Presentation Of The Portrait Of The Honorable Talbot Smith

MAY 8, 1991

CHIEF JUSTICE CAVANAGH: Good afternoon ladies and gentlemen.

This special session of the Michigan Supreme Court has been convened this afternoon so that the Court might formally receive the portrait of the late Justice TALBOT SMITH, this Court’s seventy-second justice. On behalf of the Court I’d like to welcome the family, the colleagues, and friends of Justice SMITH this afternoon.

I look forward to the remembrances that are going to be presented here today, because I’m sure that they’ll provide us a perspective from some of those who personally knew and had the privilege of working with Justice SMITH.

I’m aware from having just perused the Michigan Reports of what a prolific opinion writer Justice SMITH was. In the six years that he sat on this Court, he was the author of some 263 opinions. As any Chief Justice who is concerned with opinion production, this man’s efforts would be Herculean. It would work out during his seventy-five months on the bench, to an average of three and one-half opinions each and every month. And a random sampling of those opinions, I think, gives the clear impression of a very fair-minded jurist, with a great sense of humor—a very dry sense of humor—and what emerges is a very direct and straight forward approach to legal issues. In rejecting the arguments of a party, for example, suggesting that parents in a particular case were negligent in protecting their child, he wrote:

All of this is straight from outer space. It is pure fantasy. It is unrelated to life on this earth. It requires no treatise on child development to tell us that a child 2 years 8 months of age is as inquisitive as a hornet and as slippery as an eel.1

I think it’s clear that he disdained technicalities and felt the modern pleader was entitled to a certain amount of flexibility or “elbow room,” as he said. He abhorred the whipsawing of parties on procedural grounds. And I think that that particular concern of his was reflected well in a rather subtle opening line of one of his dissents where he wrote:

[The plaintiff] just cannot get the notion out of his head that somehow, sometime, our Court will dispose of his case on the merits.2

And his succinctness in writing, I think, could be described as a forerunner of plain English. There was a boundary dispute that I ran across in which he succinctly started the facts off with:

This case involves a dispute between 2 neighbors. They live across the road from each other. One has blocked it off and the other objects.3

Most lawyers probably could have stretched that line into two paragraphs.

In that same case, the road in question was only thirty rods long. Justice SMITH wrote:

The road, short though it may be, is long enough to arouse both recrimination and resentment.4

I would like at this point to recognize the former President of the Michigan Bar Association, and former President of the American Bar Association, distinguished practitioner of our State Bar, and currently the President of the Michigan Supreme Court Historical Society, Wallace D. Riley. Mr. Riley?

 MR. WALLACE RILEY: Thank you Mister Chief Justice, Associate Justices.

I present myself to the Court today for this special session in two capacities.

First, I participate in the presentation ceremonies as President of the Michigan Supreme Court Historical Society, which has undertaken as one of several projects to foster the obtaining and presenting to the Court, the portraits of former justices not yet commissioned or presented. The society feels that it’s important that the likenesses of the justices of the state’s highest Court be recorded along with their published opinions, so that a record may be made of the judicial branch of government in Michigan history.

This undertaking and others are made possible by the membership dues and the contributions which the society receives from its two hundred charter members and benefactors.

A closely related project is the preparation and printing of a volume of the Michigan Reports of an index of these special sessions of the Court. Henceforth, someone interested in these proceedings of today could consult that index by date, event, participants, subject or honoree, and could locate the record in the published reports.

Second, I participate today as a former law clerk of TALBOT SMITH, not while he was a justice of this Court, but when he was in practice with Burke, Burke and Smith, a law firm in the old Ann Arbor Trust Building in Ann Arbor. In March of 1952, I had finished the University of Michigan Law School, was waiting to take the April bar exam, and was still working on my M.B.A. degree at the Michigan Business School. Scholarship had run out, and I needed a job. Talbot interviewed me and gave me a job in his law office. I was eager to learn, and Talbot was willing to teach.

Talbot had the infinite patience of a great teacher. He had the forgiveness of a minister. He had the sternness of a naval officer. And he had the inspiration of a saint. I later learned that he was a naval officer, that he was a law teacher, and he was almost a minister, and by now he’s probably a saint.

In the old days before formal law school training, as you know, one “read” law to become a lawyer. Today young lawyers all have mentors. With Talbot, in a way I had both.

And what a happy way it was for a young man to begin a legal career, in the giant shadow of this model man who was an example of professionalism and of civility. I was a most lucky fellow to get a start with such a good man.

That phrase, “a good man,” could really have been invented for TALBOT SMITH.

