The Ultimate Resolution

by Dave Sullivan

  "That's quite all right," said his hostess, setting her own coffee cup on the large kitchen table and taking a seat, "but I'm not sure I can be of much help."

  "Well, I'm just running down all the leads," said Bert. "This is excellent coffee."

  "Thank you," said Mary England. "'Running down all the leads,' " she repeated. "You make it sound like a criminal case."

  Bert smiled. "I am a retired Chicago police detective," he said. "I must admit that sometimes I am accused of treating every inquiry like it was a criminal case."

  "I am sure you are just being thorough, Mr. Hanson," she smiled politely.

  Mary England was sixty-two years old. She had kept herself trim, but she looked more frail and less confident than she had twenty years earlier. Her reddish-orange hair had turned mostly white now with a slight tinge of color giving it a faint pinkish hue like that of some natural pearls. Bert Hanson thought she was a pleasant, attractive woman who was straightforward and honest. He began his interview with background questions at first.

  She had never remarried after her husband's death in 1973. His loss had devastated her at first. Although time never "healed" her loss, she said, she had eventually adjusted. Through the generosity of Bob's employer, she had been well taken care of and the children had both been provided college educations. Now, she lived in the same small house she and Bob had shared in Middlebury, spending most of her time with her grandchildren who lived in the St. Louis area.

  Bert told Mary about the Pallmeyer case and his investigation. She immediately felt sympathy for Sarah Pallmeyer.

  "Already a single parent," she said, "and to have that happen to her child, the poor woman. I know after Bob died, the children were my strength and support."

  "I knew the family," said Bert. "That's why I asked my friends Jake Kingsley and Charles Stanton to help. They are the lawyers trying the case in court in Minneapolis right now."

  "Well, I hope they are able to help her," she said, noticing his cup was empty, "You'll have some more coffee?"

  "Please."

  "And maybe you'd like one of these with your coffee?" Mary England smiled at Bert as she placed a plate of large chocolate chip cookies in front of him. "Just baked them myself. Get 'em before my grandkids eat 'em up when they stop by after school."

  "You've twisted my arm," grinned Bert taking a big cookie from the plate.

  Bert explained that they were looking for anything they could find regarding the Cherokee T-350, especially its design and testing. Cherokee's company records listed the people who had worked for Cherokee during the time of the design and subsequent tests. He told her that Jake and Charles had uncovered industry trade magazines and journals showing the industry had some awareness of the rollover problem which had injured Bobby Pallmeyer. He was simply running down all the old former employees to see what they remembered.

  "Bob knew about the problem," she said.

  "What?"

  "Bob knew that tractor was dangerous. In fact he was working on the problem just before he died." She stood and walked to the sink, looking out the window at her back yard. "He was very upset about it."

  Bert sat forward in his chair. There might be something very important here.

  "Mrs. England, . . ."

  "Mary."

  "Mary, I don't want to impose, and I don't want to put you in a difficult position with the company if they are paying your livelihood, . . ."

  "Oh, they're not," she interrupted, "they paid me Bob's salary and made his pension contributions. Now we are past when he could have been eligible for retirement. I have the pension, but it's paid for. It doesn't come from Cherokee. It comes through an insurance company." She returned to the table with the coffee pot.

  As Mary England filled their cups, she said, "Mr. Hanson, . . ."

  "Bert."

  She smiled,. "Bert, don't you worry about imposing on me. The problem that hurt your friend's son was of great concern to Bob. He wasn't happy at all with the company. I think he was about to raise hell with them, or turn them in, or something. So I have no doubt that he would want me to help you if I could."

  "What are you saying?" asked Bert.

  "For several years before he was killed, Bob was upset with his bosses. He thought the 350 was dangerous. He thought they should do something. Bob never brought his work problems home, but this he did. He thought they were stonewalling him. Finally, he started photocopying files and bringing them home to study. He was acting like an industrial spy." She smiled. "It was actually kind of fun."

  "What was he looking for?" asked Bert, trying to keep from appearing over enthusiastic.

