the minerals. If oil was found on the Creek Indian’s land, he got all the oil income and the other Creeks might starve to death. Of the wealthy Creeks, Jackson Barnett was probably the wealthiest man and Woosie Deer was probably the wealthiest Creek woman. I had many contacts with Jackson Barnett over a period of seven or eight years, and I just had one contact with Woosie Deer, and I’ll relate it.
There was an Osage Indian boy in Arkansas City by the name of Lawton Dial, and he was a very fine chap. He was fat and heavy; weighing about 250 lbs., and he was a very nice, pleasant fellow. I had several business dealings with him. One day he called me and said his cousin, I think it was, had been arrested at Muskogee, Oklahoma, and was in jail; and he wanted me to go down to see him. Lawton Dial drove his car to Pawhuska, Oklahoma, and there Lawton met another Osage Indian friend. He was not rather fat: he was awful fat. He was a big Indian and he must have weighed 400 lbs. He had a brand new Lincoln roadster with a little jump seat behind; big balloon tires on it (a new innovation at the time) and in those days balloon tires were much larger than the present ones. They were just enormous doughnuts! So this Indian got in this Lincoln roadster with brand new balloon tires, Lawton got in with him, and the two of them could hardly squeeze into the front seat, so I got into the jump seat behind. We left Pawhuska after dark and headed for Muskogee. This big Indian was driving the Lincoln car and he had a pocket filled with two-ounce bottles of Jamaica ginger. He would pull one out of his pocket, thumb the cork out, and toss off the bottle. I’ve forgotten whether Lawton drank any or not, but I didn’t. After this Indian had consumed eight or ten bottles of this Jamaica ginger, he was really wheeling the Lincoln down the road. In those days the road was just a little ribbon of concrete and the turns were quite sharp. He would take those turns at 70 or 80 miles an hour and those balloon tires would just scream as we would work our way around the curves. I was in that little jump seat praying to God to get me there safe, if at all possible. We were about 30 or 35 miles from Muskogee when a speed cop on a motorcycle pulled up alongside of us with his siren blowing. We were going about 80 or 90 miles an hour at the time; and this race with the cop just tickled that big fat Indian to death. He didn’t stop! I suppose on the straightaway we were doing 110 or 120. He continued drinking Jamaica ginger at regular intervals, throwing the bottle away, and laughing. It was really good fun for him! When we hit the outskirts of the town south of Muskogee, we started hitting drainage ditches on the streets. The car started bucking and jumping, making it necessary for the driver to slow down. The speed cop, who had chased us all the way, pulled up beside us and the cylinders on his motorcycle were absolutely red: just as hot as could be. He started giving the Indian driver hell, and I said, “Officer, I want to thank you for catching up with us. I have been scared to death.” So he wrote out a ticket for the Indian driver and said to him, “Now you follow me down to jail.” The cop went over to start his motorcycle: the engine was frozen and the pistons stuck. Well, the cop was mad and started giving us all hell. I said, “Don’t give me hell, just take this boy to jail. I’ve seen the last of him, I hope.” So the last I saw of the big Indian, the cop was taking him to jail.
The next morning I went over to the jail to see my client. He was a Sioux Indian boy, a nice looking kid, charged with adultery. It seems that Woosie Deer had been married and she got a divorce. The usual divorce order prohibited her from remarrying within six months. Well, less than six months had gone by when she and this good looking boy had gotten married. Of course, she had a guardian—and the guardian and his lawyer had a good thing going as long as she wasn’t married. They could see that their income was going to be cut off because now her husband could run her affairs. So they decided (and they had an Oklahoma decision backing them up) that they could arrest this boy for adultery for having married this girl within the prohibited six month period. It didn’t take a genius to figure out what the situation was. These men didn’t really care anything about sending my client to the state pen: they just wanted him to get out and get gone and leave them and Woosie alone.
I told them that I thought if they would make a nominal bail, my client would come back to Kansas, and then go on back to the Dakotas where he was from, and they would probably never see him again. They seemed to think that was a good idea so they got hold of another car. I made the return trip with Lawton Dial and his cousin, the Sioux Indian. Again, it was at night, and this time Lawton got hold of a bottle of whiskey. He wasn’t a drunkard, but he was nipping all the time, and we were driving on one of those narrow strips of road when—My God! We sideswiped a car and just peeled off all the tin and everything that was loose on that side of the car. I supposed that Lawton would stop, but he didn’t stop! He just thought it was an everyday affair. We came careening into Kansas about two in the morning. I asked the Sioux if he had any money and he didn’t! Lawton said that he would pay me back sometime. I’ve forgotten whether he ever did or not, but I was never so glad to get back home and get my feet on the ground after that wild ride down and back with crazy Indians.
The Psychological Approach.
Ordinarily the law suit is won by the party that has the facts or the most appropriate law, but in some instances a psychological approach will win you a law suit. In the little town of Oxford, Kansas, there was a very successful banker by the name of Barnes. Mr. Barnes was not only the president of a very active bank and a leader in the Methodist church, but, among other banking practices, he made a practice of drawing wills for various customers and depositors of the bank. Usually, if the party for whom he was drawing a will had no one else to name as the executor, he would suggest in a nice way that he would be willing to serve as executor of the estate.
Over the years this had become a lucrative practice and he was in competition with the lawyers. Some of them didn’t like it! In that area there was a well-to-do family by the name of Scroggins. Mr. Barnes prepared a will for Mrs. Scroggins and she named Mr. Barnes executor of her will. Mrs. Scroggins had a son who was a nice boy, but pretty much of a ne’er-do-well. He ran a pool hall, sold a little beer; and of course, Mr. Barnes, being a good Methodist, suggested to Mrs. Scroggins that she not leave her son anything at all. She did as he had suggested and soon died. The Scroggins’ heir, who had been cut out of the will, came to see John Boyle, an active lawyer in Arkansas City, and he, in turn, asked me to help him with the matter. We filed a suit to set aside this Scroggins’ will and get for the son his fair share of the estate. John Boyle suggested that we try a psychological approach and I told John to go ahead.
Boyle came up with two ideas that I had never heard of before, but I thought both were rather novel. First of all, he went over to the Probate Court in Sumner County—the county adjoining Cowley County. Mr. Barnes’ bank was in Sumner County and most of the wills that he probated were handled in that county. Mr. Boyle went to the Probate Court in Sumner County and went through all the records of the past fifteen or twenty years of estates in which Mr. Barnes had acted as executor or administrator of a will or estate. He made a list of the cases and the amount of fees allowed to Mr. Barnes. The total amount was staggering!
John Boyle checked over all these cases and the fee allowances, and got out subpoenas for witnesses to identify those records. Well, Mr. Barnes heard about this and he was smart enough to foresee that when it became public that he had received thousands upon thousands of dollars for his services as executor, there would be a considerable number of eyebrows raised. The last thing in the world that Mr. Barnes wanted was that kind of publicity. As executor of this will that we were attacking, Mr. Barnes retained Charlie Roberts, a very prominent and able lawyer of Winfield, to represent him. Charlie Roberts was a very shrewd individual and could foresee many oncoming events.
Shortly before the case came to trial, Mr. Boyle got a list of the best and most intimate friends of Mr. Barnes. Boyle would drive out, pull into the farmyard of these fine, prosperous farmers, who were good friends of Mr. Barnes. He would ask each farmer if he knew Mr. Barnes. If the farmer responded, “Yes,” Mr. Boyle would then say, “Would you have any objection to coming over to Cowley County and testifying that you’ve known Mr. Barnes for many years and that you would not believe him under oath, and that his reputation in Sumner County, as far as truth and veracity is concerned, is very bad?” Of course, that kind of question raised the hackles of whatever farmer he was interrogating, and usually the farmer would say, “Why, certainly not! I consider Mr. Barnes a fine gentleman.” So Boyle would not argue with him, but responded, “Well, if you don’t care to testify, I’ve got a dozen men who will, and I thank you very much.” Mr. Boyle would then go on down the road. The farmer would go in the house, ring the telephone, get hold of Mr. Barnes, and tell him what was going on.
Well, as Mr. Boyle went from one of Mr. Barnes’ friends to another, making the same request, always telling them that if they were reluctant to testify, that he, Mr. Boyle, had at least a dozen witnesses who would be very happy to testify about Mr. Barnes, and that they intended to show the amount of money that he had taken from widows and children under the guise of executor’s fees—of course, all this got back to Mr. Barnes. It made him so worried that he couldn’t sleep! Finally he told Charlie Roberts to settle that case, no matter what it cost, and that’s exactly what Mr. Roberts did. He called Mr. Boyle and me in, and accused us, in effect, of blackmailing Mr. Barnes indirectly. He said the case was one that should be settled, to which we agreed, and he made a very liberal settlement upon our client.
The Bonds in the Paper Sack.
Another interesting law suit was over the will and estate of U. S. Simms of Rock, Kansas. Mr. Simms was a very well-to-do farmer and he and his wife (through hard work and economy) had accumulated a half million dollars or more in property. They were clients of Mr. Charlie Roberts and his son, Lloyd Roberts. Mr. Simms had the Roberts’ law firm prepare two wills that were identical. One was signed by Mr. Simms, and the other was signed by Mrs. Simms. They were not contractual wills; that is, when contractual wills are drawn and one of the parties dies, the surviving party cannot change the will. These were simply identical wills and not contractual. Now Lloyd Roberts had a very unique way of soliciting law business, and I guess it was perfectly legal. He would go out to a well-to-do farmer (and of course, Lloyd Roberts was rich) and tell the farmer that at the present time he was a little short of cash, and he would like to borrow five or ten thousand dollars and would be willing to pay 6% interest. At that time the best rate of interest you could get on a savings account or a certificate of deposit was 3% or 3½% or maybe 4% interest at the highest. So an opportunity to get 6% on a note signed by a man as wealthy as Lloyd Roberts was something that the well-to-do farmers would be glad to have. Of course, Lloyd would pay the interest from time to time as agreed upon, and that gave him an excuse to go out and visit with the farmers and whether or not he started with their business, he would wind up with it.
