Bar Journal - Fall 2005
By: Attorney Martin L. Gross
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!
(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.
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.
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
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).
(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.
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.
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.”
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.”
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.