  "He told me he thought the company had buried some bad test results and even a report he had filed about the dangers with the tractor. Pardon my French, but he was pissed off. I think he was going to do something about it."

  "What?"

  "I'm not sure, but I know we talked about his job security more than once. He was afraid that if he did something he might lose his job."

  "What did you say?" asked Bert

  "I told him to relax and do what he had to do," she said. "I encouraged him. There are plenty of jobs around. We would have found something. I'd have rather he lost his job, than his integrity."

  This is really a nice lady, thought Bert Hanson. He could imagine her backing her husband's play twenty years ago. England had been lucky to have her, but it turned out not to make any difference. Too bad.

  They talked more about Robert England's concerns about the T-350 tractor and what Cherokee did and did not do about it. Mary told him what she knew about other former employees, whether they were still alive and where they might be now. Eventually they got around to discussing her husband's records.

  "Gosh," she said, "I haven't seen any of that stuff for years. After Bob died, I just left things the way they were for a long time. But eventually, I boxed up most of his stuff and put it up in the attic."

  "You think you still have what he was working on at home?"

  "I got it out of here as a means of adjusting to his loss. That was supposed to be healthy, . . . good for me, and it was. But I didn't throw anything away. Everything is up in the attic. At least whatever he had here at home."

  "Do you think I could see it?" Bert asked tentatively.

  "Oh, sure. Be my guest," she responded. "It's hard to get at though. I'll have my grandson pull it out of the attic this evening. You come by tomorrow and it will be here."

  Bert Hanson drove his rented car back into St. Louis. He would be having dinner later with Detective Jack Green at a downtown restaurant. He was excited about the possibilities that Mary England might provide. Still even if she had something, would it be any good without Robert England himself? Bert would have to discuss the evidence requirements with Charles and Jake.

  ************

  ***

  ************

  Back in Minneapolis, when court resumed, Judge Hawthorne asked, "Mr. Kingsley, are you ready to proceed with Plaintiff's case-in-chief?"

  "Ready, your Honor."

  "Call your first witness."

  "Your Honor, plaintiff calls Sarah Pallmeyer."

  Jake kept her testimony brief. The purpose was to introduce her as a plaintiff and the mother of Bobby Pallmeyer, to show, very briefly, how badly he was injured and thereby make it clear to the jury why they were all here.

  Everett Whittemore likewise kept cross-examination brief. There wasn't much he could do to her. She was a sympathetic witness. He would gain no favor with the jury if he vigorously cross-examined. With a few questions asked in a very polite and sympathetic manner, he established that she had no direct knowledge about the design or manufacture of the Cherokee T-350 or of the accident on Otter Island.

  He finished with, "No further questions, your Honor."

  "Mr. Kingsley?"

  Jake stood. "Nothing more with this witness at this time, your Honor, thank you."

  "You may call your next witness."

  Sti
ll standing, Jake addressed the Court. "Your Honor, plaintiff calls Mr. Fred Slattery."

  The back of the courtroom was about half full of witnesses and other observers. Fred Slattery walked to the front of the courtroom.

  "Raise your right hand, please," said the clerk, with her own right hand raised.

  Slattery stopped in front of the clerk and raised his hand.

  "Do you swear that the evidence you are about to give shall be the truth, the whole truth, and nothing but the truth, so help you, God?"

  "I do."

  "State your full name, please."

  "Fredrick Martin Slattery."

  "You may take the witness stand," said the clerk, pointing.

  Fred Slattery climbed the few steps to the witness box and sat. Judge Hawthorne smiled at him. The witness box was elevated so the witness, although sitting, was at eye level with the lawyers who were standing when they approached. The witness was still lower than the judge whose bench was elevated more than the witness box.

  Jake sat at counsel table and waited.

  Judge Hawthorne looked at Jake and said, "You may proceed, Mr. Kingsley."

  "Thank you, your Honor," Jake began. "Where do you reside, Mr. Slattery?"