Well, U. E. Simms was 94 years of age and he was going out to harvest wheat on the 4th of July when he had an automobile wreck, which took his life. So Lloyd Roberts filed the will of U. E. Simms for probate, and Lloyd went on to Colorado to take a few weeks vacation. In the meantime Mrs. Simms found out that none of the property was to go to her brothers, sisters, nieces, or nephews; further, that the will she had signed gave nothing to her brothers, sisters, nieces, or nephews. She wanted to change her will! Some of her neighbors said she could and some of them said that she couldn’t. So she invited me up to give her some advice, and I took Mr. Iverson with me. We met with Mrs. Simms and all of her relatives and invited at least ten or twelve neighbors to come in to see that no one took advantage of Mrs. Simms or misrepresented anything to her. We spent a full afternoon there with that group and Mrs. Simms signed an election in which she elected not to take, under the will of her husband, but to take what the law would give her, to wit, one-half. Then she also took her old will to her brothers, sisters, nephews, and nieces, and she gave a power of attorney to one of her nephews, who was an adult and a very honorable man. She had a safety deposit box in the name of herself and her husband, so we went down with her and her nephews and nieces and emptied the deposit box, listing the contents, and there was something like $125,000 in government bonds and some cash and other securities. The nephews were to put these bonds and securities in a Udall bank for safe-keeping. Then we got in touch with Bob Martin of Wichita and we filed a suit in the Federal Court to have a judicial hearing, a determination as to whom the government bonds belonged, some of which were in both names, some in one name only, some in the other name, and some in one name with the words, “and or the other,” and so forth. When Lloyd Roberts got back to town, he got the key that Mr. Simms had to this deposit box. It was similar to the one that Mrs. Simms had used, and he went down to the lock box and opened it; and of course, everything was gone and Lloyd hit the ceiling. He called for a hearing in the Probate Court to determine where the assets of Mr. Simms had gone, and we told our clients to go to the bank at Udall and bring the government bonds and securities down so that we could show the court that no one had run off with them.
On the morning set for this hearing, Lloyd Roberts came into court and gave about a thirty-minute speech, and he jumped all over Bob Martin, Mr. Iverson, and myself, claiming that we had carried out the greatest bank robbery since the James boys and the Dalton gang, and it was a matter that should be reported to the federal government. He lambasted us in great style. In reply, I simply got up and told Mr. Roberts that he needn’t worry about the federal government being notified because we had filed a law suit the day before in federal court, telling the government all about it and asking for a judicial determination as to who legally owned the bonds. As a matter of keeping faith with our local judge, we thought we would show him that we had possession of the bonds and securities; and we stepped out into the hall and asked the nephews if they had brought the bonds and securities down from Udall. They said, “No.” They had come by the Udall bank and the bonds and securities had been lost. That news just about floored us!
We told them to go back to the bank at Udall and stay there until they found those bonds and securities. They went up to Udall and they must have been gone a couple of hours and finally they came back, greatly elated. Those numbskulls had taken that paper sack full of valuable papers up to the Udall bank and without telling the president what to do, they threw this paper sack with these bonds and securities on his desk. He thought it was the remains of the janitor’s lunch and he pitched the paper sack on a bunch of trash at the back of the bank. On the following day, all that trash was swept out and burned. Our clients got there just in the nick of time before the trash was burned. The Roberts firm then hired George Templar, who is now a Federal Judge in Kansas and an able lawyer. The Templar firm, the Roberts firm, and ourselves had active litigation for several months. We went to the Supreme Court of Kansas once, and we prevailed there. The Roberts and Templar people decided that they might be on shaky ground so they made a settlement with Mrs. Simms and the nephews and nieces, and we all lived happily ever after.
Some Insurance Cases.
Although I have represented a number of insurance companies, I expect that I have sued insurance companies ten times as frequently as I have defended them.
I have found it not only more interesting but more remunerative. As a result of some of the cases I have had against insurance companies, they have had to re-call and rewrite some of their policies. For a company that had fifty or one hundred thousand policies outstanding and they want to re-call them to make changes, that runs into quite a printing figure. I want to give you one or two illustrations because I thought they were rather novel and interesting.
For many years the Hill-Howard Motor Company was one of the big automobile distributors in this locality. One afternoon after the banks had closed, a gentleman came into the Hill-Howard concern and wanted to buy an automobile. He said that his name was, we’ll say Baker. He showed his bank book and identification card as an employee of the Santa Fe, and the bank book showed a substantial balance. Hill-Howard called the bank and they verified that Mr. Baker had a good checking account, sufficient to take care of any check that he would write for an automobile. So this alleged Mr. Baker wrote Hill-Howard a check; they delivered the car to him; and he left town. They haven’t seen him since! Of course, it developed that some thief had broken into Mr. Baker’s apartment and taken his bank book and identification papers and perpetrated the fraud upon Hill-Howard.
Now Hill-Howard had an insurance policy which protected them from loss from fire or theft of a motor car. We made a demand upon the insurance company, claiming that this scheme was really nothing more or less than a theft. The insurance company refused payment and we brought suit and prevailed in the district court. The insurance company appealed to the Supreme Court of Kansas, and we prevailed there. The crux of the matter was that when you use a scheme to obtain property by fraud, that is what you commonly call “larceny by fraud.” Of course, larceny is a form of theft. Therefore, an insurance policy that protected Hill-Howard from theft used the broad term and “larceny by fraud” is a component part of the overall word, theft. Anyhow, after we prevailed in that law suit and it became final by the decision of the Supreme Court, the insurance companies that were writing automobile fire and theft insurance, re-called thousands and thousands of policies and had new ones printed. The expense must have been terrific to make that correction in the policies. You will find, if you examine your own automobile fire and theft policy, that usually they will have a clause that excludes their responsibility if someone obtains the car through misrepresentation, or larceny by fraud.
One time I had an insurance policy on my good wife, Maybin. She was out riding one day and the horse stumbled and down they went—Maybin breaking her coccyx, commonly called the tail-bone. Maybin was looking through her insurance policy and found that it was to pay her hospital and medical bills in case of a broken pelvis. I told her that I didn’t think the coccyx was a part of the pelvis, but Maybin has always been smarter than I, so she got the dictionary and convinced me she was correct. The insurance company tried to laugh me out of court; but after they too, read the dictionary and some cases that Maybin had dug up through her industrious research, the insurance company paid off. I think they re-called a number of their policies and changed them.
Another small, but interesting case, was that of a man who took out a policy that cost him a dollar, but was to pay his widow a thousand dollars if he was killed through the collapse of a building. This man was an oilfield worker and they were trying to pull the casing out of a well, the oil derrick buckled and collapsed, fell on this man, and crushed and killed him. The widow brought me the policy, which set forth that she was to be paid $1,000 if her husband was killed through the collapse of a building. Now it so happened that some years ago, after World I, the veterans of the war wanted to have a memorial building constructed in Winfield. They visualized a Memorial building as a place where they could sit around and play billiards, cards, etc., and have a little barroom, a reading room, and be out of the weather and enjoy life.
The citizens of Winfield voted bonds in a good amount for a Memorial building; then some of the lunkhead city officials decided that the building visualized by the veterans would cost too much. They put up a big granite spire on a lot just east of the courthouse! The veterans didn’t think that was much of a building because they couldn’t even get into it, so they brought a law suit to enjoin the city from spending the money for this granite column. But the court decided against the veterans, saying, “Anything constructed by the hands of man is a building.”
Therefore, when I found that this policy stated it would pay the widow $1,000 if the husband was killed through the collapse of a building, I felt I had a sure shot. The insurance company again tried to laugh me out of court, but I got the decisions and showed them to the judge. Justice prevailed, and we collected the money for the deserving widow.
SOME WORKMAN’S COMPENSATION CASES.
I used to try lots of workman’s compensation cases: one case lingers in my mind that I won in the lower court. It was appealed to the Supreme Court, and I won it there. The title of the case was “Justice versus the Milling Company.” The facts were that Mr. Justice, working for the flour mill, sustained an injury to one of his eyes and lost about 90% of his vision. The United States Fidelity and Guaranty Company carried the insurance for the employees; and it paid statutory compensation for the 90% of the total loss of an eye. Later on Mr. Justice was working for the same company when he sustained an accident, which caused the loss of the entire vision of that same eye. The same insurance company (United States Fidelity and Guaranty Company) didn’t want to pay him; or in any event, they stipulated that they would pay no more than 10% when this second accident occurred.
I checked the law. The law didn’t say you had to have a good eye, or half a good eye, or a poor eye: it simply said that if you lost an eye, that you got so much compensation. I maintained that the law allowed a man so much for an arm. The statute didn’t say whether it had to be a left arm, right arm, big arm, little arm, weak arm, or a strong arm. Here was a man who did have a little vision in his eye; and even though it wasn’t too good, it was gone forever. So I took in after them and recovered 100% for the loss of the eye on this second injury and the Supreme Court affirmed it. The United States Fidelity and Guaranty Company let out an awful squawk, having to pay this man 190% for the loss of one eye by reason of it having occurred in two installments. Anyhow, as a result of my winning that case, the insurance company changed their policies and the workman’s compensation law was amended to take care of such an event in the future.
Barker Versus the Shell Petroleum Company.
Then I had another workman’s compensation case that was widely quoted for a number of years! It was “Barker versus the Shell Petroleum Company.” Mr. Barker was working for the Shell Petroleum Company, helping to build a road along the railroad track. For about a couple of weeks, he rode what they call a “maney,” or what we would think of as a dirt scraper. This scraper was pulled by a tractor or a bulldozer. The wheels of the “maney” would get up on the railroad ties and just bump, bump, bump, and jar that scraper, causing it to buck and jump all day long. Mr. Barker was around sixty years of age; and after about two weeks on the “maney,” they took him to the hospital and found that this bumping and jerking had inflamed his spine. When he was released from the hospital, he had a stiff spine and was totally disabled. The insurance company refused to pay, saying that an accident has to occur at a certain time and at a certain place, and that I couldn’t show on his behalf, any specific railroad tie that had caused a big bump, jerk, or jar; neither could I point out the hour of the day or even the day of the week when he received the injury. I took the position that the workman’s compensation law was not a matter of technicalities; but was written for the benefit of the working man, and should be liberally construed. I argued that if he had fallen down a flight of stairs and injured his back, he would not be compelled to show the exact step on the stairway that did it; further, that if it had been a flight of stairs half a mile long that he had tumbled down, he might have taken ten or fifteen minutes to roll down, and he couldn’t show the exact moment of injury. The court agreed, and we prevailed for Mr. Barker.
Pool Versus Day.
Another case we had that was widely quoted in legal magazines and law digests for many years, and still is, for that matter, was the case of Pool versus Day.
The circumstances were as follows. A young man in Winfield, Kansas, was taking a young lady by the name of Virginia Pool to a dance at Ponca City, Oklahoma. A short distance north of Ponca City, he failed to make a curve, ran into an embankment, and was killed. Virginia Pool was very badly injured; and one leg was so badly mangled that the doctor said the only reason he didn’t amputate it was because he thought she was going to die and there was no reason to amputate it. However, she made a good recovery even though her leg was quite crooked and mangled.
