Congratulations, Attorney Allison Ware, the judge ruled in your favor over Attorney Allison Ware, whose pettifogging argument reveals him to be utterly incompetent.
It’s too bad Robert Ripley was still years away from starting his Believe It or Not! column; he would have loved this 1911 situation in his hometown of Santa Rosa, where the same lawyer represented the plaintiff in one case and the defendant in another, with the same legal question pivotal in both cases. No matter how the court ruled, Attorney Ware would probably win one of the cases and lose the other. And this crazy, double-edged sword of a situation didn’t happen in different places and different times – Ware was asking for a decision from a judge at the same hearing, simultaneously arguing for and against the same point. This was a man who could obviously walk and chew gum at the same time, and probably whistle as well.
One case involved the late Pincus Levin, who was a partner in the Levin Brothers Tannery, Santa Rosa’s largest employer at the time. Levin died in a spectacular Marin county train crash in August, 1910, when twelve were killed as steam locomotives collided head-on. “The two engines reared into the air and locked themselves in deadly embrace,” reported The Press Democrat luridly. The Levin family sued the railroad for $25,000, and Ware was their lawyer.
The other case was a suit over the wrongful death of a Chinese-American man named Young Chow, who was struck by an automobile and killed at “Gwynn’s Corners”, which was the intersection of Old Redwood Highway and Mark West. His family filed suit against the driver of the car for $5,000 and Ware represented the driver.
Here’s the legal issue that was being asked: Could a lawsuit on behalf of a “non-resident alien” be filed in California? Young Chow’s beneficiaries were to be his wife and two children in China. Pincus Levin, an unmarried 28 year-old Russian-Pole who had emigrated to America ten years earlier, presumably named his parents or other relatives in the old country.
The question was pretty much a Constitution 101 no-brainer: All that mattered was that the wrongful deaths occurred within the United States. The 5th amendment guarantees “no person shall…be deprived of life, liberty, or property, without due process of law” and the 14th Amendment further emphasizes due process is not restricted to just U.S. citizens: “Nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.” The Constitution didn’t care that neither Pincus Levin and Young Chow were citizens, and didn’t care where any award for damages would be going. Even Chinese immigrants, who endured all manner of legal discrimination otherwise, were specifically guaranteed equal protection under the 14th Amendment by a landmark U.S. Supreme Court decision, Yick Wo v. Hopkins (1886).
Thus Ware and the other lawyers went before a Superior Court judge in San Francisco and were told that no, you can’t throw out a case just because the money would be going to China or Poland or wherever. It was a victory for Ware in the railroad lawsuit and a setback for Ware in the automobile lawsuit.
Curiously, no newspaper editorialized about how damned odd it was for Ware to show up at a court hearing wearing two hats. The Press Democrat mentioned it in passing and implied Ware felt the railroad was making a Hail Mary Pass by raising the issue but appended the automobile suit to the motion because it couldn’t hurt so why the hell not:
|“Attorney Ware thought at the time there was no merit in the contention and that he could easily defeat such a proposition of law. However, he brought forward the same point in the suit of the Chinese administrator against Charles Patchett of Healdsburg. This was done in order that if the point was sustained in the court by Judge Hunt that it could be taken advantage of in the court here.”
How did these lawsuits end? Nothing more about the Levin case appeared in the papers, so it was presumably settled out of court quickly after the judge’s ruling. The railroad had no other defense; the coroner’s jury had already decided the railway was guilty of gross negligence. There is a footnote to the story, however. Levin was on the train because he had just obtained $6,000 (about $150,000 today) in “negotiable paper” from a San Francisco bank and the document wasn’t among his remains. The newspapers never explained exactly what it was – most likely some sort of bonds – but press coverage invariably mentioned it “could be cashed by anyone.” Some historians have since claimed it was never found, but that’s not true; a man on the wreck clean-up crew picked it up from the ground but didn’t understand what it was, and once he realized it was valuable, promptly turned it over to the bank.
The Young Chow case went to trial, but not before Attorney Ware filed a motion claiming the victim caused the fatal accident by turning his bicycle into the path of the car. (This was not the first auto fatality in the Santa Rosa area; the previous year a nine-year old boy was run over at the corner of Third and B and the coroner’s jury found the child was at fault for dashing in front of the car without looking.)
The jury decided in favor of the plaintiff, awarding Young Chow’s heirs $2,500. (Did it help that the lawyers for Chow made sure no juror owned an automobile?) The jury also found the driver was negligent in going too fast and lied about tooting his horn as a warning. There’s a footnote to this story as well: Young Chow was killed when he was bicycling back to Santa Rosa from the ranch of Harrison Finley, the grandfather of Helen Finley Comstock. Long-time readers of this journal may recall that Mr. Finley had his own dangerous encounter with an auto in 1908, when a driver crashed into a wagon carrying him and most of his family. After this death of his employee, Harrison Finley had another reason to be distrustful of the new horseless contraptions.
