법관과 시인

판례법국가의 법원판결문은 대륙법 국가하고는 달리, 대개 장문으로 이루어진다.  그러한 장문의 판결문 법문화 가운데 매우 간결하여 실제판례인지 의심이 들 정도인 겨우 2 페이지에 불과한 ‘시’로 쓰여진 판례 Fisher v. Lowe 122 Mich.App. 418, 333 N.W.2d 67 (1983) 하나를 소개한다.  2 페이지에 불과한 매우 짧은 실제 판례 중에서 핵심 몇 구절을 카피해 온다.  (아래에 첨부한 정식 판례집 전체 참조하기 바란다).

We thought that we would never see

A suit to compensate a tree,

A suit whose claim in court is pressed

Upon a mangled tree’s behest;

A tree whose battered trunk was pressed

Against a Chevy’s crumpled crest;

A tree that faces each new day

With b ark and limb in disarray;

A tree that may forever bear

A lasting need for tender care.

Flora lovers through we three,

We must uphold the court’s decree.

Affirmed.

주: affirmed. 하급법원 판결을 항소심에서도 인정함 (즉 항소 각하 결정의 판결임).  We 는 법원을 말함.  Chevy는 대형 화물 자동차.

위 실제 사례는 대형화물자동차가 정원의 아름다운 나무를 들이받은 것에 대한 손해배상 (손실배상이 아니기에 법률적 문제가 되는 사건임) 청구 소송에 관한 것이다.  시적으로 즉시 이해가 되는지 사건 판결문 전체를 읽어 보길 바란다.  솔로몬 재판이나 셰익스피어 희곡에서처럼 ‘시적 정의’ 가 현실에서 일어난다고는 보기 어렵지만 이렇게 실제 판결문에서 ‘시적 표현’을 하는 예외가 주는 신선함을 직접 몸으로 느낄 수 있으리라.

대체로 부드러운 (결론을 저자가 아닌 독자에게 위임하기에) 문학과 딱딱한(결론을 저자가 강제하기에) 법률이 연결되기 힘들다고 보겠지만 판결문을 하나의 시로 써낼 수 있는 역량은 결코 쉽지 않을 것이다.  하지만 독자들은 판결문 속에서 부드러운 시적 묘미를 발견하는 기쁨을 얻을 수 있다.  

항소법원 정식 판례에 실린 판결문 전체를 다음과 가져 온다. (Nexis 파일 참조)

A wayward Chevy struck a tree

Whose owner sued defendants three.

He sued car's owner, driver too,

And insurer for what was due

For his oak tree that now may bear

A lasting need for tender care.

 

The Oakland County Circuit Court,

John N. O'Brien, J., set forth

The judgment that defendants sought

And quickly an appeal was brought.

 

Court of Appeals, J.H. Gillis, J.,

Gave thought and then had this to say:

1) There is no liability

Since No-Fault grants immunity;

2) No jurisdiction can be found

Where process service is unsound;

And thus the judgment, as it's termed,

Is due to be, and is,

 

Affirmed.

 

Defendant's Chevy struck a tree-

There was no liability;

The No-Fault Act comes into play

As owner and the driver say;

 

Barred by the Act's immunity,

No suit in tort will aid the tree;

Although the oak's in disarray,

No court can make defendants pay,

M.C.L.A. § 500.3135.

 

No jurisdiction could be found

Where process service was unsound;

In personam jurisdiction

Was not even legal fiction

Where plaintiff failed to well comply

With rules of court that did apply.

GCR 1963, 105.4.

 

We thought that we would never see

A suit to compensate a tree.

A suit whose claim in tort is prest

Upon a mangled tree's behest;

A tree whose battered trunk was prest

Against a Chevy's crumpled crest;

A tree that faces each new day

With bark and limb in disarray;

A tree that may forever bear

A lasting need for tender care.

Flora lovers though we three,

We must uphold the court's decree.

 

Affirmed.FN1

 

FN1. Plaintiff commenced this action in tort against defendants Lowe and Moffet for damage to his “beautiful oak tree” caused when defendant Lowe struck it while operating defendant Moffet's automobile. The trial court granted summary judgment in favor of defendants pursuant to GCR 1963, 117.2(1). In addition, the trial court denied plaintiff's request to enter a default judgment against the insurer of the automobile, defendant State Farm Mutual Automobile Insurance Company. Plaintiff appeals as of right.The trial court did not err in granting summary judgment in favor of defendants Lowe and Moffet. Defendants were immune from tort liability for damage to the tree pursuant to § 3135 of the no-fault insurance act. M.C.L. § 500.3135; M.S.A. § 24.13135.