[Now at the time of this accident, the law of Kansas forbade a guest or passenger to sue the driver. We had what was called the guest statute in Kansas. But at the same time, in Oklahoma, where the accident occurred, there was no guest statute.]
We brought the law suit at Winfield because that’s where we had to bring it to get service. But the insurance company claimed inasmuch as we brought the law suit in Kansas—and all the people involved lived in Kansas—that we should be denied recovery by reason of the guest statute of Kansas. Of course, we argued that the law of Oklahoma should govern because that was where the accident and injury occurred.
When we tried the case in the lower court before a jury, I showed them an exhibit: the injured, crooked, rather horrible looking leg of Virginia Pool. The other side, when they were arguing the case, said that the jury shouldn’t give her anything; and if only the young man who had been driving the car could be there, they wondered what he would say.
Well, it was just about dark in the courtroom, and I softly said, “Gentlemen of the jury, they’ve been wanting to know what the young man who drove the car would say. Let’s just step out into the cemetery, sit down around his grave, and listen intently. I’m wondering if he isn’t trying to tell us something like this. ‘Gentlemen, the evening I took this girl for the fatal ride, she was beautiful, she was happy, she had beautiful, straight, attractive limbs. Where once there was laughter and happiness, now there is only anguish and pain. You see her today with her face scarred, her teeth knocked out, her beautiful legs twisted and deformed. Gentlemen, I am the cause of all of this!’”
Well, about the time I was getting warmed up in this visit with the departed, the other side was objecting, so I ceased. Anyhow, the Supreme Court in those days had a bunch of Scotchmen on the court: they thought a verdict of $10,000 was excessive and they were going to send it back for another trial. They also thought that I had prejudiced the jury with my remarks concerning the departed. So I had to try it again, and it went to the Supreme Court a second time. This time, instead of showing the jury the deformed, twisted leg of this girl, I got her some nice silk stockings and had her sit where all the jury could see that her one beautiful leg hadn’t been scratched. I didn’t give my speech about going out to the cemetery; and the jury, after being transfixed by this beautiful leg, gave the girl about $15,000; and when it went to the Supreme Court the second time, they affirmed the judgment.
The moral of this story: it isn’t always necessary to have as an exhibit, the bad things of your case; sometimes the niceties will do much better.
The Impeachment Trial of Roland Boynton.
One of the greatest trials to take place in the state of Kansas since statehood was the impeachment trial of Roland Boynton, Attorney-General for the state of Kansas. This took place in the spring of 1934.
The impeachment trial of Attorney-General Boynton came as a result of the Finney bond scandals that were exposed in 1933. For many years the most prominent family in Emporia, Kansas, was the Finney family—and the son was Ronald Finney. The elder Finney was the president of three different banks and president of a telephone company, and was regarded as an outstanding man. The Finney’s vast financial and political connections were extensive. The family was related to the William Allen White family. For many years, I suppose if anyone had asked for the name of the most respected man in Emporia, that nine times out of ten, they would have been given the name of Mr. Finney. As I said, the Finneys had three banks, and in those banks were large amounts of state funds on deposit. In order to secure the state against loss of the money put in the Finney banks, the Finneys would place in Topeka with the state treasurer, large amounts of municipal bonds.
During the depression years, Ronald Finney and his father became convinced that we were on the verge of good times and that things would suddenly swing to wild inflation. The Finneys started speculating and buying large amounts of commodities, equities, and land. They even bought a circus and a plant that made dog food. They speculated on the grain market—buying large a great amount of wheat, corn, and other grains on margin—and the first thing they knew, they had used up all of their own money. Then, the next thing they knew, they had used all of the state money that was on deposit in their banks.
Then they hit on a novel scheme to get some more money: print forged municipal bonds, go up to the state treasurer’s office, take out the genuine bonds and replace them with these forged securities. One day the roof caved in and the state of Kansas discovered that all the money it had in the Finney banks was gone; and that all the bonds the Finneys had put in the state treasurer’s office in exchange for the genuine bonds, were forged. The state of Kansas was literally cleaned out by the Finneys. Now, at the time of this trouble, we had a law in the state of Kansas that made it the duty of the governor to personally go to the office of the state treasurer at regular intervals and actually see, count, and check the securities in the treasurer’s office. Alf Landon was then the governor and of course, was charged with this responsibility, but he had neglected it. It also happened that at this time, Alf Landon was getting ready to run for the nomination for President of the United States. When the blow-up came, Attorney-General Roland Boynton was in California visiting his mother, and even though Alf Landon was the party who was derelict, he pointed an accusing finger at Boynton and he, Landon, called out the National Guard and had them stationed all around the State House to guard an empty sack.
When Boynton returned, he found he was on the defensive, and Landon was really his accuser. The legislature thought it should do something, so the House of Representatives voted articles of impeachment. As you may know, an impeachment trial is tried before the State Senate, which sits as a jury. Thus it was that the actual trial of Roland Boynton came before the State Senate for trial in the spring of 1934. W. L. Cunningham of Arkansas City was selected by the Attorney-General as chief counsel. For assistants he selected A. M. Ebright of Wichita, who was later head counsel for the Cities Service Gas Company; Arthur J. Mellott, who later became the U. S. Federal Judge for the District of Kansas; and myself. We were the four lawyers who had to undertake the defense of Attorney-General Boynton.
An impeachment trial is unusual and is a difficult kind of a trial to defend. First of all, the members of the Senate make up their own rules: they determine what kind of evidence will be competent or incompetent and they are not governed by any prior decisions—court decisions or anything of the kind. In other words, they make up their own rules on procedure, evidence, argument, and balloting. For those who might want to study the mechanics of a hard fought impeachment trial, I would refer you to a volume in the State Library entitled, Impeachment Trial of Roland Boynton. It is a volume of over 900 pages and lists in detail just what occurred at that trial. Nevertheless, at the end of a three week bitter trial, we were successful in having Attorney-General Roland Boynton acquitted of all the charges.
Now Roland Boynton was as nice, honest, and kindly a person as you could ever meet. He was a true gentleman and it seemed that his life was dogged with misfortune. He had a beautiful wife and one of his assistants in the office of attorney-general stole the affections of his wife; she divorced Roland and married the young man in his office. In addition, he and his wife had adopted a young baby, and it proved to be abnormal as it matured. Furthermore, Roland Boynton was related to the William Allen White family; and at that time the procedure for a man running for governor was to first be attorney-general, build up your acquaintanceship, publicity, and newspaper support; and Mr. Boynton, of course, had done these chores and was in line to become Governor of Kansas. The impeachment trial destroyed all this. The adverse publicity of the impeachment trial, the loss of his wife, the misfortune of the little child they had adopted, and the loss of his future career broke his health and spirit. He lived only a few years after this impeachment trial. But I shall always regard him as a fine gentleman, who was honest, forthright, a good citizen, a patriot who had served in World War I, and a man who had faithfully served his country and his state.
Boynton was acquitted about noon and in the forenoon, U. S. Senator Clyde M. Reed, J. N. Tincher, former Congressman from Kansas for many years, all of the attorneys for Boynton, and Boynton himself met in my hotel room and two rather interesting things occurred. First of all, Senator Reed told Boynton that he thought it imperative that Boynton appoint a special assistant Attorney-General for the state of Kansas to try and recover some of the loss sustained by the state of Kansas through the work and the fraud of the Finneys; and after the thing was discussed a bit, I was drafted for the job. I mean literally drafted, because I had been away from my office for a number of weeks. I wanted to get home and the last thing I was looking for was more work connected with the Finneys. But nevertheless, I was appointed Special Assistant Attorney-General for the State of Kansas, to try and recover all or part of the loss caused by the Finneys.
The second thing that occurred at that meeting had a bit of humor. Poley Tincher, the former Congressman, was chief counsel of defense attorneys for the state auditor, Bill French, who was also to be tried by the State Senate on an impeachment charge, growing out of the Finney bond scandal. The trial of French was to begin at about 2:30 in the afternoon. Suddenly, Poley Tincher looked at his watch and said, “I’ve got to get over there and defend Bill French; and I don’t have a briefcase, or papers, or anything. I want to look like a lawyer at least!” He turned to me and said, “Arthur, can I borrow your briefcase?” I said, “You certainly can.” I turned it upside down and dumped out a number of the Boynton files. Poley picked it up and said, “I can’t walk in there with an empty briefcase flopping around.” So he picked up the Gideon Bible off my bureau and dropped it in my briefcase. Poley Tincher went over to the State House Senate chamber. He sat there for a week or ten days during the trial of the state auditor, who, I might say, was found not guilty; and thereafter Poley returned my briefcase—and I trust, returned the Gideon Bible to the hotel room.
When the Finney bond scandal first broke, I think the Kansas Legislature voted $50,000 or thereabouts and made it available to Governor Landon to carry on an investigation as to who caused the loss and to see if anything could be retrieved. Well, Governor Landon had a friend by the name of Senator Harris, a state senator from Ottawa, Kansas, and Governor Landon felt that he needed a legal bodyguard, so to speak, and I found out that he had paid Senator Harris thousands upon thousands of dollars out of this fund. As I recall, Senator Harris had kept fifteen or twenty thousand dollars for his services to date. When I was appointed Special Assistant Attorney-General to start law suits, I was approached by Senator Harris, who wanted to know if I had any objections to him assisting me with the prosecution of these cases. I had no objection to getting all the help I could, but it was a somewhat humorous situation. Here was Senator Harris, who had received thousands of dollars for trying to hurt my client, Roland Boynton, now coming to join me.
I realized that the real reason he was joining me was to make sure I didn’t file any law suits that would in any way embarrass Governor Landon because Landon was still getting ready to make his bid for the Republican nomination for President of the United States. So I told Senator Harris that I had no objection to his joining with me and I asked him if he had any of the funds voted by the legislature available that could be applied to my phone calls, traveling expenses, and hotel bills, to say nothing of a fee for my work. He reluctantly told me that all the money that had been voted by the legislature had already been expended. I guess that was true because I never saw any of it. However, during the months that were to follow when I was engaged in the investigation and the trial of these various law suits, I never received one penny at any time from anybody to defray any of my hotel bills, railroad tickets, telegrams, food, phone calls, automobile expenses—much less, any fee.