I attended the portrait unveilings in the Federal Building the other day of Judge Wade McCree, and of Judge Phillip Pratt. And at that ceremony, United States District Court Chief Judge Julian Cook presided. He did a recitation entitled “Citation For a Good Man,” The Spoken Word by Richard Evans. I want you to listen to it, it went like this:

Institutions confer an infinite variety of honors, titles, degrees, and awards of one kind or another. Almost every organization of any description…issues its credentials, its recognitions, its citations, to which…much publicity is often given, and for which there is much demand and much acclaim to persons who, in their judgment, are deserving of recognition. From the highest honors conferred by the most exclusive of learned societies, from the most sought-after titles, to the comparatively minor certificates of merit and commendation—all are in one form or another—recognition from one…to another of some degree of excellence, or supposed excellence, in some field of thought or action. But amid all this variety and multiplicity of citations and honors, of awards and medals, or fame and notoriety, some genuine and some spurious, there is one achievement of highest distinction, seldom mentioned, and yet, happily, not so rare. It is a distinction that receives little of the world’s publicity…, [a]nd for which perhaps no medal was ever made, no citation ever written, no degree ever conferred, but which enables him who has it to take from life its greatest enjoyment, and gives him the approval of his own conscience, the confidence of children, the respect of neighbors, and the trust of friends. In short, it is the high distinction of having earned the right to be called “a good man.”

It is he who is the steadying influence of neighborhoods and communities… [I]t is he who makes life worthwhile, and the world worth saving. And even though he may never see his name in lights or in print for merely being “a good man,” yet he is the reason that people can live in decency. He is the factor that makes property safe and virtue possible. It is he who has made our civilization as good as it is, despite all of its weaknesses. To the youth of our generation, and to all men and women everywhere who desire peace in their hearts, joy in living, and the assurance of things to come, we give this reminder: Greater than brilliance, greater than cleverness, greater than “knowing all the answers and all of the angles,” more to be sought after than glamour or wealth, than title or acclaim, is the right to be called “a good man” or “a good woman.” It can truly be said—without fear or contest—that Talbot Smith was truly— “a good man”!

Thank you.

CHIEF JUSTICE CAVANAGH: Thank you very much Mr. Riley.

The Court now recognizes a former justice of this Court, and a former colleague of Justice TALBOT SMITH, the Honorable Justice THEODORE SOURIS. I’d also ask if you might Mr. Souris, identify for the record anyone you wish to recognize who is present in the courtroom.

 THE HONORABLE THEODORE SOURIS: It’s my pleasure to do so Mister Chief Justice, Associate Justices of the Court.

In the courtroom today is TALBOT MICHAEL SMITH, Justice SMITH’S son, and his wife Sandy. Also in the courtroom are the parents of the painter of the portrait that you will be receiving today, Mr. and Mrs. Clauser. And they have with them three grandchildren, and a daughter, and a son. Also, I’d like to introduce to the Court Kay Schloff who was Justice SMITH’S law clerk, and his secretary Thelma Steele and her husband and family. And in the back of the courtroom sits a distinguished gentleman, Gus Harrison. There are not many of us left in this state who will remember that Talbot served by appointment of Governor Williams, as the chairman of the Corrections Commission after the Jackson Prison riots, and in that capacity became the great close friend and colleague of Gus Harrison.

When TALBOT SMITH elected to take senior status as a federal district judge, he wrote his colleagues a note which ended with these words:

Thus closes a chapter but not yet, not quite yet, the book.

Talbot’s biography, if it is ever written, would fill many volumes. His fourteen-year naval career and lifetime friendships made at Annapolis and aboard ships would fascinate many of his later friends who knew him only as a lawyer or a judge. That part of his life would fill at least one volume.

His life as a lawyer in Detroit and Ann Arbor, and as a trial lawyer defending the Office of Price Administration in the early 1940s against constitutional challenges in federal courts throughout the country, would fill another volume, perhaps two.

If I were to write Talbot’s biography, I would treat his Court years from 1955 through 1978, as an integral part, an extension, a continuation, of his teaching at the law school in Missouri, and briefly after the war at Berkeley. The Court years alone would require several volumes, with absolute certainty.

Like the opinions of Justice THOMAS M. COOLEY, and TALBOT SMITH’S opinions are, and in my judgment will continue to be, viewed by legal scholars as brilliant expositions of what the law is, and on those now increasingly limited occasions when the common law is the subject of inquiry, of what the law should be. It is confounding to me that, notwithstanding Talbot’s widespread fame among scholars and jurists throughout the land, and I do not exaggerate, he was not accorded similar recognition in Michigan. Perhaps it’s because we Americans need to view our heroes from a distance; perhaps proximity diffuses the image. My purpose today is simply to share with you some observations about Talbot’s work on this Court that I believe distinguished him from his contemporaries, his colleagues.

