Note: In 1999, Justice Korbin Minotaur served temporarily on the New Salem Supreme Court to participate in one decision from which one of the regular justices had to recuse himself (for an incident involving abuse shown toward a prediabetic referee). Though the decision has been published in the New Salem Reporter, Justice Minotaur has asked Mr. Cornwall to also record it on this blog so that this blog will eventually provide a comprehensive collection of Minotaur’s papers. Mr. Cornwall here reproduces the opinion that was distributed to the parties before official publication.
This opinion is subject to revision before publication in the New Salem Reporter.
IN THE NEW SALEM SUPREME COURT
OPINION (For Official Publication)
Case No. 957246-S
FILED April 4, 1999
Prichard TURK, Plaintiff and Appellant,
Loramee ATTATURK, Defendant and Appellee.
Seventh District, Jericho Borough
The Honorable Emily X. Cedarbaum
Prichard Turk, Appellant Pro Se
Valor Forge, Mollerbee Village, for Appellee
HORMINGHAM-REMY, David, J.:
The startling, pathetic facts of this tort dispute have caused this court to experience a catharsis.
Our players, plaintiff and appellant Prichard Turk (“Turk”) and defendant and appellee Loramee Attaturk (“Korby”), first shared the stage many years ago at Jackson the Indian Murderer University, in uptown Zerin. See State v. Forty-Five Limes and a Tuba, 203 N.S. 12, 13 (referring to parties by shortened names) (1989); In re Shroud of Priam, 129 N.S. 495, 498 (reciting facts of case before confronting legal and spiritual issues) (1941); Diary of David Hormingham-Remy 29,705 (3:40 pm, March 15, 1959) (documenting youthful attempts to levitate Mount Zerin just as prophet of old did). But see Coriantumr Shoe Co. LLP v. House of Shiz (referring to parties by integers). As Korby testified when called at trial:
“I first met Prichard when I was a second-quarter freshman at Jackson. I cleaned faculty offices nights and often saw him laboring over a manuscript or wringing the last bit of juice from a rind. I always bragged to my friends that I knew him, though in my heart I knew he wouldn’t recognize me if we were crammed into a fridge together. Once when I stepped into his office he remarked, ‘You’ve sure got a little garbage can.’ As a janitor, I had to provide my own garbage can, and the only one I could find was an old Christmas tin whose savory caramel corn had been temporarily transplanted into a shoebox. When he said that I felt awkward. Thenceforth I would leave my tiny can in the hall and empty his garbage into my sweatshirt, then transfer it into my can out of his sight. This was generally laborious, for his can was one of those giant rubber ones with wheels, and it was always overflowing with wet papers and what appeared to be griffin feathers.” See Holodeck v. Nation of Borm, 201 N.S. 850, 854 (1988) (quoting trial transcript in meandering, unjust appellate opinion) (Hormingham-Remy, Kormigor, J.).
Later, both parties moved to northern New Salem, where they met again by coincidence while serving on the Ecumenical Posse, an interfaith law-enforcement squad that had been organized to capture the escaped felon Crooked Shears. When the posse had been on the chase for only a few days, some of the horses died, and the leader gave a rousing speech worthy of Henry V, pleading for some of the men to double up on one mount. By this time, Turk and Korby were already the closest confidants, as both had spent most of the time to that point attending to one another’s violent nausea, the source of which no one could determine. Cf. Diary of Kormigor Hormingham-Remy 402–809 (February 12, 1951–May 19, 1951) (detailing uninspiring battle with painful, life-threatening diarrhea brought on by completely accidental death of Kormigor’s annoying ferret during Kormigor’s absence). They volunteered to share the reins of the trustworthy Barnacles Tory, a mule who kindly let his riders snuggle next to him for warmth, sometimes even squirting milk into their mouths without their assistance. Cf. Numbers 22:21 et seq. (recounting story of an equally outstanding mount). According to one expert’s estimation, the two public servants would ultimately log more than twenty-four hundred hours in the saddle together and eat more than a ton of rancid crow meat.
The six-month posse chase ultimately proved a failure, except with respect to Turk and Korby, who while bathing in a mountain lake made promises with one another to become business partners afterward. Their first venture, developing and marketing the games “Roger” (participants simply yell “Roger!” in one another’s ears) and “Coccer” (soccer in cars), went nowhere. But then they opened a stand selling pudding at New Salem’s Bible Games (the “Games”) on December 25, 1984.