Now the State Treasurer is required to give a bond for $500,000 each time he is sworn into office, and I took in after the bonding company that had a $500,000 bond in effect at the time the Finney bond scandal broke. About the time I was getting the heels of the bonding company pretty close to the fire, it took bankruptcy, so I gave a little thought to the matter. I decided that the former bonding company ahead of them had a $500,000 bond during the preceding term and was liable on the theory that even though the books in the state treasurer’s office showed no loss, in truth and in fact, there had been. So, regardless of what the books showed, the honest to God facts were that a lot of the money had disappeared; and the bonding company who, of course, had a bond in effect at that time, should be liable. So I took out after them. I also filed suits against banks and other institutions; and in about a year and a half or thereabouts, I started getting some results.
First, I collected a lot of assets and salvage from three different banks which Mr. Finney and his son had operated; and I picked up some other assets which could be applied on the loss. Then I settled down in earnest against the bonding company. At first, they shrugged me off as simply a nuisance. But then they woke up when it appeared that their liability to make up the deficiency between what we had recovered from the Finney banks and elsewhere, came to $500,000, which would have to be taken from the bonding company to make the state whole again.
About this time the second term of Roland Boynton as Attorney-General expired, and a new attorney-general was elected. Clarence Beck, from Emporia took office. He re-appointed me as Special Assistant Attorney-General, so I continued with the prosecution of these cases. The bonding company offered $100,000, which of course I turned down; then a few months later, they offered $150,000. Then at regular intervals they increased the offer: from $200,000 to $250,00; then $300,000; $350,000; and finally got up to around $400,000. There they indicated that they were going to stay put—they would not pay more unless forced to by the court. So I had the law suit against them set down for trial. I then got a telephone call from the lawyers for the bonding company back in New York, asking me if I could arrange a conference between the Attorney-General and myself and the bonding company and its attorneys. I was told that they would charter an airplane and meet with us at an appointed time, which they did.
Now I had been around litigation long enough to know that when a bonding company had been trying to settle a case for around $400,000, and I refused their offer and had the case set for trial; and then got a phone call from them saying they were chartering a plane and bring their company officials to see me, they meant to really get that thing behind them and pay some real money to get the case settled. And, of course, I knew that one thing that was bothering the bonding company was the matter of 6% interest on $500,000—some $30,000 a year. This matter had already dragged along for almost two and a half years; and was getting to be a thorn in their side. I knew it, and they knew it. Well, I forgot to brief Mr. Beck about the facts of life. I did tell him that they were coming to try to settle the matter for $400,000, giving him my advice not to settle for any such figure because I thought that if we would just drag our heels, we could do much better. Well, we all met in the office of the new Attorney-General. Mr. Beck and the bonding company sparred around and around for half an hour; and finally they said they had come prepared to make a final and firm offer that we could take or leave, and that was it, and the amount was to be $400,000. I looked at Mr. Beck and Mr. Beck seemed to understand the situation. He said he was sorry but that wasn’t enough money; but if they cared to increase the offer, he would be glad to consider it. The bonding company boys went off into another room and in due time they came back, said it was an outrage, but they had got in touch with their home office and were authorized to make one more final, firm, and last offer of $425,000; but that was it, and we could either take it or go to trial. Once again, I looked at Mr. Beck, and once again he came up with the right answer, which was that $425,000 wasn’t enough money; but if the company cared to increase the offer, we might be able to get together and work something out. So once again, the bonding company boys retired and in due time they came back. This time they announced that $450,000 was their last offer, and there would be no more attempts to increase it, and the State of Kansas would either have to accept it or be prepared to go to trial and force them to pay. (I was busy figuring on a piece of paper, the amount of interest that the bonding company owed at this time and I forgot to look at Mr. Beck; but I shall never forget hearing Mr. Beck’s reply to the $450,000 offer.) The Attorney-General deliberated for a moment, then he said, “Gentlemen, if you will make that $451,000, you have settled yourselves a law suit.” Well, I about fell out of my chair—and I know the bonding people who came down prepared to pay $500,000—about fell out of their chairs. But Mr. Beck had made his pronouncement, so that is the way we settled the case against the bonding company.
Now there is a happy note on which to end this Finney matter. In spite of all the loss caused to the State of Kansas by the Finneys, at the end of the litigation I conducted, the State of Kansas made a financial profit by reason of the activities of the Finneys. It came about in this way. We adjudged the amount of salvage that we had recovered from the banks would be, say x dollars, but when we got rid of the salvage and sold it and moved it along, we got more money from the Finney banks than we had anticipated, so that money, plus the money we got from the bonding company, in dollars and cents, showed a real profit for the State of Kansas from this tragic event that took the lives of three people and the reputations of many more.
Opposing Lawyer’s Two Words Cost his Client $500,000.
Ella Demoret and her brother had been partners for many years, in various businesses in central and western Kansas. They were rich, they were single, and they were devoted to each other. When they were approaching their golden years, the brother said, in case he died first, he wanted his property to go to some close relatives, including some nephews and nieces. Ella Demoret made this suggestion: that the first one who died should not will away a lot of the property and cause their various business partnerships, associations, and investments and dealings to be broken up. She suggested that she and her brother make a will and leave each other everything; then if the brother died first, his share in all these partnerships would go to Ella and then she would make a will taking care of these people that her brother wanted to be remembered. In other words, she would act like a trustee and in that way, their various business endeavors would not be divided, liquidated, or disrupted as long as either was alive. Both parties agreed to this arrangement. When the brother died, he left everything to Ella Demoret. In the meantime, Ella had married. That caused a little confusion in the arrangements that Ella had made with her brother. The result was that when Ella Demoret died, she had neglected to take care of the gifts to the friends and relatives of her brother, as agreed. These relatives of the deceased brother came to see Poly Tincher, a lawyer at Hutchinson, Kansas, who had been a close friend of Mr. Cunningham for many years. Mr. Tincher asked Mr. Cunningham and me to assist him with the matter so we filed a claim against the Demoret estate for these relatives, who had not received the share that they were entitled to under the agreement between Ella and her brother.
We had quite a trial in the Probate Court in Reno County, Kansas, but we got a judgment which approved our claim for a large share of the Ella Demoret estate; and at this point, the losing party decided to appeal. Now as you already know, if you lose a law suit, you’re going to appeal. In practically all the courts I know of, you must give notice to all adverse parties of your intention to appeal because the fellow who wins the law suit has a right to know whether you are going to pay it or if you’re going to appeal. Well, we must have had about twelve or fifteen clients who, collectively, had won this law suit; and when the other side, the losing side, decided to appeal, they had a choice: they could either give notice to all of these people; give notice to the lawyers of these people; or they could give notice that they intended to appeal by serving it on the Probate Judge of Reno County for the benefit of all adverse parties. Well, for some reason, the lawyers were a little rusty or a little lazy; and instead of getting out notice to these twelve or fifteen adverse parties and notifying these people on the winning side that they intended to appeal, they only serviced their notice on about a half-dozen of them, then they fixed up a notice and gave it to the Probate Judge of Reno County for all adverse parties above named and of course they had named about six of the required twelve or fifteen parties. Now if they had left off the words, “above named,” they would have had a good notice of appeal; but by adding those two words, the notice of appeal was defective and did away with all chance of ever overturning this judgment for half a million dollars in favor of our clients. You will find this case in the following: In re: Estate of Ella Demoret, reported in 169 Kansas, page 171.
Lew Wentz Outwits Bill Murray.
For many years, Lew Wentz was a power in the political field in the state of Oklahoma. He was a successful oil man, a bachelor, a millionaire, and represented the Republican Party as National Committeeman for the State of Oklahoma. Mr. Wentz had various oil interests as well as other business interests outside the State of Oklahoma and a number of his investments were in the State of Kansas. An attorney in Ponca City, Oklahoma, Felix Duvall, represented Lew Wentz practically everywhere he had investments. Any matters that affected Mr. Wentz in Kansas would result in Mr. Duvall calling upon Mr. Cunningham and me to assist him.
When Alfalfa Bill Murray was elected Governor of Oklahoma in the 1930s, he, being one of the nationally known Democrat governors, was hurt to find that Lew Wentz was a member of the Highway Commission of the State of Oklahoma. Alfalfa Bill requested Mr. Wentz to resign; and Mr. Wentz refused to resign. Apparently there was no way to get rid of Mr. Wentz until he had served out the term to which he had been appointed, so Alfalfa Bill decided he would take another route to see if he could dislodge Mr. Wentz.
At that time there was a law in force in Oklahoma that rewarded a person who found that his neighbor or anyone else had not reported and paid all of the taxes which he should. Lots of people made a specialty of going round and nosing into books and records. They were called “tax ferrets.” You didn’t know at what time the tax ferrets would be working on your books and records if you were doing much business. So Alfalfa Bill decided that instead of having two or three tax ferrets start checking into the business of Wentz, that he would assemble twenty-five or thirty of them, and when they moved into Wentz’ office, they would take it over and disrupt everything and by staying there for a month or so, they would become a nuisance and more or less paralyze the business—making Mr. Wentz realize that it would be better to resign from the highway commission than to be so annoyed!
One day Lew Wentz got word that the following day the “tax ferrets” were going to descend upon his place of business and take charge of his books and records. So Wentz got in touch with his lawyer, Felix Duvall, and Mr. Duvall and Mr. Wentz’s personal secretary came to Arkansas City that afternoon. As I recall, the Lew Wentz Oil Company, which was a very successful and fast growing organization, was incorporated under the laws of the State of Oklahoma, but be that as it may, we thought we had better organize a Delaware Corporation. So we telephoned to The Corporation Trust Company at Wilmington, Delaware, kept the line open several hours, and proceeded to organize a new Wentz Oil Company under the laws of Delaware and transferred all of the assets of the existing Wentz Oil Company to this new corporation. We dissolved the old corporation entirely. We rented an office in Arkansas City, and got a sign painter to put “Wentz Oil Company” on the door, and brought up all the books and records from Oklahoma and put them in the new office. Then we elected officers for the newly formed oil company, and I was elected president of the new Wentz Oil Company.
The bank account of the new oil company was in excess of a million dollars. We declared a dividend and I had the pleasure of writing a dividend check to Lew Wentz for around a million dollars. I think at that time he owned 94% or 96% of the company. He had a brother and a niece who had a share or so apiece. In any event, during that afternoon and evening, we completely dissolved the old corporation, took all books, records, and other assets of the company out of Oklahoma and moved them into Kansas. The next morning when Bill Murray’s tax ferrets descended on the offices of Wentz Oil Company at Ponca City, they found only an empty room and a smiling Lew Wentz!
A Matter of Pride.
Bert E. Church has been an active practicing lawyer at Wellington, Kansas, for about fifty years. Every once in awhile he calls on me to help him with some case. About a year ago he called me over one day and he had a most interesting case!