Chief Justice Walter Schaefer of the Supreme Court of Illinois, and Chief Justice Roger Traynor of the Supreme Court of California were two of the most universally acclaimed appellate court judges in the country during the last half of this century. Neither, to my knowledge, had ever met Talbot after he had become a judge, but both regarded him as preeminent for his work on this Court. And I speak now of my personal experience with those judges. They were particularly impressed by his opinions comparing the concepts of duty and proximate cause in tort actions, establishing the relationship between an action against a product’s manufacturer for negligence and an action for breach of an implied warranty, reestablishing the constitutionally proper roles of judges and jurors in resolving fact issues, reconciling statutory ambiguities in legislation concerning the conflicting interests of employers and workers injured in the course of their employment, and, of course, for his seminal work on the most important issue of this century, legislative reapportionment, in his dissent in the Scholle case.5

Dean Roscoe Pound agreed with Justice Schaefer’s and Justice Traynor’s assessment of Justice TALBOT SMITH. As some of you know, in 1962 Dean Pound wrote our Senator Philip Hart about Talbot’s qualifications for appointment to the federal bench, saying this:

[H]is work stands along with that of Judges Traynor. . . and Schaefer. I… have no hesitancy in saying that the work of these three judges has stood out along with that of Mr. Justice Cardozo in the Supreme Court of the United States, and of Judge Learned Hand in the United States Court of Appeals for the Second Circuit in the progress of American law.

Justice TALBOT SMITH’S six-year tenure on this Court was, as I have described before at the presentation of Justice GEORGE EDWARDS’ portrait, “more like a judicial crusade than the contemplative ministry of justice.”6 During the several decades before Talbot’s appointment to the Court in 1955, the work of the Court was characterized by traditional, conventional, uninspired, one-man opinions written by the justices to whom the cases were assigned before argument. Then in 1955, Justice TALBOT SMITH’S voice was heard in dissent, advocating substantive and procedural changes in the way justice was done in this state. Soon, he was joined by the late Justice EUGENE BLACK, and by Justice GEORGE EDWARDS. With the arrival of JOHN VOELKER, and THOMAS M. KAVANAGH, the dissenting voices became the Court’s majority. The struggle from 1955 to 1960, however, had taken its toll.

There had been, indeed, irreconcilable differences reflected on the Court in that period. Professor John Dawson, on the occasion of the 1982 presentation of Talbot’s portrait to the federal district court on which he sat at his death noted that “intense conflict of views…was soon to emerge,” that while Talbot’s dissents “told the majority, politely, that its basic thinking was askew,” when Justice BLACK was added to the Court “the language used began to be impolite.”7

I believe that the sharp dissension, the force of the language used, sometimes even impolitely as Professor Dawson observed, diverted attention from the judicial issues that finally were being addressed in a manner worthy of a proud Twentieth Century Court. The local public’s, and even the local legal profession’s titillation by the Court’s internal controversies revealed in local newspaper articles about the Court’s contentious opinions disguised the inherent quality of what was happening in Michigan. The Schaefers and Traynors and Pounds of this world, however, unhindered by the excited utterances of our home-grown popular news commentators, were able to assess the work of TALBOT SMITH objectively and, of course, favorably.

What were the issues of Talbot’s day? Well, I reviewed them back in 1986 at Justice EDWARDS’ portrait presentation, but I will merely list them today. Included were relaxation of the Court’s strict adherence to precedent, compensability under our workers’ compensation law of heart attacks and emotional injuries, entitlement to unemployment compensation when work is stopped by a strike at other than the applicant’s place of employment, charitable and municipal immunity from tort liability, shifting the cost of injury by negligently manufactured goods to the product, rights of criminal defendants to appeal and to the assistance of trial and appellate counsel if indigent, and, of course, legislative reapportionment. Those were the great substantive issues of Talbot’s day.

Talbot’s command of language and the intensity of his convictions, particularly when he perceived moral principles were involved, made him an extremely effective advocate, a formidable opponent. His opinions reveal the force of his beliefs, the power of their articulation and his compassion for the less fortunate among us for whom he so often was the spokesman.

I include in my remarks a selection of passages from one of Justice TALBOT SMITH’S speeches and from his opinions, which in my view, reveal the man and the judge he was.