We take judicial notice that the Games are a fortnight of merrymaking, near-sinful gluttony, athletic competition, glorious capitalism, and spiritual ecstasy. One pack of scholars believes that the Games in ancient times were inseparably connected with the important ritual of smorgasbord. See Mitch Rock et al., “Ideas for Fundraising,” in Scoutmaster’s Guidebook 191, 194 (Harcourt 1991). A different view is voiced by one maverick, self-anointed intellectual, who contends they were “belched up with Jonah, covered in guck.” Diary of Kormigor Hormingham-Remy 45,812 (3:14 a.m., June 4, 1984). Other historians—and they appear to carry the day—explain that the Games were founded as a publicity stunt in 1962 by the domestic corporation ARAM, Inc., in hopes of sparking sales of “webbed shoes” (shoes for people with webbed feet) and drawing support for a bill that, had it passed, would have enabled for-profit corporations to adopt children. See, e.g., Treaty Shears, “ARAM to Father ‘Bible Games,’” New Salem Trumpeting Beagle, at A-1 (October 30, 1962) (lead story); Saul Gathers-Lemdorgorson, “Web-Footed Robot Children Will Likely Rule World in Year 1982,” New Salem Trumpeting Beagle, at A-4 (November 1, 1962) (editorial); Treaty Shears, “Games Help ARAM Behead Competition,” New Salem Trumpeting Beagle, at A-1 (November 23, 1963) (lead story); Paul Gathers-Lemdorgorson, “Games Created in Image of Maker,” New Salem Trumpeting Beagle, at A-4 (November 22, 1974) (editorial).
Turk and Korby were prospered in their first few years of mutual labor. The more experienced, sophisticated Turk made and executed the business plans, including the naming of all six pudding flavors, which, in order of their invention, are “Angel at Bethesda,”(FN1) “The Gathering,”(FN2) “Unholy Thoughts,”(FN3) “Experimentation,”(FN4) “Crack Whore,”(FN5) and “All Hail Baal.”(FN6) The more outgoing Korby, in his role as Marketing Evangelist, rounded up customers like a pied piper, falsely telling them the proceeds were dedicated to “‘Two by Two’ Racially Discriminatory Petting Zoo,” a charitable organization.
The seeds of demise, however, were also sown in these early years when Korby began dating Turk’s daughter, Fallen Turk, whom Korby had first met at a public rally for more energy-efficient roller coasters. Everything went smoothly for these two Romeos for some years until, that fateful eve before they were to exchange nuptials, Korby learned from his private detective that Fallen Turk was in the witness protection program. Korby immediately canceled the plans and sent information about Fallen Turk to international media. The next morning, as mafiosos boiled Fallen Turk and about 200 poisonous snakes in a cauldron in the public square, Korby read Lewis Carroll and looked on with glee. Cf. Numbers 21:8–9 (suggesting alternative method of dealing with poisonous snakes); Diary of David Hormingham-Remy 711 (February 11, 1951) (describing the smell and appearance of a just-boiled ferret). After her death, he took advantage of an antiquated statute to gain custody of her body, which he laid on top of the compost heap in his yard until sanitation authorities finally had to come haul it off in the scoop of a backhoe.
These events, needless to say, severed the parties’ business relationship, but, fortunately for those on this Court’s payroll, also precipitated the event that most immediately gave birth to this dispute. The following year, Korby opened a stand at the Bible Games selling yogurt.(FN7) A few days after Korby’s stand opened, Turk sought an injunction to close Korby’s stand, relying on the doctrine of tortious like sales. See generally 1 N.S. 1 (1811) through 245 N.S. 1248 (1999) (detailing attempts to resolve disputes through legal system).
This ancient doctrine, which, with the rest of the common law and the recipes of Hammurabi’s third wife, was adopted by the New Salem Considerable Legislative Band in their first session, originally provided that “No manne shall sell an other manne’s goodes (including cobblered fruites).” 3 N.S. 42 (1820) (citing scribblings of Igor the Lawgiver, tablet 7) (hereinafter “Scribblings”). The doctrine arose in a case where the defendant had stolen the plaintiff’s puma-meat cobbler and had tried to sell it at market for gain. See Scribblings, tablet 12. The Solomonic tribunal required the defendant to return all leftover cobbler to the plaintiff, reasoning that, though stealing itself was not illegal, the sale of one man’s product by another person could cause a disparity in prices, which could force frugal consumers to search for the lowest price. See id.