It seems that about fifty years ago, there was a well-to-do farmer living near Wellington, who had a wife who was expecting a child, and was unable to do the washing, ironing, and housework. The farmer hired a little girl of 15 or 16 years of age to come and do the housework during the confinement of his wife. The farmer seduced the little girl, and she became pregnant; and in due time gave birth to an illegitimate child. The farmer’s wife gave birth to a very nice little girl.
Now, the father of the girl who had been seduced was outraged and he had the well-to-do farmer arrested for statutory rape. That case was bitterly tried four or five times in Sumner County, Kansas, without a conviction or an acquittal. In addition, the father of the girl who had been seduced had filed a damage suit for the recovery of damages against the farmer, and that case had been in the courts—tried and untried—for a number of years. The result was that out of the criminal cases against the well-to-do farmer, there had been no conviction; and out of the civil damage suit against him, there had been no recovery.
Bert Church had obtained all of the old court files, and I thumbed through them. I knew almost all of the characters, most of whom had long since died. All the prominent lawyers in the county had been on one side or the other; but they were all gone. The judge and the court personnel, the county attorney were gone. Only a few months before, the well-to-do farmer had passed away, and his wife had preceded him in death. So it was that the farmer had left two natural daughters and one illegitimate daughter. Now a strange thing had occurred between the illegitimate daughter and one of the natural daughters: they had become very good friends. Of course, the two little girls were too young to understand the lawsuits and so all through grade school and at Sunday school, and later high school, they looked like each other, played with each other, had parties together, and were the closest of friends. Of course, after they left high school, the daughter of the well-to-do farmer went on to better schools and had better clothes and better surroundings. The illegitimate girl, who went with her mother to Kansas City, did hard manual labor for a number of years.
When I walked into Bert Church’s office, there sat a rather nice looking, rosy cheeked, elderly lady who had been the girl seduced by the farmer fifty years ago. Beside her was a robust young lady, single, and she was the illegitimate child. In due time Mr. Church and I, on behalf of our client, made a demand for the proper share of the estate for this illegitimate daughter. Much to our surprise, the two legitimate daughters of this wealthy, deceased farmer indicated through their lawyers that they wanted to make a settlement out of court. They were willing to pay thousands of dollars to this illegitimate child in settlement. The only thing they requested was that the amount they paid was never to be revealed, and there should be no publicity and no proceedings of any kind filed that would come to the attention of the public.
All of this was carried out and settled the same. Pride brought about the settlement. The legitimate girls, holding a place in society, being prominent leaders in church and civic groups, really didn’t care anything about their half-sister; but they had pride and they wanted their social position unblemished and for that reason alone, they were willing to make the contribution to their unfortunate half-sister in order to retain their social position and their slightly tarnished pride.
Momentum in a Lawsuit.
In the broadcasting of football games and other athletic contests, we often hear the term “momentum” used, and often overused. But it is true that a team gets what we call momentum and things will start breaking in its favor. The same is true of a lawsuit. A lawsuit is somewhat like a military maneuver: there is a time to hit and a place to hit, and an amount of force to be used. If you can sense those ingredients and properly time them, it will help you immensely in gaining a victory in litigation.
About five years ago, I was engaged in a lawsuit where there were about thirty different lawyers. One particular lawyer and I bucked heads pretty vigorously for several months; but each of us had a great deal of respect for the other’s ability, and we separated like two professional prize-fighters that have gone ten rounds at a furious pace, each realizing that the other is a pretty good boy. I didn’t know whether or not I would ever meet this lawyer in the courtroom again, but one day I got a telephone call from him. He said that he had a case in Cowley County, Kansas, that he had run into some trouble, and would I help him with it. I told him I would. He came the next day with some other lawyers and gave me the facts.
It seems that one of the wealthy families in Kansas is the Shawver family. They have been prominent in politics and oil, and they are very well known. They are good citizens. The younger Mr. Shawver, commonly called Ernie Shawver II, had been married for about 23 or 24 years. He was a fine looking gentleman and had a very nice looking wife. They had adopted two children who had developed into a fine loving boy and girl. The Shawvers had a fine home and everything to live for; but for some reason, Ernie II had become infatuated with a night club singer, I was informed, and had walked out of his home and away from his wife and children about a year before and had not returned.
Then Ernie II filed for divorce in Cowley County, and the lawyers for Mrs. Shawver had constantly been backing up and retreating, and cutting down their demands. In other words, they had lost the momentum of the case, if they had ever had it. I listened for half a day to their explanation of the situation and examined the numerous pleadings that had been filed. I said, “Gentlemen, it is my belief that the only trouble with this case is that you have lost the momentum. What you need to do is to spin right around and take charge; and I think, if you do, you will be able to work out a pretty good settlement.” It appeared that up to the time I talked to them, the most that had ever been offered to Mrs. Shawver was around $300,000; inasmuch as Ernie II was worth around two or three million dollars, the offer was inadequate. Well, to make a long story short, we filed some very serious motions against Mr. Shawver’s divorce case: one to dismiss the entire case; another for substantial attorney’s fees; another for substantial alimony; another for various information pertaining to his income tax records, and so forth. In short, we took charge! In less than thirty days, we had worked out a complete property settlement whereby Mrs. Shawver received over a million dollars worth of property; and Ernie II was most willing to allow the attorneys for Mrs. Shawver the sum of $50,000, and the matter was wound up speedily and to everyone’s satisfaction.
It was simply a case where the momentum had swung back again from one side to the other; and if you can pick up the momentum and go forward with it, you can usually get a pretty good settlement.
[In regard to this word, “momentum,” my old law partner, W. L. Cunningham, had another name for it some years ago. I wasn’t with him when this happened; but I have heard it from reliable sources numerous times. I think the story is worth repeating.]
It seems there were four or five old company lawyers who had been bruised up badly in some litigation. They called in Mr. Cunningham to assist them. They met in Wichita and one of the lawyers said the court was against them. Another said that public opinion had turned against them. Another said that they had no chance of recovery. Comments of like nature continued around the table. All of them were talking of “dooms day” and really had their “daubers” down. Finally, one of them turned to Mr. Cunningham and said, “Now Mr. Cunningham, you’ve heard the viewpoints of the other lawyers. What’s your opinion about this case?” Mr. Cunningham, his face flushed, brought down his big fist on the table and said, “Gentlemen, what this case needs is some arousement!” Thus it was that the term “arousement” was long the forerunner of the much abused term “momentum” that is used so frequently today.
The Lament of Mr. Champlin.
For many years one of the main oil-producing and oil-refining companies in the Midwest was the Champlin Refining Company at Enid, Oklahoma. During the depression years, we represented some people by the name of Latta, who were land owners in the northern part of Sumner County, Kansas. We brought suit against the Champlin Refining Company for failure to properly develop and look after the oil lease. It resulted in a judgment against the Champlin Company of $10,000. That’s not a large amount of money now, but in those days it was a fair sized verdict. After we got the judgment, for some reason, the Champlin Company did not pay it. I hesitated to have the sheriff go and levy execution on their equipment, so I decided to make a trip down to Enid, Oklahoma, and see the Champlin people and find out why the judgment had not been paid. Arriving at the refinery, I asked to see Mr. Champlin. In a short time I was ushered into his office. He was a nice appearing gentleman, very friendly, and we visited for awhile. He then asked me the purpose of my visit. I told him that I was there to get a check from his company for $10,000 in payment of the judgment in the Love-Latta case. Immediately he became quite crestfallen and turning to me, he said, “My friend, this has been the worst day of my entire life. We’ve had a lawsuit against the State of Oklahoma for several years, questioning the validity of the proration law in the state of Oklahoma, which prevents us from producing the full amount of oil from our various wells that they are capable of producing, and just this morning we received word that the law had been upheld. This will prevent us from producing all the oil from our wells that we have been producing and cut down our production from fifty, maybe seventy-five percent. This afternoon I received word from the Federal Court in the State of Delaware that they had found that the patent we were using for refining our oil, known as the cracking process, is in violation of the patent rights of a rival company and they fined us $150,000. Now, this evening, just before I get ready to go home, you come in and want $10,000 for the Love-Latta people. Mary, write this man a check.”
We Try To Sell An Oil Refinery.
For many years one of the main industries in Arkansas City was the Milliken Refinery, located in the southwest corner of the city. Over the years, however, the equipment became old and worn out and rather antiquated; and along in the early 1920s we received a request from a bank in St. Louis, Missouri, which as I recall had a name like the St. Louis Union and Trust Company. They held a mortgage on the refinery (a million and some thousands of dollars) and wanted Mr. Cunningham and me to foreclose the mortgage. Ordinarily a mortgage is not too difficult to foreclose—whether it is a large one or a small one. But in this case there were a great many labor liens, unpaid bills, second mortgages and judgments. There were various leases, royalty agreements, patent rights, and other features to total up. It required some rather extensive and difficult litigation to go through before we finally got a judgment in excess of one million dollars and an order from the court to foreclose the mortgage. Thereafter, we foreclosed the mortgage and the St. Louis bank bid the property in at the sheriff’s sale. Now a few words to show you how the value of property will fluctuate, particularly in times of depression.
After we foreclosed the mortgage, some parties came by and made an offer of $250,000 for the land and property of the refinery. We transmitted the offer to our St. Louis clients. They turned it down and said they didn’t think they would be interested in any offer less than half a million dollars. In the meantime we hired watchmen to guard the premises and, of course, we had to continue to pay taxes on the property for our client; and about a year later, they got in touch with us and said they would like to know if the offer of $250,000 was still in effect. We contacted the people who had made the offer and they said, “No, that one hundred thousand dollars was as much as they would now pay for the land and equipment.” We transmitted this offer to our clients and they turned it down as wholly unacceptable. Some months went by and we received word from St. Louis inquiring if the offer of $100,000 was still in effect. We contacted the people that had, some time before, made the offer. They said, “No, they were no longer interested.” Then some months later we learned that our clients in St. Louis had sold the land and the property located on the same for $50,000 to the Brown-Strauss Company, which dealt in junking refineries and installations of that kind.
