Kentucky Lawyer

Solid foundation

99 Kentucky Lawyer Solid foundation Orie S. Ware of Covington is a lawyer of ability and an ecellent storyteller. He gives the following story which, to my mind, is one of the real gems of Kentucky courthouse lore. It seems that the owner of a large Covington office building near the banks of the Ohio River sold it to an investor. The building sat on a fill of new made ground and, according to best engineering practices, required a foundation of particular specifications in quantity of steel and cement. The seller had, according to the complainant , warranted the building as having the necessary underpinning . Shortly after the transfer the new owner saw that the building gave evidence of sinking. Cracks came in the walls and it appeared that his investment was about to be lost. Through his attorney, Mr. Ware, he sued the grantor for a rescission of the contract and damages for breach of warranty. The defendants denied the allegations of the petition (complaint) and plead by way of confession and avoidance that even though the foundation might not contain all the ingredients he had represented it to, it was nevertheless a good foundation and entirely adequate for the kind and size of building it supported. Mr. Omer Rogers, an eminent lawyer of Boone County and Covington, represented the defendant. The issues were made, and the trial date having arrived, a jury was selected and the litigants and their capable counsel repaired to the battle. As an important feature of this episode, it must be pointed out that the circuit courtroom in Covington at 100 Mac Swinford that time had a very large and beautiful clock hanging on the wall opposite the judge’s bench. While not unlike in appearance the old Victorian clocks in public buildings of a former era, this one was singularly different in one important particular. It struck on the hour and the half hour and when it was striking, with its melodious but loud gong, all proceedings in the court had to stand still until the striking was concluded. The plaintiff testified and introduced other witnesses showing the nature of the damage to the building and the kind of foundation under it. He did a thing which is sometimes dangerous, but if it works is the most effective strategy in the trial of a lawsuit. He saved his best witness to be used in rebuttal. The plaintiff closed and the defendant offered his proof. In his own testimony he denied the damage to the building and offered proof by two local contractors who testified that in their opinion the formula used in miing the concrete for the foundation was entirely adequate. In rebuttal, the plaintiff called his star witness, a Colonel Johnson, formerly of the United States Army Engineers and presently consulting engineer for one of the largest building contractors of Cincinnati. The witness qualified as an epert, giving his educational background and practical eperience. He was a very tall and handsome individual about seventy years of age with an erect military bearing. His testimony was most effective and was obviously producing telling results. The jury was impressed by his manner and the substance of what he was saying to them. When the direct eamination was concluded, the witness was passed to defense counsel for cross-eamination. 101 Kentucky Lawyer Mr. Rogers was a trial lawyer of no mean ability. He was square of frame and jaw and when aroused gave the appearance of a pit-bull terrier pawing to get at his prey. This witness had without doubt ecited him. He knew his case was to be won or lost depending upon the effectiveness of failure of his cross-eamination. He settled down to what he hoped would be a successful battle of wits with a clever witness. With set jaw and fire in his eye, Mr. Rogers sailed in. “Mr. Johnson—I believe you said that was your name, didn’t you?” he asked. “Yes, sir,” was the calm reply. “You said you were a retired Army officer and a graduate engineer, I believe?” “Yes, sir.” “You say you graduated from Purdue University and Massachusetts Institute of Technology?” “Yes, sir.” “You are now the chief consulting engineer of a large Cincinnati building company?” “Yes, sir.” “You were on the staff of General William L. Sibert in constructing roads for military purposes in...