  Jake took Fred Slattery through a series of preliminary questions to introduce him to the jury and establish his background and occupation. Having set the stage for Slattery's position as a witness familiar with the tractor and Bobby Pallmeyer and as an eye witness to the tragic incident on Otter Island, Jake asked detailed questions that let Fred Slattery tell exactly what happened on July 22 1990 and how Bobby got hurt.

  " . . . and it just reared up and slammed over on Bobby," Slattery testified. "It was so fast, there wasn't time to do anything. Bobby didn't have a chance."

  "Objection!" screamed Everett Whittemore, jumping to his feet. "The witness is giving a conclusion, your Honor . . . and one he is not qualified to make."

  Judge Hawthorne paused. "Overruled," he said without further comment.

  Jake resumed his direct examination. Fred Slattery finished describing the accident, their efforts to rescue Bobby Pallmeyer, and the helicopter evacuation of Bobby from Otter Island.

  "No further questions," announced Jake.

  "Cross examination?" the judge looked at defense counsel.

  "Yes, your Honor," answered Whittemore rising to his feet. With a red covered booklet in hand, he approached the witness. Fred Slattery watched the attorney cross the open area between the counsel tables and the bench.

  "Mr. Slattery," Whittemore began as he reached the witness box placing the red booklet on the counter before the witness, "showing you what has been marked for identification as Plaintiff's Exhibit 22 entitled Owner's Manual, do you recognize it?"

  Slattery picked up the booklet and examined it.

  "I've seen it before."

  "Had you ever seen it at the time of the accident in this case?" Whittemore stressed the word "accident".

  "No."

  "Your Honor," Whittemore addressed the Court, "we realize that this exhibit has not yet been offered by the Plaintiff and that this witness cannot lay the foundation for its admission, but we ask that it be received in evidence at this time by stipulation to avoid our having to recall this witness for cross examination at a later time."

  "Mr. Kingsley?" The judge looked at Jake.

  Jake knew that Whittemore wanted to make a point with the manual right at that moment, and he could make him wait until the exhibit was properly identified. However Jake thought he might be able to make an important point on redirect at this early stage of the trial that would help his client's cause even more.

  He stood to address the Court. "Your Honor, Plaintiff has no objection to the use of the exhibit at this time. We will stipulate that Plaintiff's Exhibit 22 is the Owner's Manual drafted by the defendant for use with the Cherokee Model T-350 tractor involved in this case and that it may be received in evidence at this time."

  "Mr. Whittemore?" the judge inquired.

  "So stipulated, your Honor." Whittemore replied.

  "Plaintiff's Exhibit 22 is received, then," said Judge Hawthorne.

  "Now then, Mr. Slattery," continued Whittemore, "precisely what were you doing with the tractor at the time of this accident?"

  "We were pulling logs."

  "How many logs were being pulled at one time?"

  "Three."

  "Was that a heavy load?" asked Whittemore.

  "Fairly heavy, I guess," said Slattery, "but the tractor could handle it."

  "Now please turn to page 16 of the manual which has now been received in evidence as Plaintiff's Exhibit 22." He handed the witness the red booklet.

  "Do you have page 16?"

  "I do."

  "What is the title of that page, please?" asked Whittemore.

  "Safety Suggestions," replied Slattery, reading from the manual.

  "And that is a list of twenty-three 'safety suggestions,' is it not?" Whittemore glanced at the jury.

  "Yes," answered the witness.

  "Right," said the cross examiner. "Look at suggestion number 14. Do you see that?"

  "Yes."

  "Very good," said Whittemore. "Now would you please read suggestion number 14 for the jury?"

  Fred Slattery read aloud. "When tractor is hitched to a stump or other heavy loads, always hitch to drawbar and never take up slack in chain with a jerk."

  "And when you were hauling this 'heavy load' of logs with this Cherokee T-350 tractor on July 22, 1990, when your crew member, Robert Pallmeyer was injured, was the load hitched to the drawbar?" Whittemore looked at the jury box again.

  "No," Slattery looked down at the counter before him and then said in a low voice, "we didn't have a drawbar."