There’s one other sidelight on that case that I should mention. Mr. Cunningham and I went together in the years of real depression; and he always had a desire to take in $10,000 in fees in some calendar month. When we finished foreclosing this mortgage for our clients in St. Louis, they asked that we send them our bill. Mr. Cunningham and I talked it over; and I suggested that he send them a statement for $10,000 for our services in connection with the litigation and foreclosure of this mortgage. Mr. Cunningham thought it was a little high; nevertheless, he made out the statement for $10,000 and sent it to St. Louis. In a few days he had a phone call from St. Louis, suggesting that they thought the bill a little high and requesting that Mr. Cunningham come to St. Louis and they would adjust the matter. So Mr. Cunningham went to St. Louis and they indicated that they thought $5,000 was a fair fee; and Mr. Cunningham, still trying to back up my judgment, stated that he thought $10,000 was a fair fee. They settled the matter for $7,500; and when Mr. Cunningham returned, he felt pretty good about the matter. That was our first month when, with that and other fees, we had taken in more than $10,000 in a calendar month.
The Principle Involved.
A great many people say that they are willing to pay a lawyer to fight a case, simply for the principle involved and not the money, but I’ve found them to be few and far between.
I remember one case, however, right after I started to practice law that has always stayed in my mind. A man walked in by the name of Kelly, who lived at Geuda Springs, Kansas, which is eight or ten miles from Arkansas City. He said that his wife had been in ill health and that he had made an arrangement with a taxi driver in Geuda Springs to haul Mrs. Kelly back and forth to the doctor—and that the taxi driver was to do it for $10 a month. He said that he had paid the taxi driver $10. The driver had only hauled his wife for two or three weeks when he claimed that it was to be so much a trip and that the $10 had been used up. He said to add insult to injury, the taxi driver had sued him for $2.50, which he claimed was due and owing for these trips that were unpaid for. The taxi driver’s name was Moldenhauer, and he had a lawyer by the name of Willard J. King, a very nice gentleman who practiced law at Geuda Springs. He had filed a suit in Justice of the Peace Court in Geuda Springs for the $2.50. I told Mr. Kelly that I would not go over and try the lawsuit for less than $25. He said he understood that perfectly well, paid me the $25, and hired me on the spot. I figured Mr. King was probably a friend of the Justice of the Peace in his own town, and that he probably gave him more or less business. Since I was a stranger, I thought it best to demand a jury, and the case was duly assigned for trial.
It seems that both Mr. Kelly and Mr. Moldenhauer were well known in the small town. Each had his own circle of friends. On the day for which the trial was set, all businesses in the town (including the bank and postoffice) were closed. We had to move the trial from the office of the Justice of the Peace and finally found a big garage building where the crowd could get in. We went to work on the trial, selected the jury, and we tried the case (as they used to say) from “Hell to Breakfast.” After the jury had left the courtroom, or rather, the garage, Mr. King came over to me and congratulated me on my defense. I was considerably younger than he. He made a remark that rose to haunt him later. He said, “Walker, I don’t know about your client, but my client just lied like Hell, all afternoon.” Then he laughed, lit his cigar, and went over to the other side of the room and sat down to rest.
Well, the jury was out for two or three hours. They finally reported that they were hopelessly deadlocked. They were excused from further deliberation of the case. Neither Mr. Kelly nor Mr. Moldenhauer were satisfied with a hung jury, so Mr. Kelly paid me another $25 and I decided to use a little ingenuity and I took a change of venue from the Justice of the Peace court at Geuda Springs to a Justice of the Peace some fifteen or twenty miles west, out in the country. Thereafter, the case came on for trial and all the neighbors as well as a number of people from Geuda Springs were there. This time I used a little different strategy. This time when Moldenhauer had testified, I, of course, started putting on the defense, and after I put on my own client and a few witnesses, I asked that Mr. Willard J. King, the lawyer for Moldenhauer, be sworn. He was sworn. I put him on the stand and then asked him if it wasn’t a fact that, at the conclusion of the trial in Geuda Springs, he had stated that his client had lied like Hell? Mr. King, of course, was on the spot. His client was sitting there! He thought awhile, then testified that he had not made any such statement. I suppose I should have been bound by his statement, according to the technical rules of law; if, in the first place, it was ever admissible for me to ask such a question. Anyhow, Mr. King denied it; but I had witnesses there who had overheard him make the statement in Geuda Springs. I put them on the stand and asked them if they had heard Mr. King make such a statement; and they said that they had. This seemed to be the turning point in the case, and we won the famous case of Moldenhauer versus Kelly.
Law Practice is Dangerous.
People often ask me if I have ever been attacked in the courtroom or on the street by reason of something that came out of litigation. Actually, I can think of only one man who came down off the witness stand and attacked me in the courtroom. Another time, a gentleman whom I had forced to pay some child support got drunk, bought a pistol, and swore he was coming out to kill me; but some friends changed his mind.
I did have one incident at Pratt, Kansas, where I was really in fear of my life. It came about this way! Poly Tincher had a client, a farmer, around Pratt, and this client had a gravel bar on his land. This farmer made a deal with a contractor to excavate the gravel, and the farmer was to get so much a ton. Well, the contractor excavated and sold quite a bit of gravel—and never paid the farmer anything.
Poly Tincher filed a lawsuit for several hundred dollars against the contractor, alleging that it was due and owing for the gravel sold from the farmer’s land. At the same time, Poly got an injunction against the contractor, preventing him from coming on the farmer’s land and getting any more gravel.
About that time, there came a tremendous rain, and the rivers rose and washed the ground pretty clean where the gravel had been on it. The contractor claimed that just before the rain, he had a large number of tons of gravel stacked there and when Poly got this injunction, preventing him from coming on the land, that he couldn’t move the gravel and the rain had washed away thousands of dollars worth of gravel that belonged to him. He filed a counterclaim against Poly’s client for a good many thousand dollars.
At this time Poly Tincher decided that he wanted Mr. Cunningham and me to come over and help him with the case, which he had started. Finally the matter came on before a jury for trial at Pratt, Kansas. Our client told us that he thought the contractor had shipped and moved all the gravel before the flood; but at the trial, the contractor denied that he had moved any of the gravel before the flood. I cross-examined the contractor, who claimed he had neither hauled any of the gravel away by truck or railway, before the flood. About that time the noon recess began.
Instead of eating lunch, I went down to the railway depot and got hold of the freight agent. We went back and check the records for the several months that this contractor had been out on this farmer’s land. We found that the contractor had shipped carload after carload of this gravel out, just immediately before the flood. I got the records and brought them back with me to the court. When court resumed right after lunch, I got the contractor on the stand and asked him if it wasn’t a fact that he had stated that he had never shipped any gravel out before the flood. Then I produced the records that had his signature, showing that he had shipped a great deal of gravel—and he became very angry. The jury decided he was a liar and brought in a verdict for our client for the amount of his claim, and of course denied the big damage suit of the contractor.
Mr. Cunningham and I went back to the hotel at Pratt. It was a bitter cold day. The streets were icy. We checked out of our rooms, paid our bill, and our client said that he would come by the hotel, pick us up, and drive us back to Hutchinson or Wichita. I was sitting in the lobby all bundled up in an overcoat with my hands in my pockets, my chair tilted back against the wall, when the elevator door opened, and out burst this contractor. He was mad and had been drinking and he was looking for a fight. He looked around the lobby for our client; and not seeing him, he spied me. He took off his coat and started toward me. On his hand he wore a heavy rough-cut ring that would serve as a brass knuckle if it came in contact with me. As he started toward me, I knew that his first swing would probably tear half my head off. I got my back braced against the wall and decided I would kick him with both feet as hard as I could; then the fight would go on from there. Just before he reached me, our client started coming through the door of the hotel. Evidently this contractor decided he could get me later, so he whirled around and jerked the door open and hit our client, knocking him unconscious. Then he stomped on him and began beating him some more. I threw off my overcoat and ran out on the sidewalk. The contractor started running. When he reached the alley, he proceeded onward until he reached a waiting car driven by his son. They sped away. Our client was badly injured. We got out a warrant for assault against the contractor. He had fled the county; but in a few weeks, the sheriff was able to locate him and they brought him back. He entered a plea of guilty, had to pay a fine—and I think, jailed for assault.
The memory haunts me: the contractor approaching me with his coat off, that big arm swinging that hand with the huge metal ring, and my fearful thought: “Here goes my face!”
A Bogus Bill.
Burden, Kansas, is a nice country town about 30 or 35 miles northeast of Arkansas City. Over the years I have had a number of good clients around Burden. One day, a good many years ago, the town banker and one of the ministers, and three or four of the best citizens in Burden came into my office with an oil driller. I was told that the oil driller had been indicted at Oklahoma City, being charged with having passed a counterfeit $5 bill. The good people from Burden said that this oil driller had lived and worked in their town for several years, was a good citizen, and they wanted to go down and make bond for this man and go see the U. S. District Attorney and convince him that there has been some mistake. Well, this committee of good folks went with this oil driller down to Oklahoma City and signed his bond, and I think the minister and the banker did go see the U. S. District Attorney and visited with him. We didn’t hear any more about this case for two or three years, and I thought that, undoubtedly, the Federal Government had decided to drop it and not go ahead with the prosecution. Then one day I received word that the case had been set for trial in Oklahoma City before one of the meanest, toughest U. S. Judges that the State of Oklahoma, or for that matter any other state, ever had. I got hold of the oil driller and he hadn’t paid me anything; but said that when the case was over, he would have some money coming from his work and he would pay me then. I got hold of the banker, and I think the minister and two or three other prominent people, and we went to Oklahoma City to try the case.
I want to say here and now: the treasury department really knows how to prepare a case against a person charged with counterfeit money. They had brought back from California a lady who had run a rooming house down in a little Oklahoma oil field town—and at great expense—and kept her there in Oklahoma City. She testified that my client had come into the rooming house one afternoon about 2 or 3 o’clock and rented a room, giving her a $5 bill; that he had never come back or used the room; that she had given him several dollars in change. Then when she took this bill, which was the only $5 bill that she had, to the bank, she was immediately informed that it was a counterfeit bill. The government had also brought men from Washington, D.C., and they had obtained samples of my client’s handwriting, which they had blown up until his name was three or four feet tall; then they had taken the hotel register and blown up the signature of equal height; and their handwriting experts swore there were dips, and zigs, and dots, and slants, and so forth. They gave it as their opinion that the hotel register had been signed by my client.
In any event, when the U. S. Government rested its case, I knew that we were in deep trouble; but I went ahead and put my client on and we had one fortunate break. He was able to show that he had worked steady without interruption for several months prior to the passing of this bogus bill; that he had made excellent wages; and in fact, on the very forenoon of the day this alleged bogus bill was passed, he had drawn a hundred and some dollars wages from his employer; and there was no reason for him to be engaged in counterfeit activities; neither would he have had time to do so. Furthermore, they never found any other counterfeit money transactions in any way, shape, or form connected with my client. My client denied that he had gone to the rooming house; and he denied that it was his signature on the register.