In 1956, in a speech in Ann Arbor, Talbot expressed his philosophy of the dissenter’s role this way:

I feel it is a superficial and trivial comment to say that dissents will destroy confidence in the courts, because confidence comes not from hiding cleavages in thought, and principle, but in exposing and exploring them. People lack confidence only in what they don’t understand.

I find from all of this more than a suggestion, I find from it a duty—a duty to speak, to speak, if need be, by way of dissent. The voice may be the voice of one Justice standing alone. If so, it is all the more important that he speak, for it is important to our people to know that the individual, standing alone, still counts. What he believes counts, though he numbers but one. What he says counts, whether he is right or wrong. Once we stifle the voice of the individual in the shout of the pack, we have stifled a part of our freedom, merged ourselves, as well as our voices, in the mob. Let those who will, counsel caution and silence, the need for certainty and stability. There can be no silence while wrongs done our people cry for relief. And as for stability, the only real stability is that of the grave.

His dissents, and he wrote many in the early years, were scholarly expositions tracing the historical development of a legal principal or doctrine and analyzing its proper application, as he viewed it, to the facts before the Court. One of Talbot’s great strengths was his capacity to consider, particularly in his dissenting opinions, the future effect of the Court’s rulings on litigants and circumstances not yet before the Court.

I have emphasized today, as have others before me, TALBOT SMITH’S erudition—in common parlance, his skill—at turning a phrase. But, unlike most popular wordsmiths, and I do intend the pun, Talbot’s writing reveals his sensitivity to the needs of the weak and oppressed among us. His opinions reflect his view of the role of the judiciary in curbing, as he put it in his famous Consumers Power case8, the

[e]xcesses of governmental power, abuses of governmental authority…. It is precisely in this situation, where the citizen stands before us opposed by all the panoply of power, that we are most acutely conscious of our historic function.

Now listen, please, while I illustrate for you, again in Talbot’s own words, his response to that acutely felt consciousness of the Court’s historic function to protect those who cannot protect themselves from oppression from whatever superior force.

In Elliott v A J Smith Contracting Co, Inc9, the case from which Chief Justice CAVANAGH quoted a moment ago, the issue was the propriety of a jury argument in a wrongful death action in which a child was killed. Talbot, writing, said:

With respect to the portions complained of, counsel representing the estate of the boy was faced with a difficult and delicate task. He was suing for money damages. What, in dollars, was the value of the life of this boy? Counsel’s opening words, in the paragraphs complained of, spoke of his reluctance to discuss the value of life in these terms. “Now,” he said, “I must needs come to the question of money.” His approach to the value of the life of a child was couched entirely in Biblical terms. In this source he did not lack authority, and he did not hesitate to use it. He could, of course, have argued strictly in monetary, in budgetary, terms. A child eats so much per day. He gets sick and must be treated and nursed. He goes to school and must have books. Upon reflection, however, are not all those expense items? Is there, in truth, any money damage suffered?

The question we ask is cold and callous, but it must be asked for it must be answered. Is there a better source for answer than the one counsel used?

The eloquence is as moving as anything I have read.

In Montgomery v Stephan10, he concluded that in today’s society a wife was entitled to recover damages for her loss of consortium due to a negligently inflicted injury to her husband, just as the husband would be if his wife were so injured.

[I]t is urged [TALBOT SMITH wrote,] that the precedents tie us. A wife, said the ancient precedents, could not sue because she was a legal nonentity. And, even if she could, she had no cause of action to assert because a servant has no “right” to the services of her master. But none of this is true today, either as a matter of fact or as a matter of law….Legally, today the wife stands on a par with her husband. Factually, as we well know, her position is no less than that of an equal partner [in the business of life].

In Wycko v Gnodtke11, the issue was the value of the life of a child. He said:

The child is a person and is not to be read out of the [wrongful death] act by judicial acquiescence in the chief baron’s theory that his life has no pecuniary value save as that of a wage-earner. The bloodless bookkeeping imposed upon our juries by the savage exploitations of the last century must no longer be perpetuated by our courts.

Then, in Elbert12, the case Chief Justice CAVANAGH quoted, another child injury case, Talbot shared with us his perception of children: He said, “every time a ball rolls into the street we are to presume that it is attached to a child, who will follow it….”

In Lenz13, another case Chief Justice CAVANAGH referred to, a discharged city employee had been denied a hearing to which he had been entitled by the mayor. The defense was technical: certiorari was the wrong remedy, mandamus was no longer available, the claim for damages was stale. This is how Talbot treated the staleness argument:

Stale it may be to us, but a wrong that cannot even be heard, to say nothing of being righted, has a way of burning on and on, for days without end, of outliving even its perpetrators. I say to hear Lenz out. I want to know whether an official charged by law with the duty of conducting a full hearing can walk out of the hearing before the defendant has been heard, slam the door, and make it stick.