The final score for Attorney Allison B. Ware was 1-1, winning the Levin case and losing the Young Chow judgement. These were among his final appearances in court; he was 64 and would live about another three years. His son Wallace later wrote an autobiography titled “The Unforgettables” that recalled his father as a jovial man with a talent for persuasion. He arrived in San Francisco in 1855 and later told his children it was then a “fecund mulching bed of frolicsome fillies and gay Lotharios.” His first job, at age 18, was running a school for incorrigible youths. He succeeded by appointing six of the toughest guys to be “captains,” ordering them to disarm their fellow hoodlums and keep them in line. In exchange he promised the boys a night off every week that would wrap up with an expenses-paid visit to “a friendly resort, where the ladies are always pliant, gracious, sweet, smiling and co-operative.”
Ware eventually became the Sonoma County District Attorney, settling down with his family of six children at 1041 College Avenue, calling their home the “Ware Hatchery.” It was one of the few residences seriously damaged in the 1906 earthquake (pictures and a story here) but they rebuilt at the same location. He loved kids, hosting neighborhood spelling bees and awarding jelly bean prizes. In 1904 the family threw a birthday party for daughter Mabel where the highlight was a guessing game with the mesmerizing question, “How old is Mr. Ware?” Only a very persuasive lawyer could pull that off as children’s party entertainment.
CHINESE IS KILLED BY AUTO
Hurled in Air by Impact and Run Over by Machine
A Chinese employed on the Harrison Finley hop ranch, on the Mark West road, just off the main Healdsburg road, was struck by an automobile on Friday afternoon. The accident occurred near Gwynn’s Corners, and the Chinese was so badly injured that he passed away in a couple of hours. The dead man was riding a bicycle at the time of the accident, and must have become confused or attempted to cross the road in front of the rapidly approaching automobile.
When the auto struck the man he was hurled some distance in the air, and fell directly in front of the machine. The heavy automobile then ran over the Chinese and mashed him considerably. The injured man was carried into a near-by residence by those in the auto and Dr. R. M. Bonar was summoned to attend him. From the first it was seen that injured man could not survive and Dr. Bonar did all he could to relieve his sufferings.
The name of the driver of the auto which struck the Chinese was not learned. On Saturday morning Undertaker Wilson C. Smith went out to the residence where the Chinese passed away and brought the remains to this city.
– Santa Rosa Republican, April 22, 1911
SMALL ESTATE OF CHINAMAN
Young Chow Left Fifty Dollars for Relatives Who Reside in the Chinese Empire
The first petition in a long time in the estate of a deceased Chinaman was filed on Thursday in the matter of the estate of Young Chow. Chow did not die possessed of much of this world’s goods. He left some cash and personal property valued at fifty dollars. Young Yup is the petitioner, and the petition sets forth that the next of the kin of the deceased are Joe Shee, his wife, and two children in Pong Woo, China. Attorney R. L. Thompson is the attorney for the estate.
– Press Democrat, June 19, 1911
SUES FOR $5,000 FOR DEATH OF CHINAMAN
The predicted damage suit growing out of the killing by an automobile of Young Chow, a Chinaman, by Charles Patchett, on the Healdsburg road near Gwynn’s Corners, some two months ago, was commenced in the Superior Court yesterday by Young Yup, who has been named administrator of the Chow estate. Attorney R. L. Thompson represents the plaintiff. The dead man has a wife and two children in China and the suit in their interest. It is charged in the complaint that Patchett was driving his automobile in a fast and reckless manner at the time he struck Chow, who only loved a short time after the accident. The defendant is charged with carelessness and negligence. At the time of the accident Chow was riding a bicycle.
At the conclusion of the testimony the Court took the matter under advisement and it stands submitted.
– Press Democrat, June 21, 1911
CAN NON-RESIDENT ALIEN PROSECUTE A SUIT HERE?
New Point Raised in Court Here on Monday
Can a non-resident alien prosecute an action in the courts of California?
This is a new question urged in Judge Seawell’s department of the Superior Court here Monday morning by Attorney Allison R. Ware in the suit for $5,000 damaged brought by Young Lup, a Chinaman as the administrator of the estate of Young Chow, also a Celestial, who was run down and killed while riding a bicycle on the Healdsburg road near Gwynn’s Corners. Charles H. Patchett, who was riding in the automobile is the defendant, and negligence is charged against him by the plaintiff.
J. M. Thompson and Rolfe L. Thompson represent the plaintiff and Allison B. Ware is counsel for the defendant. The case came up on argument Monday morning, and Mr. Ware claimed that a non-resident man cannot maintain a suit in the courts in this state. The suit is brought in behalf of Chow’s relatives in China. A similar point is being made by the Northwestern Pacific railroad in answering the suit for damages brought by the late Pincus Levin, who was killed in the railroad wreck at Ignacio where a number of persons lost their lives some time since.
Judge Seawell took the matter under advisement and his decision is awaited with considerable interest.
– Press Democrat, June 26, 1911
NON-RESIDENT CAN BRING SUIT
Attorneys Ware and Berry Win in San Francisco
Attorney Allison B. Ware and Jos. P. Berry won an important legal decision in San Francisco on Friday when they presented an elaborate argument to Judge Hunt of the superior court there, on the question as to whether a non-resident alien can bring and maintain an action in the courts.