Unfortunately, I didn’t have any expert handwriting witnesses, so I decided to create one, then and there. I asked the court for a short recess and I took the banker from Burden out and asked him how long he had been in the banking business and how many thousands of checks he had inspected for the purpose of seeing if they were genuine. It ran into the thousands! I asked him if it didn’t mean a great deal to the safety of the bank to know that the checks were valid and he agreed with that, and in about ten minutes I thought I had a pretty good expert. I put this banker on the stand and he made a jim dandy. He convinced the jury that he knew the oil driller’s signature, that he had seen it hundreds of times on note, letters, checks, and bills of sale, and I don’t know what all. He further got in the fact that a banker must be a better judge of signatures than some expert, because a banker’s financial safety depended upon his knowledge of genuine signatures, and it was through his being a ready-made expert that we turned the jury in our favor. In addition, we had four or five character witnesses who had come down from this little town of Burden, Kansas. They stated that they had known this man for years and his reputation for being a good law-abiding citizen was excellent; and the jury acquitted him.
Well, going on the elevator from the courtroom to the ground floor was myself, my client, and the U. S. District Attorney. The District Attorney was mad at losing the case and he started giving my client “hell,” saying he would catch him sooner or later. They nearly got into a fight, and I had to separate them. We went on down to the hotel and checked out. The oil driller said he was very happy I had done him a good job and that he would pay me in a few days. Do you know that rascal never would pay me? I used to send him statements from time to time and I never got one penny for my expenses and work in getting him free!
I seriously doubt that there was one person who created more litigation than Jackson Barnett. At one time during the 1920s, he had litigation pending in the county courts of Oklahoma, the District Courts of Oklahoma, the Federal Courts of Oklahoma, the Federal Courts of California, the Federal Courts of New York, the Federal Courts in the District of Columbia, the United States Supreme Court, matters pending before the Bureau of Indian Affairs of the Department of the Interior, and possibly others that I was not familiar with. I shall not attempt to give a complete review of my experiences with Jackson Barnett at this time because I have already written my recollection of it and it would take a small book in itself.
I will give you some of the highlights of this interesting person and the most litigated affair.
When the Osage Indians were given a reservation in northern Oklahoma, the government retained the mineral rights for the benefit of all the Osages in common. That is, if they hit oil on any of the Osage Indians’ land, all members of the tribe who had a headright, shared equally.
Unlike this, the Creek Indians, who were given a reservation in the southern part of Oklahoma, did not share the mineral rights. When they got a farm from the government, they got all the mineral rights in and under it.
As it happened, Jackson Barnett was given a farm upon which tremendous oil wells were found and in a short time he had over a million dollars in his account with the Indian Department. Now the county court in Okmulgee, Oklahoma, had appointed a guardian for Jackson Barnett; and he kept Jackson living about five or six miles from town in a little old hovel. If Jackson would walk to town, he could collect one dollar each time he walked to town and demanded his money. But if Jackson did not come to town for two or three days, the money did not accumulate for his benefit—he still only got a dollar a trip.
Well, for an Indian who had over one million dollars to his account with the Department of Indian Affairs, this was a rather meager living. From time to time the newspapers throughout the country would run pictures of Jackson Barnett and describe his vast wealth, and this would make good reading in the Sunday editions.
As a result of this publicity, a determined lady went down to Jackson’s hovel and visited with him. They drove back in her car to Coffeyville, Kansas, and they were married there. A few hours later they were arrested in Coffeyville by the guardian of Jackson Barnett, who had come up from Oklahoma, so they contacted a young lawyer in Coffeyville by the name of Harold McGugin to have him come and assist them. The stage was now set for the commencement of the litigation that would occupy the attention of many courts for the next ten years.
Of course, the county court in Oklahoma and the guardian there didn’t want to lose control of Jackson Barnett. The guardian and his lawyers had a little gold mine and they did not want to lose it. In addition, there was a running fight between the Oklahoma County Court and the Bureau of Indian Affairs as to who should have charge of investing Jackson Barnett’s money and the distribution of it; and also the custody of it. In addition, unless they set aside the marriage of Jackson Barnett to his new wife, Anna Laurie Barnett, of course, on the death of Jackson Barnett, she would inherit a large part, if not all, of his wealth. There were lawyers in Oklahoma who had contracts with a large number of Indians who claimed to be related to Jackson Barnett; and if these alleged relatives of Barnett received any money, then this group of attorneys would receive half of whatever money their clients were awarded for being relatives of Jackson Barnett. In addition, there were hospitals and schools and preachers and schools who felt they might even have a chance to get part of his fortune; but with him married, his new wife might become his guardian, or perhaps get rid of all the guardians, and their hopes for getting part of the fortune would evaporate.
As I now recall, McGugin got the charges against the Barnetts in Kansas dismissed or acquitted them, and Anna Barnett went back to Oklahoma and moved into the little hovel to live with her husband, Jackson. Mrs. Barnett was not one to give up easily; and she demanded of the county court and the Bureau of Indian Affairs that Jackson have more money to live on, and a car to get back and forth to town. So the county court and the Bureau of Indian Affairs bought an automobile for Jackson. They also had a Secret Service man or detective of some kind sent along as chauffeur for the car. The idea was that perhaps Anna Barnett was an unfit woman and maybe they could get some evidence and set aside the marriage of Anna and Jackson Barnett.
Now let me say this, there is no doubt in my mind that Anna was first attracted to Jackson Barnett by the publicity concerning his fortune; but this I can tell you for sure, that after she married Jackson Barnett and lived with him for a short time, she did fall in love with him and she stayed in love with him until he died. She fought everyone: courts, judges, guardians, detectives, U. S. Marshals, or anyone else that tried in any way, shape, or form to harm her husband. It was the best thing that ever happened to Jackson to get a protector who was also a tiger!
Despite the efforts of Anna to get a better allowance for living conditions, the local courts refused to grant her request, so she came back to Harold McGugin and asked him if he couldn’t take some sort of action and get them some decent allotment of money to live on. So Harold McGugin, Anna, and Jackson Barnett went to Washington, D.C., and there they got in contact with the Bureau of Indian Affairs and Department of the Interior to work out some solution of this Barnett trouble. After some months of negotiation, a settlement was made of the Jackson Barnett fund, then on deposit with the Bureau of Indian Affairs, about as follows: there was an Indian school in Oklahoma that gave training and education to various people—but mostly to Creek Indians—known as Bacone University. So $550,000 of Jackson’s money was placed in a trust fund in the Riggs National Bank of Washington, D.C., and the income of that trust fund was to go to Jackson Barnett; the principal of $550,000 was to go to Bacone University. A second trust fund of about $300,000, as I remember, was set up in the Riggs National Bank of Washington, D.C., and Jackson Barnett was to get the income from that trust fund for his life; and upon his death, this trust fund was to go to his wife, Anna, providing she purchased a suitable home for Jackson Barnett and herself in California.
Mrs. Barnett was faithful to her trust. She went out to California and bought or built a beautiful home on Wilshire Boulevard; and she and Jackson lived there for many years. Also, she purchased what was known as the Coldwater Canyon property, a tract of ground where Jackson could keep some ponies and riding horses. I understand that this investment (which Mrs. Barnett made for Jackson for around $100,000) has become quite valuable and is worth several million dollars.
Finally the government decided that a reasonable attorney’s fee for the services of Harold McGugin was approximately 10% of the fund: $115,000. Now, McGugin at that time had a law partner whose name was Keith, who lived at Coffeyville, Kansas, and who had not been active in the Barnett matters; and Keith and McGugin divided the $115,000 with about $65,000 going to McGugin, as I recall, and $35,000 to Keith. I think they also paid a Washington lawyer who had assisted them some ten or fifteen thousand dollars.
Many people thought that this was the end of the troubles of Jackson Barnett; but they were wrong, this was only the beginning.
It was about this time that I first met Harold McGugin. I think it was probably about 1925 and the Kansas Bar Association was having its convention in either Coffeyville or Independence. We were having a noonday banquet of several hundred lawyers at one of the hotels when in walked Harold McGugin with some other lawyers. Some of the Coffeyville boys had a song they started to sing as follows: “How do you do, Mr. McGugin, how do you do? How do you do, Mr. McGugin, how do you do? Does your client, Jackson Barnett, have any money yet? How do you do, Mr. McGugin, how do you do?” Well, McGugin enjoyed the little song they sang to him and went and sat down with some other gentlemen. I inquired who he was, and for the first time I heard about his Jackson Barnett case and what a large fee he was reputed to have received. In 1926 both of us ran for the Legislature from our respective counties, and both of us were elected.
I really became well acquainted with Harold McGugin during the 1927 session of the Legislature. For years it was unlawful to sell cigarettes in the state of Kansas, and Bill Number 1 introduced in the 1927 Legislature was a bill by Harold McGugin to provide for the sale of cigarettes with a small tax thereon which would go to the relief of the taxpayers of the state of Kansas. It was a hard fight and we finally won and legalized the sale of cigarettes by less than three votes, as I recall. Furthermore, McGugin wanted a division of the district court at Coffeyville, Kansas, as well as one at the county seat of Montgomery County, which was Independence, and I supported him on that bill. I wanted to create a city court in Arkansas City and do away with the Justice of the Peace; and McGugin supported me on that bill. I also wanted to make the sale of dope and narcotics a felony in the state of Kansas, the same as it was in Oklahoma, and he supported me on that. Both of us worked to create a highway system which took the cost of building a highway off the adjacent landowners and placed it on the people at large through a gasoline tax.
Harold McGugin had a lovely wife, who was a talented, refined person whom everyone respected and loved. Born in Arkansas, her name was originally “Nell Bird.” After her marriage, she was known as Nell Bird McGugin. She had been on the Chautauqua circuit and had met Harold in Coffeyville; they fell in love, were married, and very devoted to each other all during their lives.
From 1927 on, until the time of his death, Harold McGugin and I were good friends. He helped me get into the Air Force; and a year later, I helped him get into the Air Force. He went to Europe with Patton’s army, then cancer developed, and he was brought back to the hospital in Topeka, where I dropped by and saw him just before I went overseas.
When I returned from overseas, Harold was in a hospital at Hot Springs, Arkansas, and I started to see him. The telephone rang as I was leaving the house. It was a message that my aunt had passed away, so we went to her funeral in Kansas City. A few weeks later I made another effort to go to Hot Springs to see Harold; and again, someone had died, and I received word just as I was leaving—I had to postpone my trip to see Harold a second time. My third try was probably a couple of months after I returned from overseas, and Maybin and I went down to Hot Springs. We arrived there one evening and on the following morning I went over to see Harold. We had a nice visit, and he died that afternoon. I really believe that he had maintained his hold on life long enough to have a final visit with me.