In this nation-state, the doctrine was extended to a Bible Games context in the watershed case of This Court v. Mayor Christian ben-Gurion, 179 N.S. 850 (1976). Three years prior to the ben-Gurion decision, this Court had declared a city economic emergency, citing substantially declining tourism and thus sales tax revenues during the Bible Games season. See This Court v. Economic Conditions, 175 N.S. 212, 213 (1973). In declaring the emergency, this Court shrewdly observed that the reason for declining tourism was that all Bible Games vendors sold only one item—limes. See id. at 621. This Court ordered the public schools to teach young children lessons in basic economic principles, such as the problem of market saturation, and the notion of selling items that people are actually interested in. See id. at 1275.
However, this Court’s decision, rather than solving the problem, appeared to compound it, because the children did not tell their parents the economic truths they were learning, while at the same time dissemination of the published opinion notified merchants from outside the nation of the opportunity to peddle their wares at the Games. At the 1974, 1975, and 1976 Games, foreign merchants erected stands all along the roadsides into town, selling Bibles, soda, pornography, and even limes. Though tourism surged, revenues went to foreigners, who are beyond the reaches of all laws, including sales tax laws, of this jurisdiction. See N.S.S. 2:141 (1811). Mayor Christian ben-Gurion called upon this Court to declare another emergency, but this Court was on a work-related cruise in the South Pacific, so ben-Gurion declared the emergency himself.
Upon returning from the cruise, the majority of this Court, over a bitter dissent, wisely brought suit against ben-Gurion to determine which branch of government has the right to declare a state of emergency. After concluding that this Court is the only body to have such right, see 179 N.S. at 862, this Court then prescribed a second and final remedy to the Bible Games ailment by expanding the tortious like sales doctrine: “No man shall sell the same goods as another man at the Games.” See id. at 6,812. The intent of this declaration was to require city merchants to diversify sales at the Games. See id. at 6, 941.
Thus, in the instant suit, we are required to determine whether pudding is yogurt. To those not trained in law, this might appear an impossible task. Fortunately, however, the precedents of this Court provide a three-step analysis we follow in determining whether two items are the same: (1) examine plain meaning; (2) compare the items; (3) look to “market factors.” See, e.g., Lady of Shallot v. Bramalee, 221 N.S. 1, 400 (1995) (whether a breadbox is a musical instrument); Mr. and Mrs. Alaskan Shadows v. Federal Petroleum, 215 N.S. 691, 692 (1994) (whether a five-color printing press is gasoline); Ramses III v. American Dojo, 212 N.S. 401, 426 (1993) (whether oxygen is judo lessons). If application of any of these three tests reveals that two items are different, we will rule that they are different, regardless of the finding of the other two tests. See Crooked Shears v. El Presidente Chocolate and Flooring , 205 N.S. 511, 513 (1989) (whether pumpkin is liberty).
Plain Meaning Test
In embarking on the plain-meaning test, we first note that two different words are used to describe the two different items. This in itself suggests the items may be different. However, the words may be so similar in meaning to one another that they may truly be said to be one word, and thus, representing only one item. For example, is not a “clock” truly just a “watch” that happens to be humongous? To determine the exact meaning of a word, we would normally use a dictionary. However, we are not authorized to use a dictionary, because the Court Employee Manual provides that “each Court employee shall be furnished with a desk, a chair, and four square inches of space in the common deep-freeze,” but makes no mention of any dictionary. See Court Employee Manual at 2. Thus, we must declare this part of the analysis a failure and move to the next step, with full confidence that it will help resolve the ponderous issue before us.