 

The trial court did not err in refusing to enter a default judgment against State Farm. Since it is undisputed that plaintiff did not serve process upon State Farm in accordance with the court rules, the court did not obtain personal jurisdiction over the insurer. GCR 1963, 105.4.

  

Fisher v. Lowe 122 Mich.App. 418, 333 N.W.2d 67 Mich.App.,1983. January 10, 1983 (Approx. 1 page) 122 Mich.App. 418, 333 N.W.2d 67

Court of Appeals of Michigan.

William L. FISHER, Plaintiff-Appellant, v. Karen LOWE, Larry Moffet and State Farm Mutual Automobile Insurance Company, Defendants-Appellees.

 

Docket No. 60732.

Submitted Nov. 3, 1982.

Decided Jan. 10, 1983.

Released for Publications May 6, 1983.

 

A wayward Chevy struck a tree

Whose owner sued defendants three.

He sued car's owner, driver too,

And insurer for what was due

For his oak tree that now may bear

A lasting need for tender care.

 

The Oakland County Circuit Court,

John N. O'Brien, J., set forth

The judgment that defendants sought

And quickly an appeal was brought.

 

Court of Appeals, J.H. Gillis, J.,

Gave thought and then had this to say:

1) There is no liability

Since No-Fault grants immunity;

2) No jurisdiction can be found

Where process service is unsound;

And thus the judgment, as it's termed,

Is due to be, and is,

 

 Affirmed.

 West Headnotes

[1]  KeyCite Citing References for this Headnote

48A Automobiles

   48AV Injuries from Operation, or Use of Highway

     48AV(D) Effect of No Fault Statutes

       48Ak251.13 k. Vehicles, Persons or Occurrences Within Restrictions. Most Cited Cases

 

Defendant's Chevy struck a tree-

There was no liability;

The No-Fault Act comes into play

As owner and the driver say;

 

Barred by the Act's immunity,

No suit in tort will aid the tree;

Although the oak's in disarray,

No court can make defendants pay,

M.C.L.A. § 500.3135.

 

[2]  KeyCite Citing References for this Headnote

313 Process

   313I Nature, Issuance, Requisites, and Validity

     313k3 Necessity and Use in Judicial Proceedings

       313k4 k. In General. Most Cited Cases

 

No jurisdiction could be found

Where process service was unsound;

In personam jurisdiction

Was not even legal fiction

Where plaintiff failed to well comply

With rules of court that did apply.

GCR 1963, 105.4.

 

*418 **67 William L. Fisher, Troy, in pro. per.

 

Romain, Donofrio & Kuck, P.C. by Ernst W. Kuck, Southfield, for defendants-appellees.

Before BRONSON, P.J., and V.J. BRENNAN and J.H. GILLIS, JJ.

J.H. GILLIS, Judge.

 

*419 [1] [2] 
We thought that we would never see

A suit to compensate a tree.

A suit whose claim in tort is prest

Upon a mangled tree's behest;

A tree whose battered trunk was prest

Against a Chevy's crumpled crest;

A tree that faces each new day

With bark and limb in disarray;

A tree that may forever bear

A lasting need for tender care.

Flora lovers though we three,

We must uphold the court's decree.

 

Affirmed.FN1

 

FN1. Plaintiff commenced this action in tort against defendants Lowe and Moffet for damage to his “beautiful oak tree” caused when defendant Lowe struck it while operating defendant Moffet's automobile. The trial court granted summary judgment in favor of defendants pursuant to GCR 1963, 117.2(1). In addition, the trial court denied plaintiff's request to enter a default judgment against the insurer of the automobile, defendant State Farm Mutual Automobile Insurance Company. Plaintiff appeals as of right.The trial court did not err in granting summary judgment in favor of defendants Lowe and Moffet. Defendants were immune from tort liability for damage to the tree pursuant to § 3135 of the no-fault insurance act. M.C.L. § 500.3135; M.S.A. § 24.13135.

 

The trial court did not err in refusing to enter a default judgment against State Farm. Since it is undisputed that plaintiff did not serve process upon State Farm in accordance with the court rules, the court did not obtain personal jurisdiction over the insurer. GCR 1963, 105.4.

 

Mich.App.,1983.

Fisher v. Lowe 122 Mich.App. 418, 333 N.W.2d 67 (1983)