What a joy it was to see language used like that in a judicial opinion.

Finally, in his great dissent in Scholle v Secretary of State14, Justice TALBOT SMITH expressed for all Michigan citizens a view of equality in its constitutional sense which the United States Supreme Court adopted for all American citizens soon thereafter:

Our people have a right, inalienable and undisputed, to equality of representation. The right is not to be diluted or diverted. It will succumb neither to the chicanery of the crafty, nor to the apathy of those of our constitutional officers whose failure to act in accordance with its clear mandate accomplishes the “silent gerrymander.” Nor, in deed, is the citizens’ right vulnerable to the massive power of a majority which disenfranchises through nothing less than amendment of our Constitution itself….

It is a somber and frightening thing to take from the people in a democracy their right to an equal vote. We rob them at one stroke of their sword and their shield. We render them powerless. We invite their exploitation. We insure the perpetuations in the body politic of the most malignant growths. We breed cynicism and contempt for the processes of government. The sorry catalog of abuses of minority rule, here shown in small part, amply demonstrates that government by only part of the people is both pernicious and destructive. The yoke must be responsive to the needs of those on whose neck it rests.

I shall always remember that gentle man, who, on the departure from our courtroom in the Capitol Building of a kindergarten class, was the only member of the Court who waved back as the youngsters who were waving goodbye to all eight of us left.

Nor shall I forget Justice TALBOT SMITH’S sensitive response when a distinguished and skilled eighty-five-year old lawyer appeared before us in propria persona to defend his actions as a trustee. Age had taken its toll, and this grand old lawyer was so nervous as he approached the bench that his hands shook and he was unable to speak. After a brief moment of embarrassed silence, Talbot leaned forward and said, “Mr. Long, it is a profound pleasure to welcome you once again to our chamber. It has been much too long since you last graced the Court with your presence.” The old warrior’s face became composed, he smiled, thanked the Court for its patience and then proceeded to argue his case as the skilled lawyer he was.

TALBOT SMITH was very much more to me and to my family than merely one of my judicial colleagues. He became quickly my mentor and my friend whose influence upon me will last my lifetime. I hope I have conveyed to those of you who did not have the extraordinary experience of serving with him the essence of the man we honor today. His influence on the nation’s law and on future generations will be as great as any jurist in our state’s history.
Thus closes the last chapter and now ends the book.

CHIEF JUSTICE CAVANAGH: Thank you very much Justice SOURIS for your eloquent remarks.

I now ask our Court Officer, Mr. Wayne Clinton, to unveil the portrait of Justice SMITH.

[At which time the portrait was unveiled.]

A beautiful portrait. Let me conclude by saying that the case Justice SOURIS referred to, Montgomery v Stephan, caught my attention as well. It showed, as you indicated, his lack of patience for formalism and procedural technicalities and, certainly, outdated precedent:

The precedents of the older cases are not valid precedents. They are violative of women’s statutory rights and constitutional safeguards. They are out of harmony with the conditions of modern society. They do violence to our convictions and our principles. We reject their applicability. The reasons for the old rule no longer obtaining, the rule falls with it. The obstacles to the wife’s action were judge-invented and they are herewith judge-destroyed.15

This painting is hereby formally accepted by this Court, and certainly will serve as a reminder to visitors and those of us who sit on this bench of the wisdom and very significant contribution of Justice TALBOT SMITH.

Thank each of you, Mr. Riley and Justice SOURIS in particular for your participation in today’s presentation. With that this Court stands adjourned.

 1. Elbert v Saginaw, 363 Mich 463, 480; 109 NW2d 879 (1961).
 2. Lenz v Detroit, 361 Mich 166, 173; 105 NW2d 156 (1960).
 3. Dryfoos v Maple Grove Twp, 363 Mich 252, 253; 109 NW2d 811 (1961).
 4. Id.
 5. Scholle v Secretary of State, 360 Mich 1, 42; 104 NW2d 63 (1960).
 6. 425 Mich lxxxii (1986).
 7. 544 F2d lxiv-lxv.
 8. Consumers Power Co v Muskegon Co, 346 Mich 243, 260; 78 NW2d 223 (1956).
 9. 358 Mich 398, 418-419; 100 NW2d 257 (1960).
 10. 359 Mich 33, 49; 101 NW2d 227 (1960).
 11. 361 Mich 331, 342; 105 NW2d 118 (1960).
 12. Supra at 479.
 13. Supra at 184.
 14. Supra at 51, 82-83.
 15. Id. at 49.