Comparison of Items
To perform a comparison of yogurt against pudding, we actually dispatched a page to purchase one of each item for our inspection. Before us we placed a small tub of Cragerson’s boysenberry yogurt, and a giant cauldron of rice pudding, which our page made when he could find no pudding at Cragerson’s. The yogurt tasted like boysenberry, was cold, had boysenberries in it, and was delicious. The pudding tasted like rice and barbeque sauce, was warm, had rice and barbeque sauce in it, was barely palatable, and caused near-instantaneous loss of bowel control. From this comparison, we were tempted to declare that these two items are completely different. However, just before we were about to do so—the blow that would have forever delegitimized this institution—we poured what little was left of the yogurt—we had gobbled most of it up—into the cauldron of pudding. We used a giant wooden stick to mix the yogurt in with the pudding, but in a manner that preserved the integrity of the yogurt (rather than assimilating it with the pudding). After the yogurt had remained in the pudding for several hours, we removed the yogurt and tasted it. On this second tasting, it had the flavor of rice and barbeque sauce, was warm, had rice and barbeque sauce in it, was barely palatable, and caused near-instantaneous loss of bowl control. This finding left us uncertain whether the two items are different or the same and, we must admit, gave us some trepidation about whether it was worthwhile to continue our analysis.
Analysis of Market Factors
The central issue of the market factors analysis is whether the challenged item will attract a different customer base than the other item. Factors we have looked to under this inquiry include “(1) cost of the item, (2) cleanliness of the stand where the item is sold, (3) type of clientele seen hanging around the stand, (4) size of the item, and (5) logical, legal, and equitable considerations.” “We Love Owls” National Petroleum Corp. v. Cross of Gold Speech Society, 215 N.S. 174, 325 (1994) (whether petroleum jelly is a descendant of William Jennings Bryan).
The first and fourth factors are not useful, because yogurt and pudding can be placed in containers as small as a thimble or as large as Jupiter, and their prices would vary accordingly. Prices might also vary based on the rarity and appeal of the fruits, grains, sauces, or other flavorings added to the yogurt or pudding medium.
Looking to the second factor, we note that the trial record provides substantial evidence that the stands used by the parties had vastly different conditions of cleanliness. Turk’s yogurt stand “was so covered with flies that one wondered in all seriousness whether the whole stand wasn’t just a giant quantity of excrement.” Record at 572. Korby’s pudding stand, on the other hand, looked “like the ER [emergency room] after a bus wreck,” which we interpret to mean sterile. Id. at 573. This segues into the third factor, for if Korby’s pudding stand looked like an emergency room, it also necessarily would have had doctors, nurses, and other hospital personnel as clientele “hanging around.” By contrast, Turk, when asked on deposition whether he had been to the doctor recently, replied, “No, not unless you call 1952 ‘recently.'” Id. at 179. Thus, the second and third factors, by identifying different level of cleanliness and different types of clientele for the stands, suggest that yogurt and pudding are different. Because these factors are logical, legal, and equitable, the fifth factor must also necessarily indicate that yogurt and pudding are different.
We therefore hold that pudding is not yogurt, and rule with prejudice against the plaintiff.
ATTATURK, Kemmerer, J.
BEN-GURION, Christian, Mayor
KIM, Seven-Jack, J.
SELF-HOWITZER, Abram, J.
VALOREM, Ad, J.
MINOTAUR, Korbin, J., Concurring:
What a “treat” it has been to consider whether pudding is yogurt. Honestly, what a great opportunity this has been to be able to learn from my esteemed colleagues–and from the justices on this court. Seriously, though, these justices are the kind of people I look forward to hanging out with again–if I wind up in hell.
HORMINGHAM-REMY, KORMIGOR, J., Dissenting:
On the evening before he wrote the majority opinion, I placed in my brother’s fridge a small container labeled “yogurt” that actually contained pudding. When he ate his lunch the next day, he did not cry treason when he ate the pudding, which leads me to conclude that he did not perceive any difference between the substances. I would hold that the proof is in the pudding, and order Korby to close his stand.
JOINING IN THE DISSENT:
ARAM, Inc., J.
BEN-CHRISTIAN, Judah, J.
FISHERMAN-WHARVES, Gary, J.
SHEARS, Gilded, J.
WU, Commander Ryam, J.
2. Peach that is shaped to look like Walt Disney’s frozen head.
3. Cherries, corn, and salt, served in the unwashed bell of a tuba.
4. Raw dromedary slathered in mint gel toothpaste.
5. Crack cocaine.
6. Live scorpions. One historian has laid claim to the obvious—that the progression of pudding names tracks Turk’s spiritual downfall. See Prichard Turk, Road from Emmaus 23–799 (Little Brown 1997).
7. He also sold pillows, T-shirts, and mugs all emblazoned with doctored photographs that made it appear that Fallen Turk was in heaven eating yogurt out of a paper cup.