  "What?" Everett Whittemore turned back to the witness box suddenly and with a flourish. "What did you say? I am not sure the jury heard you."

  Slattery repeated guiltily, "We didn't have a drawbar. I didn't even know what that was." He avoided eye contact with the jury.

  "Now," said Whittemore pointing to the open manual in front of Slattery, "do you see the large bold type paragraph at the bottom of that page?"

  "Yes."

  "And it's all in capital letters, isn't it?"

  "It is."

  "Please read it aloud."

  Slattery read aloud:

  "UNDER NO CIRCUMSTANCES SHOULD ANYTHING BE PULLED FROM THE LIFT SHAFT OR BE HOOKED TO ANY PART OF THE TRACTOR EXCEPT THE DRAWBAR. FOR HEAVY LOADS DRAWBAR MUST BE IN LOWEST POSITION."

  "And you agree that you didn't follow that directive, did you?"

  "Objection!" said Jake. "the page is entitled 'Suggestions,' not 'directives.'"

  "Oh, I'll let the exhibit speak for itself," said the Judge. "Overruled." He turned to the witness. "You may answer."

  "Nope. I guess we didn't do that."

  "Thank you. No further questions," said Whittemore turning on his heels and walking toward the defense counsel table with a triumphant look at the jury and then at Jake.

  "Redirect?" asked Judge Hawthorne, looking at Jake.

  "Thank you, your Honor," said Jake, as he rose and started toward the witness. Jake stood between the jury box and the witness stand facing the courtroom. He stepped back just far enough so he could address the witness and not block the jury's view or have his back to the jury. He held the Operator's Manual out in front of Fred Slattery.

  "Mr. Slattery," said Jake, "When is the first time you saw this manual?"

  "At the deposition," he replied.

  "When is the first time you saw the drawbar that is mentioned in the paragraph Mr. Whittemore just had you read?"

  "I still haven't."

  "What?" asked Jake.

  "I still haven't," Slattery repeated. "I've never seen a drawbar for that tractor. I don't even know what it looks like."

  "Was there anything on the tractor that told you about the need to use a drawbar?"

  "On the tractor?" asked the witness. "What do you
mean?"

  "Well," Jake began, "were there any labels or directions of any kind on the tractor? For example, was there a brand name or model name or number? Was there anything to identify the controls or tell the operator how to start or run the tractor?"

  "Oh, sure," said Slattery, a look of understanding on his face. There were some metal instruction plates attached to the body of the tractor. I remember there was a stamped metal plate on the side of the body that had some safety rules on it, too."

  "What did it say?" asked Jake.

  "Oh," answered Slattery, "things like don't ride anywhere but on the seat and shut off the engine before making adjustments or oiling. Keep hands and clothing away from the power take-off. Things like that."

  "And did it say anything about using a drawbar?" asked Jake, glancing at the jurors.

  "Nope," said Slattery.

  "Was there anything on the tractor that informed the operator that a drawbar should be used?"

  "Nope."

  "At my request did you read through this manual?" Jake held up the exhibit again.

  "I did."

  "Did you read all of it?"

  "Every word," answered Slattery.

  "Mr. Slattery, when you read this manual after it was produced by the defendant in this lawsuit, were you able to find anything in it that told you that if you did not use a drawbar to haul a heavy load such as the logs being hauled in this case, the tractor might flip over backwards and injure or kill the operator?"

  "Objection!" Everett Whittemore nearly shouted as he came to his feet. "Your Honor, the exhibit speaks for itself, and Mr. Kingsley is asking the witness to assume facts not in evidence . . . and, . . . facts he knows are not true." Whittemore glared at Jake.

  As Jake turned to look across the witness box toward Judge Hawthorne and respond, the Judge interrupted.

  "Oh, I think I will let him answer. Overruled."

  "But Judge," stammered Everett Whittemore, "there is no evidence that simple failure to use the drawbar will cause a rollover and there is no evidence that Cherokee Tractor & Implement Company knew or should have known of such a danger when the manual was written."