THE CROSS EXAMINATION OF THE PRIEST ABOUT “ACTS OF GOD”

THE CROSS EXAMINATION OF THE PRIEST ABOUT “ACTS OF GOD”

At the request of a friend, who wanted me to write an interesting story about one of my jury trials I sent him a description of a jury trial I had over 50 years ago in Skagit County Superior Court. You will not learn anything from the case but I feel motivated to share with you. I still smile when I think about that trial

The case I filed on behalf of a Catholic priest was defended by my late friend Robert K. Waitt. Bob was born in Seattle in 1931 and graduated from Washington state college. After graduation he enlisted in the Marine Corps and on discharge was admitted to Gonzaga law school where he and I became friends. Bob graduated two years before I did from law school in 1957 and moved to Issaquah. He was a judge of the Issaquah District Court and had a law firm in Seattle which specialized in the defense of insurance companies.

Over the years we had a number of cases against each other. I was handling plaintiff cases and he represented insurance companies. As a result, we were often on opposite sides in cases. One case involved a Catholic priest as plaintiff, the reverend Paul Auer. Father Auer was the parish priest at St. Mary’s Catholic Church in Anacortes and I was a long time member of the congregation.

Part of his responsibilities included conducting Sunday services at mission churches in the San Juan Islands. His transportation, to get to the islands, was a  boat he kept at a Marina in Anacortes. In the early 1960’s the priest went to the marina to have the boat lowered from storage into the water, so he could  travel to the mission churches in the San Juan’s. He was waiting while his boat was being  lowered into the water when suddenly a supporting line or connection broke. The boat fell a long distance  hitting the water, hard and at an angle, causing significant damage to the boat.

When the priest asked for reimbursement of the repair bill, the  the marina’s insurance company refused to pay. The company said there had been no negligence by the marina. They insisted the cause was an unforeseeable act. They claimed they were not liable under Washington law at that time. They relied on what was then commonly known  as “an act of God” defense. Under the law, some events were considered acts of nature or inevitable events for which there was no legal liability. The insurance company made a token offer of reimbursement.

Father Auer consulted me and agreed to take the case on a pro bono basis. I sent a demand which the company rejected. The adjuster was unwilling to conduct any reasonable negotiation. I filed a lawsuit and my friend Bob Waitt was hired by the insurance company to defend the case.

In my opening statement I described the importance of the boat for the work of the priest in providing Sunday services in the San Juan Islands. I described to the jury the shock of the priest in seeing his boat suddenly falling down into the water causing extensive damage. I explained the cost of repair as well as the claim for loss of use and the amount we were seeking in damages. In Bob’s opening statement he expressed sympathy for what had happened and the damage done, but explained that regretfully under existing law the marina was not responsible as it was considered in law an act of God for which the marina cannot be held responsible.

I called witnesses from the marina to describe the facts leading up to dropping the boat and I called a witness regarding the boat damage. Bob’s position in examining witnesses was his defense that there was no liability under law because of the law regarding responsibility for acts of God.

I called the parish priest. Father Auer told the jury about how important the boat was for his trips to the San Juan Island mission parishes. He told the jury about the day the boat was dropped and the cost of the repairs. It was compelling testimony. When Bob cross examined the priest, he expressed sympathy for the situation, but focused on the lack of negligence on the part of the employees lowering the boat that might cause the cable to break.

He was doing an effective, professional cross examination until he made the mistake using the phrase “act of God.” When the priest heard him use that legal phrase, he immediately said, like a parent to a small child, “Mr. Waitt, as a Catholic priest, I am an expert on God and this certainly was not an act of God.” He continued to sternly lecture Bob about moral law. He pointed out this damage was due to the marina’s defective cable for which the marina was clearly responsible and nothing to do with God. In addition, he insisted that the marina had a moral obligation to accept responsibility and be accountable for its actions that harm others.

As a Church going Catholic, Bob was intimidated by the priest and was reluctant to interrupt or object. When the priest finished, Bob tried to recover by citing the law that applied to the case and pointed out it was a legal question, not a moral one. The priest was having none of that argument and quickly brushed it aside as not only theologically invalid, but a total failure to accept responsibility and be accountable for debts owed for harm done to innocent people. During this entire exchange the jury was clearly entertained and highly amused by the priest’s argument and Bob’s great discomfort. Finally, Bob realized it was better just to stop and sit down before it got worse, so he waived any further cross examination.

There was little more testimony and the jury was instructed on the law, including the law about act of God. My argument was brief and relied upon the fact the boat had been in the total control of the marina. In final argument, Bob gave it his best effort. He referred to the jury instructions, the law and maintained the marina should not be held legally responsible. I could sense the jury wasn’t buying any of it and made a brief argument for a verdict of full damages claimed. The jury was out only a short time and brought in a verdict for the priest for entire amount of damages claimed. ,

For many years after the case was over I teased Bob about the Catholic priest who had beaten him in a jury trial He always laughed along with me. Bob had a great sense of humor. He was a decent man with a high sense of ethics. He died in 2016.



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