Chapter 14: Liability
After six months of keeping her distance from the Ewart home, Mary is confronted with a request from her father to assist Jerusha in a remarkable development for the temperance crusade.
Hesitating, Mary closed her eyes; hand paused on the doorknob of the Ewart home as the unseasonably warm sun roasted her back. About to face another astonishing demand from her father, she reminded herself to stay calm and honor his wishes. She had kept her distance as much as possible since the outburst over dinner six months before but now Jerusha seemed to be extending a welcoming hand that she didn’t quite trust. Exhaling, she nudged the door open, stepping into the front hallway.
“Is that you, Mary?” came Jerusha’s voice from the dining room.
“Yes, it’s me.”
“I had an early start.”
“Indeed,” said Mary as she rounded the corner into the dining room. The area was dark with the curtains drawn against the sun. Jerusha was surrounded by stacks of papers, pen in hand as she wrote hastily. Across the table sat Ellie and Mrs. Buckley, lazily fanning themselves against the early morning heat. Mary had not been in the dining room since the confrontation with Jerusha. She gripped her satchel as recollections of that bitter argument came back to her.
“Good morning, Mary,” said Mrs. Buckley.
“Lovely to see you,” said Ellie with her usual charismatic smile.
“Good morning, ladies.” Mary set down her bonnet and satchel, while she stood observing Jerusha from the end of the table. Though not unwelcome, she wasn’t prepared for the company of the other women. Having them as a buffer to Jerusha was likely for the best. Perhaps Jerusha felt the same.
“Well? Sit down,” Jerusha said, gesturing to the chair next to her. “I’ll need you to review this latest draft. I trust you will provide better guidance than the men in your father’s firm. I’m nearly finished.”
“Yes, please join us.” Ellie kindly gestured to the seat across from her. “We thought we could be of support to Jerusha, but I’m afraid we’re only asking questions we don’t have answers to.”
Mary was mostly charmed by Ellie. There was something about the woman that drew people together with a smile, unlike Jerusha, who never met a social distinction she wouldn’t sharpen. Still, she wondered if Ellie understood how much her father’s wealth smoothed her path.
“We are as useful as a fifth wheel,” snorted Mrs. Buckley.
“That cannot be true,” said Mary as she took her seat.
“Well then, perhaps you can explain the law underpinning Mrs. Zimmerman’s lawsuit?” Mrs. Buckley might have a sharp tongue, but Mary trusted her judgment. She’d endured losses that Mary knew intimately—husband, sons—yet somehow remained steady.
“You mean the Adair Law?” asked Mary.
“That’s the one,” said Ellie.
“I’ll try my best.”
“Well, please keep it simple for these simpletons,” replied Mrs. Buckley.
Both women laughed as Jerusha stopped writing, tossing them an annoyed glance. “Quietly, please.”
“Please, keep writing. You are fine,” said Mrs. Buckley, waving her off.
Sitting upright, Mary leaned in, conscious that she was the only trained attorney at the table. “The Adair Law is meant to make saloon owners responsible for the harm caused by the men they serve, especially if the harm comes after a man has left their establishment drunk. If a saloonkeeper, in this case Mr. Henning, sells alcohol to Mr. Zimmerman, who is already obviously intoxicated, and Mr. Zimmerman goes on to hurt himself or someone else, the law allows families to hold the saloon owner accountable.”
“That much is clear to us. The infant baby and Mr. Zimmerman…” Ellie placed a hand to her chest.
“We can’t shy away from the facts, Ellie. They both died in the fire.” Direct and to the point, Mrs. Buckley leaned over to pat Ellie’s arm.
“Yes, but we don’t need to rehash that part of the story,” replied Ellie. “Why do Mrs. Zimmerman’s attorneys need to prove the saloonkeeper knew he was drunk? Wasn’t it obvious?”
“That is a very good question. It’s not enough that Mr. Zimmerman was drunk when he got home. They must prove that when the saloonkeeper served him his last drinks, any reasonable person could see he was already intoxicated, and that the keeper served him anyway.”
“By that measure, all the saloonkeepers are guilty,” said Mrs. Buckley.
