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Bar Journal - Fall 2005

KENISONEIAD

By:


0, Virgil sang of arms and men,

      “Aeneid” was the name;

The hero was Aeneas,

and his travels were the theme.

The poem took twelve books to trace a trip

from Troy to Rome

Along the way fair Dido

gave him respite from the foam.

Our epic sings of law and men

(In combat much the same);

Our hero’s name is Kenison,

and cases are the game.

We also travel, but through years —

our hero stayed at home.

His Dido’s named Loretta

’twas good reason not to roam!

 

II

(1946 – 1951)

 

We open up in ‘Forty-six,

with his appointment made

(The game of naming judges then

was not so roughly played)

Our man quite promptly showed his thanks

to those who put him there,

By holding that election ads

must have rates fair and square.1

He struck a blow for property

and did away with “straws”,2

But ruled against cheap cigarettes

(our hero smoked cigars).3

On cause of scrotal hernia

he pondered and he mused,4

While Peeping Toms who sang their songs,

did not have rights abused.5

 

1.   Chronicle & Gazette Publ. Co. Inc. v. Attorney General, 94 N.H. 148 (1946), upholding a statute limiting political ad­vertising rates to those no higher than regular commercial rates.

2.   Therrien v. Therrien, 94 N.H. 66 (1946), holding that a woman could directly convey her property to herself and her husband jointly, without first deeding out to a third party.

3.   McIntire & Borofsky, 95 N.H. 174 (1948), upholding a stat­ute prohibiting the advertising and sale of cigarettes below cost.

4.   Rivard v. I. F. McElwain, 95 N.H. 100 (1948), ruling that death caused by strangulated hernia was compensated under the Workmen’s Compensation Law. “Men, like machines, may suddenly break down.”

5.   In Re Moulton, 96 N.H. 370 (1950), rejecting a claim of un­constitutional self-incrimination where an alleged sexual psychopath had voluntarily given information to medical experts about himself and his activities.

 

III

(1951 -1955)

 

Hail to the Chief! In Fifty-two

our hero’s noble rear

Did now support the rest of him

Upon the center chair.

He’d earlier told Jehovah’s folks

that parks were not their right.6

As Primus, he would then decree

when day turned into night.7

A minor who had married wrong

at leisure could repent, 8

And duty flowed to dear old Dad

through payment of some rent!9

The spousal share for bliss but brief

a fortune hunter earned,10
And William Loeb must offer work

to an ad-man he had spurned.11

 

6.   State v. Derrickson, 97 N.H. 91 (1951), affirming conviction of Jehovah’s witnesses for using a park without a permit, on the ground that the City could exclude all religious ob­servances from parks “under a system that is administered fairly and without bias or discrimination”.

7.   LePage v. Theberge, 97 N.H. 375 (1952), interpreting a stat­ute requiring tail lights “at night” to mean one-half hour after sunset.

8.   Powell v. Powell, 97 N.H. 301 (1952), allowing a petition for annulment of marriage on account of nonage, even after the petitioner had reached the age of consent and had stipulated for temporary support payments.

9.   Brosor v. Sullivan, 99 N.H. 305 (1954), classifying as a “bus­iness invitee” an elderly man who suffered fatal injury when he slipped and fell on a loose rug on the way to his room in his daughter’s house, due to his payment for room and board.

10.       Patey v. Peaslee, 99 N.H. (1955), denying an attempt by heirs at law to bar the rights of the decedent’s surviving husband, where at the time of the marriage, the decedent had been mentally incompetent and suffering from an in-curable disease, and where the husband’s subsequent con-duct allegedly hastened her death (which occurred twenty-two days after the marriage).

11.       McLaughlin v, Union Leader Corporation, 99 N.H. 492 (1955), upholding judgment for Union-Leader advertising man­ager who had been put on indefinite leave of absence and replaced, although his contractual salary continued to be paid.

 

IV

(1956-1960)

 

Ten years they lie behind us now,

with twenty-one to go.
Our hero starts to hit his stride

(as his Opinions show).

For damage caused by beasties wild,

recovery he allows;

The law’s the same for battering boars

as for contented cows.12

The cops can tap a telephone

(like 1984)13

Although an eye that cannot see

can be an eye no more.14

A jury may determine facts

in minutes three, though short,15

While Pig-in-Parlor Democrats

must have their day in court.16

 

12.       King v. Blue Mountain Forest Ass’n., 100 N.H. 212 (1956), sustaining, on a theory of animal trespass, an action against private hunting preserve for losses resulting from depredation of wild boars whose ancestors escaped from the preserve following the 1938 hurricane: “If a farmer who owns or possesses contented cows is held to strict liability for trespass to real estate, it would be a strange doctrine that would not impose at least the same liability upon the owner of a battering boar ....”