The local attorneys represent Nate Levin, who as administrator of the estate of the late Pincus Levin, has sued the Northwestern Pacific railroad for damages. The suit grows out of the collision at Ignacio in which Levin and others were instantly killed.
Judge Hunt made the ruling direct from the bench that a non-resident could maintain an action in the courts and this establishes the standing of Mr. Levin at once.
The point was brought up by the attorneys for the railroad in this suit and Attorney Ware thought at the time there was no merit in the contention and that he could easily defeat such a proposition of law. However, he brought forward the same point in the suit of the Chinese administrator against Charles Patchett of Healdsburg. This was done in order that if the point was sustained in the court by Judge Hunt that it could be taken advantage of in the court here.
Judge Hunt has consented to hear the case of Levin against the railroad in Marin county, but the preliminary argument on the demurrer was made in the court at San Francisco on Friday. Attorneys Ware and Berry feel much elated at this victory.
– Santa Rosa Republican, June 30, 1911
CLAIM CHINAMAN WAS TO BLAME FOR DEATH
In an answer filed in the office of County Clerk William W. Felt, Jr., on Monday, in the suit of Young Yup, administrator of the estate of Young Chow, against Charles Patchett. It is claimed that Young Lup [sic] was responsible for the accident that caused his death. The Chinese was killed in a collision with Patchett’s automobile near Gwynn’s Corners last summer, and the answer sets up that the negligence of the Chinese in turning to the left side of the road instead of to the right side, was responsible for the collision. Attorneys Allison B. Ware and Phil Ware represent the defendant.
– Santa Rosa Republican, October 10, 1911
AUTOMOBILISTS ARE NOT WANTED ON JURY
Owners of automobiles were not wanted on the jury now trying toe damage suit of Young Lup vs. C. H. Patchett. During the examination of talesmen in Judge Seawell’s Department of the Superior Court here yesterday, counsel for the plaintiff queried each man as to whether he was the owner of automobiles were excused. An automobile figures prominently in this case, as the plaintiff appears as representative of the heirs of Young Chow, a Chinese, who was killed by an automobile on the Healdsburg road near Gwynn’s Corners.
– Press Democrat, January 10, 1912
$2,500 DAMAGES AWARDED FOR DEATH OF CHINAMAN
Plaintiff Wins in Trial In Judge Seawell’s Court
Charles H. Patchett, the defendant was the last witness called in the suit brought against him by Young Lup, administrator of the estate of Young Chow, claiming $5,000 damages for the death of Chow by alleged carelessness of the defendant while driving his automobile on the Healdsburg road near Gwynn’s Corners.
Mr. Patchett testified, as did other witnesses on the previous day, that he was driving carefully at the time, that he sounded his horn a number of times and also shouted to the Chinaman before the accident happened. He claimed that the Chinaman, who was riding a bicycle, turned from the track in which he was riding on the road and swerved in front of the auto. Mr. Patchett claimed the accident was unavoidable. There was some conflict of testimony as to the speed at which the automobile was being driven at the time of the collision, but Patchett maintained that he had slowed down at the time he attempted to pass the Chinaman.
Attorney Allison B. Ware, with whom was associated Phil Ware for the defendant, took the witness through a very careful examination, as did Attorney Rolfe L. Thompson, for the plaintiff, when he took hold of the witness.
Before the noon adjournment Attorney Thompson had made his opening arguments to the jury, claiming that Patchett had been negligent and that the accident could have been avoided. Counsel made a strong speech.
When court resumed in the afternoon Attorney Allison B. Ware argued the case to the jury for the side of the defendant, making a powerful case of the facts and evidence adduced and denying any negligence of carelessness on the part of Mr. Patchett.
Attorney Thompson replied to the argument of counsel for the defense in another strong speech to the jury. Judge Seawell then delivered his charge to the jury.
The jury retired to consider the verdict shortly before five o’clock. At six o’clock they were taken to “Little Pete’s” restaurant for supper in charge of Deputy Sheriff Donald McIntosh and returned shortly after seven. It was nine o’clock before they had agreed upon a verdict.
The jury found for the plaintiff in the sum of $2,500 and also answered the following special interrogatories submitted:
Was the defendant riding at a rapid rate of speed at the time of the accident? –Yes.
Did the defendant operate and manage the automobile in a negligent and careless manner at the time of and immediately prior to the said accident? –Yes.
Did the defendant cause the said automobile to slow up and lessen the speed thereof? –Yes.
Did the defendant sound the automobile horn and warn Young Chow in a timely manner? –No.
Did Young Chow, by his own negligence, contribute proximately to the resulting in life death? –No.
Did Young Chow, plaintiff intestate, when the defendant was approaching on the left side of the road in the automobile, carelessly and negligently drive the bicycle on which said young Chow was riding in front of the said automobile on the left hand side of the road? –No.
Counsel for the defense have asked for a stay of execution for thirty days. It is expected that a motion for a new trial will be made.
– Press Democrat, January 12, 1912