“Precisely,” chimed in Jerusha as she continued to write.
“Well, ladies, still the burden of proof lies with Mrs. Zimmerman.”
“Is that what you’re drafting then, Jerusha?” asked Ellie.
“Not exactly…” Mary cautiously turned to Jerusha to see how she might respond.
“Permit me to finish writing and I will share with you.” Jerusha held a palm up without taking her eyes off the page as she continued to write.
Do tell, Jerusha, thought Mary as she clenched her jaw, recalling the eleventh-hour request from her father when they had spoken the morning before.
“Are you following the Zimmerman trial?” he had asked.
She had stopped by to provide her draft briefing on a property-related dispute. The trial had been intensely covered by the press all week.
“I am. The town seems to hang on every detail in the papers.”
“Yes, a great deal is at stake.”
“You mean holding a saloon owner liable for Mr. Zimmerman’s actions could turn the tide in the crusade.”
“Precisely, which is why I need your assistance.”
She paused, setting her brief aside to give her full attention. Despite Jerusha’s ongoing crusade, she maintained this was the type of action that was preferable to storming saloons in the full public eye. “Go on.”
Thomas hesitated for a moment. “Mr. Franklin from my firm, who is representing Mrs. Zimmerman… asked if Jerusha could provide the closing arguments to the jury.” The words rushed out of him.
She froze in her seat, not breaking eye contact. “Why Jerusha?”
“Well, they thought her efforts with the crusade suggested she might have the greatest impact appealing to the hearts and minds of the jury.”
Shaking her head, Mary stifled a laugh. “Father, I don’t need to remind you she is not an attorney. She does not have the legal mind for this request.”
“Correct, and that is rather the point.”
“I beg your pardon?”
He placed his hands together before him; a gesture she knew was intended to make a point. “The thinking was that a woman who spoke as a mother-figure for victims of drink could render the legal discourse in plainer terms and stir a jury’s sympathy more effectively than an attorney.”
“But she would have to be recognized by the court as counsel.”
“Not exactly. She’ll function as an interested party and friend of the court to complement the more technical aspects of Mrs. Zimmerman’s attorneys.”
Mary’s thoughts scrambled to understand Jerusha in court delivering arguments. She did not attend college—she never worked with her father or anyone for that matter—yet here she was, getting invited to one of the most infamous civil trials in the history of Marietta.
“I’m sorry, but she is not qualified.”
“Of course not. She will simply be asked to make the opening plea to the jury by reading the Adair statute out loud and then deliver an argument that will frame the saloon keeper’s liability in moral terms.”
Mary crossed her arms, planting her feet on the floor. “Am I to understand that because of her outspokenness, indeed because of her reckless behavior in the past six months, we now believe she is the best advocate for Mrs. Zimmerman?”
“Lower your voice, please.” He was calm as he looked over her shoulders to see if anyone was in the hallway.
“Really, this is quite incredible.”
“Listen, I understand your concern.”
“Do you indeed?”
“Allow me a moment to explain.”
She looked away from him, out his office window to the street where autumn leaves were beginning to fall, even as the relentless summer heat lingered. She had never imagined that, after all the work he had asked of her—and despite her longing to practice law under her own name—she would end up assisting Jerusha, preparing her to stand before a jury and deliver a closing argument.
“You know her tactics were not something I imagined or supported initially.”
Mary shrugged. “Yet here we are.”
“Yes, because they are getting results, and the church members seem to support the women. Her work in saloons and speaking to crowds on the street proved she’s persuasive, which convinced our law firm she could tip the balance in the suit.”
“At what cost though?”
“What do you mean?”
“The barn? Our safety? Our reputation?”
He sat back in his chair. “We cannot be sure the barn is related to the temperance work. Nothing has happened since then despite the ongoing crusade. It’s been six months.”
“Yet the officers reported the fire was likely the work of arsonists. If you’re reluctant to voice the question, then I will: why else would arsonists be attacking us?” Throughout the summer, Mary was amazed at how oblivious he seemed to the facts.
“If it was arson, and not George leaving the lantern unattended, then it was likely a random act and nothing else.”