13.       State v. Tracey, 100 N.H. 267 (1956), admitting into evi­dence a bookmaker’s tape recorded telephone conversa­tions obtained by police wiretaps, while conceding that some depicted the practice as “Orwellian horror”.

14.       Crown Woodworking Co. v. Goodwin, 100 N.H. (1957), in­terpreting, for the first time, the meaning of word “eye” in the Workmen’s Compensation Law, where the injured workman sought compensation for removal of an eye that had previously been sightless. “There is no case in this state which throws any light on the answer . . . .” Held: Compensation denied.

15.       Patten v. Newton, 102 N.H. 444 (1960), affirming a verdict for the defendant reached by the jury after eight minutes out of the jury box and three minutes’ actual deliberation. “This is a case of an expeditious jury.”

16.       Catalfo v. Shenton, 102 N.H. 47 (1959), remanding for trial a libel action against a political columnist who had referred to the plaintiff’s political faction as “pig-in-the-parlor” Democrats, while doubting that the phrase “pig-in-the ­parlor” was defamatory in itself (citing City of Euclid v. Ambler, 272 U.S. 365 (1928) and The Best Singing Games for Children of All Ages).

 

V

(1961 – 1965)

 

The sixties come with suddenness

as decades seem to do.

New Hampshire starts to wake itself,

Our hero helps it to.

The Rule of Perpetuities

now gets a second look,17

While gamblers learn that two buck bets

are not so hard to book.18

A farmer keeping tabs on chicks

an eavesdropper becomes,19
And minors must their lawyers pay

in beneficial sums.20

Gesticulating drunks are owed

protection from sharp glass,21

Though jailbreak, auto theft and flight

can end parolee’s pass22

 

17.       In Re Bassett Estate, 104 N.H. 504 (1963), abandoning com­mon law conclusive presumption that any person is capa­ble of having children regardless of age, physical condi­tion, surgery or medical opinion, and accepting evidence of a remainderman’s sterility as sufficient to avoid viola­tion of the Rule against Perpetuities.

18.       State v. Groulx, 106 N.H. 44 (1964), finding evidence suffi­cient to establish violation of gambling laws where defen­dant accepted two dollars, phoned in the names of the horses and stated that “the bet is in”. “Judicial notice may be taken of the fact that a betting contract is consummated with greater dispatch, more informality and less meticul­ous detail than would be required of a municipal bond issue or a complicated corporate contract.”

19.       Hamberger v. Eastman, 106 N.H. 107 (1964), sustaining ac­tion for invasion of privacy against farmer whose intercom system, though intended to check on operation of a water system for his henhouse, allegedly overheard his tenants’ bedroom activities as well.

20.       Porter v. Wilson, 106 N.H. 270 (1965), ruling that counsel who represented a minor in a contested guardianship was entitled to payment for the value of benefits conferred, even though his services were not a “necessity”.

21.       Ramsey v. Anctil, 106 N.H. 375 (1965), upholding a common law cause of action of a restaurant patron who, while intox­icated, banged his fist on the table, breaking his glass and cutting himself.

22.       Herbert v. New Hampshire Parole Board, 106 N.H. 401 (1965), affirming Parole Board’s issuance of a warrarit for parole violation against a parolee who escaped from jail, stole a car and fled to Texas.

 

VI

(1966-1970)

 

Late ‘Sixties’ clouds of conflict loom,

there is no peace it seems;

A war in Asia casts its pall

upon our nation’s dreams.

Our hero deals with conflicts, too,

 but different from the rest:

He rules that when in doubt, he’ll choose

 the law he likes the best. 23

A junkyard may be amortized

if it cannot conform,24

And State Store patrons falling down

shall bear, alone, the harm.25

The good Lord’s name may still be spoke

 by public entity,26

While those who run to practice law

must all attorneys be.27

 

23.       Clark v. Clark, 107 N.H. 351 (1966), abandoning the “place of the wrong” rule in conflict of laws and substituting, in-stead, five “choice-influencing factors” one of which is “preference for the sounder rule of law.”

24.       LaChapelle v. Goffstown, 107 N.H. 485 (1967), sustaining local zoning ordinance which limited continuation of non-conforming uses to one year after the effective date of the ordinance, rejecting the appeal of a junkyard owner whose property had been rezoned residential.