Now, back to the Barnett litigation.
After Selby had received a lifetime job of suing everyone connected with the Barnett matter, he started a number of lawsuits. One of them was to set aside the $550,000 trust fund that would go to Bacone University at the death of Barnett. Another one was to set aside the $300,000 that would go to Mrs. Barnett upon the death of her husband. Another one was to set aside the marriage of Jackson Barnett and his wife. Another one was against Harold McGugin and his wife, and Keith, his law partner. There might have been others as well to recover the amount of attorney’s fees that had been paid.
In the early days of all this litigation, I took no part. Harold McGugin was a lawyer; and in the lawsuit against himself, he filed a motion to have the case against him dismissed; and Judge Pollock of the U. S. District Court of Kansas sustained that motion, and for a number of months the case lay dormant there at Wichita. About this time Harold decided to run for Congress and he realized he couldn’t be in Washington serving as a congressman and going around fighting in his own defense. This man, Selby, was industrious, if nothing else. He was tall, angular, and looked like Abraham Lincoln—and he knew it. As some witness said about a similar situation, Selby would never be satisfied until he was assassinated! So about the time Harold wanted to run for Congress, Selby served notice on him to take depositions at perhaps fifteen or twenty different places. McGugin came to see Mr. Cunningham and me and asked us if we would represent him and his wife in the litigation that was pending against him, and we said we would.
By the time we got into the Barnett matters on behalf of Harold McGugin, we found that the damage had already been done against everyone connected with the Barnett case by reason of a decision of Judge Knox, in New York City. Now the first of these cases to be tried was the one to set aside the $550,000 trust fund to Bacone University. It was filed before Judge Knox by Tumulty’s law firm. Tumulty had been the politician who got Judge Knox appointed Federal Judge. He was a powerful politician and it would be no surprise to learn that his law firm was very successful before Judge Knox. Judge Knox set aside the trust fund to Bacone University and, for good measure, out of said trust fund, gave either $200,000 or $250,000 as attorney fees to Tumulty’s law firm. Now the decision of Judge Knox was just contrary to what the U.S. Supreme Court had decided for years and years. That is to say, the law was that whenever one of the departments of government, such as the Department of the Interior, had a matter to decide within its jurisdiction and made a decision, that no one else could question it. However, Judge Knox paid no attention to this settled principle of law, and as I say, he set aside this trust to Bacone University. Now the lawyers for Bacone University decided to appeal, and you must bear in mind that there were really two parties affected by this decision of Judge Knox. First, it was decided that Bacone University would never get the money; and second, that the bank which held the funds as a trustee, must turn them back to the government. Now the bank that was acting as trustee didn’t care about appealing: it was just a stakeholder. But of course, Bacone University wanted to appeal.
At that time the procedure in the Federal Courts permitted the appeal of one defendant, whether the others wanted to appeal or not; but in order to do so, you must ask the Federal Court to make an order, commonly called an order of Severance. All that would have been required by the attorneys wanting to appeal, would be to have an order setting forth that the judge ordered a Severance between Bacone University, a defendant, and the bank that was a stakeholder, and in that manner, Bacone University would have had a clean cut appeal. But, for some reason, the lawyers did not know the law—or overlooked it—and Bacone University, upon reaching the higher courts, was denied any relief simply because they had failed to obtain a writ of Severance.
Now when this decision of Judge Knox became the law of the land, Selby then turned loose on these other cases. In the case against McGugin, he filed an amended complaint and alleged that McGugin had fraudulently done this and he had fraudulently done that. We had a conference with McGugin; and it was apparent that, as a result of the Knox decision, we could not successfully contend that the government be denied recovery and that all that could be litigated was whether or not McGugin had been guilty of fraud.
Now it’s one thing to owe a bank money that you have borrowed and be sued; and still another to be sued for the same amount of money with the allegation that you obtained the money fraudulently through misrepresentation and so forth. Now McGugin had a brilliant political career ahead of him and it was important no judgment ever be granted adjudging him to be guilt of fraud; and so, for the next eight years, we fought his case in many courts, many times and places, and were eventually successful in having it adjudicated that Harold McGugin had not been guilty of fraud in any shape, manner, or form.
Inasmuch as Harold McGugin was becoming a politically prominent figure, there was not only the U.S. Government prosecuting this suit against him, but McGugin had a lot of political enemies in Kansas that were adding fuel to the fire. Judge Pollock, before whom the case had been filed, had died; and a new Federal Judge had succeeded him, who was affiliated with the Landon political forces in Kansas. Of course, Landon had no love for McGugin, and to show you some of the little tricks that were used, some of the newspapers with which Landon had a connection came out one Sunday morning with an announcement that the Federal Judge had found that Harold McGugin was guilty of fraud; then they quoted the judge’s decision and, of course, in the fine print, “The judge said that McGugin was not guilty of any fraud,” and the newspapers explained that for some reason, they had made an erroneous headline. But there it was in big “stud horse” type in the paper: that McGugin was guilty of fraud, whereas, the actual decision of the judge was just to the contrary!
It may seem that eight years of hard work, traveling all over the United States, was a high price to pay to simply see the two words, “no fraud,” written in a judicial decision, but McGugin and ourselves thought that the time was well spent.
I remember many humorous things occurred during the trial of the Barnett-McGugin matter, and I will just mention one or two.
Now this man Selby had a job for the rest of his life. He could just drag out the prosecution of those matters and he took depositions from Hell to breakfast. I remember one time he took me down into Oklahoma. We would go down to those little corrugated iron shacks. He would bring in two or three Indians, and we would sit there in that extreme heat, and he would lean back and look like he was asleep. He would droll along and would take the direct examination of a witness lasting several hours; then I would start to cross-examine. Every question I would ask, he would object to. Now he wouldn’t just say I object because it was incompetent or immaterial, or any other brief objection that is usually made. He had a motion that would take at least twenty minutes for him to make. He would lean back and shift himself into gear and would droll on for twenty minutes—and I would step out and smoke a cigar. Then I would come in and get the witness to answer; then Selby would offer a twenty minute motion to strike it. Finally I said, “Mr. Selby, why don’t we do this? Why don’t we agree that the court reporter can type this twenty-minute objection, or this twenty-minute motion of yours into the record when he types it up, and we won’t sit here in the hot sun with you drolling on and taking up the time of everybody?” Selby refused to do it so we went around the country taking depositions in that manner.
One of the interesting things occurred when the government took the deposition of Jackson Barnett himself, out in Los Angeles, California. Jackson Barnett was really a handsome gentleman. He was bronzed and had a clipped moustache and an erect bearing that resembled a British army officer. One forenoon the government was taking the deposition of Jackson; and all the newspapers and reporters were there that covered the story. The government had at least three of the outstanding alienists of the country and psychiatric specialists of the U.S. sitting there. I noticed that from time to time these alienists would write a note and pass it up to the government attorney and then he would propound the questions to Barnett. I remember three questions in particular that they asked Jackson Barnett and his answers.
“After you came out to Los Angeles with your wife, did you build your home on Wilshire Boulevard?” Barnett answered, “No.”
Then they asked him, “When you were living down there in the Creek Nation, do you remember the time your house burned up?” Barnett answered, “No.”
They asked him, “If you should wake up in the middle of the night and find that your house was afire, what would you do? Jackson replied, “I don’t know.”
After Jackson had testified for half a day, the government put on their best alienist and he said that in his opinion Jackson Barnett was incompetent and he based that opinion upon the answers to the questions that had been given to Jackson Barnett.
So I took the alienist on, and I took the same list of questions that he had given Jackson Barnett. I said, “Now, you asked Jackson Barnett if he woke up in the middle of the night and found his house afire, what would he do; and he said he didn’t know. Now I’m asking you sir, what should he have said?” The alienist scratched his head and he said, “Well, I think I’d call the police.” Of course, I jumped on him and said, “Do you mean to say, if there were little children in bed and their clothing was on fire, or your wife was suffocating with smoke, that you would just leave them to go off down the street to call the police? Well, of course, it was just duck soup cross examining the fellow that couldn’t even answer the questions that he claimed Barnett hadn’t answered correctly.
The demon got into me then, and I asked this famous world-wide known alienist, there in front of all the newspaper reporters, this question. I said, “Suppose Mr. A owned a peacock, and that peacock went over to Mr. B’s yard and laid an egg, to whom would the egg belong?” The alienist debated awhile and finally said, “I think it would belong to Mr. A. because he owned the peacock.” I said, “Well, sir, for your information, a peacock doesn’t lay eggs, only the peahen does.”
Well, for some reason, that caught the imagination of the reporters and they all rushed out of the courtroom and wrote up articles in the newspapers, and that evening when I was going down the street about five o’clock, they had editions out with big, bold streamers across the front of the prominent Los Angeles newspaper: “Can a Peacock Lay an Egg?”
But one last word about Jackson Barnett. He was not crazy; neither was he incompetent. When I put him on the witness stand later on that day and asked him why he told the alienist that after he came to Los Angeles, he did not build the house on Wilshire Boulevard, he said, “I did not build it. I had it built.” Then I asked him what he meant when he said that his little home down in the Creek Nation had not burned up. He explained that the fire had started on the roof and that the hut had burned down. In other words, Barnett was an Indian: and everything to him, was literal.
But it was quite an experience to meet with the finest alienists in the country and find that they, too, did not know that a peacock does not lay an egg. Now to give credit where credit is due, I got that story from Maybin, my dear wife, and it stuck in my memory; and after being dormant for a number of years, I had a chance to spring it on one of the most brilliant minds in the United States.
I had nothing to do with the other branches of the Barnett litigation; but in order that you may know the outcome, I will give it in brief detail.
Selby and his associates had the marriage between Jackson Barnett and his wife annulled after they had lived together for many happy years.
After Jackson Barnett died, and his wife had laid him away, the Federal Government came and drove her out of her home; and she walked away from that home without any furniture, money, or anything to sustain her for the rest of her life. It was a sad day for the Federal Government and an even more sad day for what we call American Justice.
I certainly hope that from the stories I’ve told about the law practice, you won’t get the idea that I won all of my cases. I lost a lot of good cases, and I had the very Hell beat out of me on many occasions. But I had some humorous defeats too, and I’ll try to recall and recite some of them.
-This might be called the end of Part II.-
[At this point I am on Page 106 of the manuscript/Page 88 of Walker file on computer.]