25.       Krzysztalowski v. Fortin, 108 N.H. 187 (1967), extending the State’s sovereign immunity to the manager of a State Li­quor Store and dismissing a suit brought against him by a customer who slipped on ice and injured herself while leaving the store.

26.       Lincoln v. Page, 109 N.H. 30 (1968), denying a petition to prohibit invocations by clergymen at town meetings. “Ref­erences to the Deity in coins, currency and constitutions and on public buildings and plaques have never been con­sidered an establishment of religion”.

27.       New Hampshire Bar Association v. LaBelle, 109 N.H. 184 (1968), striking from the ballot the name of a candidate for county attorney who was not a member of the Bar.

 

VII

(1971-1974)

 

Our hero’s Silver Jubilee

deciding wrongs and rights,

 Is spent in making thunderbolts

to hurl from Concord Heights.

His new court boasts a fireplace

to drive away the chills;

His office sports a shower stall

By Royal Barry Wills.

He says a town gone to the dogs

is now beyond repent;28

A voter need not stay six months

to be a resident.29

The motorcyclist (though unloved),

a helmet still must wear,30

Though sheriffs may their eyelids close

to gambling at a fair.31

 

28.       Town of Seabrook v. Perkins, 112 N.H. 37 (1972), holding that a referendum vote approving greyhound racing could not be rescinded by a later vote.

29.       Chapman v. Foote, 112 N.H. 298 (1972), striking down, as unconstitutional, a statute requiring six months residence for voting purposes.

30.       State v. Merski, 113 N.H. 323 (1973), sustaining a statute requiring protective headgear for motorcycle operators, while recognizing “that the defendant, an ardent motorcy­clist, presents his challenge to the statute with conviction and sincerity and that his challenge is made on behalf of ‘the not very numerous, generally unloved motorcyclist.’ “

31.       In Re Ash, 113 N.H. 583 (1973), declining to remove from office the sheriff of Grafton County who had allegedly ad­vised local police to disregard gambling games at the County Fair. “ [T]he public interest in the efficient op­eration of government is better served by not removing an official from office for every peccadillo.”

 

VIII

(1975 -1977)

 

We’re coming down the homestretch now,

the checkered flag awaits;

The finish line is seventy

(so Constitution states).

While time remains, our hero

never falters in his speed;

He rules a father can’t wait years

and then deny the breed.32

A ski lift made of cogs and wheels

machinery may not be.33
A tree stump offers no more risk

than when it was a tree.34

A dachshund flying on a plane

must have due care, he thinks;35

And state employees should be free

to fight a mill that stinks!36

 

32.       Watts v. Watts, 115 N.H. 186 (1975), affirming the trial court’s refusal to allow blood tests to disclaim paternity after the father had acknowledged the children as his own for fifteen years.

33.       King Ridge v. Town of Sutton, 115 N.H. 294 (1975), ruling that ski lifts are part of a ski area’s real estate and are tax-able as such, rather than machinery which was previously relieved from taxation.

34.       Paquette v. Joyce, 117 N.H. (10124177), finding no breach of duty by defendants who had cut a deteriorating tree, located six feet off the road, down to a three-foot stump which plaintiff’s car ran into.

35.       Davis v. Northeast Airlines, Inc., 116 N.H. 429 (1976), refus­ing to enforce airline’s ‘exculpatory tariff limiting liability for injury to dogs carried as excess baggage.

36.       Bennett v. Thomson, 116 N.H. 453 (1976), Dissenting: “Some time ago in a lone and lonely dissenting opinion I con­cluded that State employees were not second class citizens who were required to give up their constitutional rights for the privilege of engaging in public employment. * * * That conclusion is still valid.”

 

IX

1978

 

We’ve sung of law and of a man

who’s made it all these years,

To bring him joy and laughter

(for he won’t accept our tears).

An act like his is tough to match

it’s hard to fill his chair;

The Governor has tried to, but

the Council’s left it bare.

He’s not done yet, he’s teaching now,

to kids who want to learn

Of justice and of probity,

precision and concern.

 

All epic poems must have an end

with stories left to tell,

So here’s to you, Frank Kenison,

still serving us damn well!­­

 

*When this article was originally written for the N.H. Reports, Martin S. Gross was a member of the firm Sulloway, Hollis, Godfrey & Soden, known today at Sulloway & Hollis. The article is published here with the permission of the NH Supreme Court. Assisting in research were firm members Thomas P. Colantuono, Karin A. Kramer, Jamie Hage, James C. Wheat, Edward l. Cross, George R. Moore, & Peter F. Imse.

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