“I pray you are right because if not, this trial with Jerusha at the helm will only lead to more chaos for this family. The outcomes for the liquor interest are sure to be negative, and we cannot be certain how they will react. Or should I say retaliate?”
Was she more concerned about the family or her own ego? She suspected he saw her protests about Jerusha as veiled complaints about her inability to practice law herself—not that he would ever entertain such a discussion. Her mind was clouded, leaving her uncertain which scenario weighed heavier: the injustice of her own position, or the family’s welfare. Truthfully, it was both. And her envy of Jerusha, who was being handed this opportunity, was just the finishing touch.
“Why are you asking me to assist her? You know we have hardly spoken since the fire. Obviously, you are better suited.”
He grimaced as he took off his glasses, wiping his brow with a handkerchief. “I cannot help her.”
“That’s absurd. Of course you can. You should write the closing arguments yourself. Or Mr. Franklin.”
“She refused me. She asked for your help.”
“My help?”
“Yes, you. She said only you could assist her.”
Mary’s breath hitched. “Why me?”
“I’m uncertain. Despite these past few months, I suppose she trusts your knowledge and experience.”
Twenty-four hours later, Mary’s frustration and shock had cooled into something more pragmatic. If she couldn’t convince her father of the danger she saw in their involvement—or of Jerusha’s lack of qualifications—then she would do her best to help Jerusha win over the jury. Perhaps in proving her own abilities, her father might finally relent and stop blocking her aspirations. Before her now sat her stepmother, writing closing arguments with a determination to make a difference. Despite her doubts and fears, Mary had to concede that maybe, just maybe, Jerusha’s righteous zeal against the town’s drunkenness could sway the jury in Mrs. Zimmerman’s favor.
The dining room grew warmer as the morning sun pressed against the drawn curtains. Kate had already transitioned the white gauzy drapes of summer to heavy winter fabrics, blocking any hope for a gentle cross breeze. Mary’s skin was hot underneath her petticoat layers. She had stored her summer clothing the week prior and regretted the timing, but her fan was always in her satchel, which she quickly retrieved.
“Mary, would you like some tea?” asked Mrs. Buckley. “It is too hot for me, I’m afraid.”
“Normally I would say yes, but this heat makes me feel as though it were July again.” Mary looked over her shoulder to the kitchen door. “I wonder if Kate might have something cool to drink?”
As if she had an ear to the door, Kate arrived in her black-and-white uniform, with a pitcher of fresh apple cider and watercress sandwiches.
“Oh, Kate. I was just wondering if you might have something cool to drink. It’s so warm today.”
“Good morning, Mary. The heat is terrible. I have cider here, still cool from the cellar, and some sandwiches.
“Thank you, Kate. Ladies? Would you like a refreshment?”
“Yes, please,” said Ellie. “Jerusha?”
Ignoring the group, Jerusha continued to write as if she were the only person in the room.
“She’ll take a glass as well,” said Mrs. Buckley, her tone suggesting annoyance with Jerusha’s manners.
“Yes, ma’am. I’ll get the tableware.”
Mary watched Kate step over to the sideboard, slowly gathering plates and cutlery as she kept one ear towards the women.
“All right, I am prepared to review.” With an air of certainty, Jerusha sat back in her chair, setting down her pen.
“Proceed if you will,” said Mrs. Buckley.
“My closing arguments will center on three essential points. Firstly, I plan to bring Mrs. Zimmerman and her children to stand before the jury to see their miserable state one last time.”
“Miserable state? Have you met them yet?” Mary understood from her father that the decision to invite Jerusha was last minute, giving them only a day to prepare.
“I have not. I will meet with Mrs. Zimmerman later this morning.”
“Well, how can you be sure they are miserable?” Overheating, Mary rearranged her skirts, wishing she had worn a lighter corset. Jerusha was maddeningly prone to assumptions. She looked to the other women, wondering if they felt the same.
“How do I know they are miserable? She is a widow; the children are fatherless… they live over in Hamar surrounded by foreigners. Of course, they’re miserable, and having them stand before the jury will emphasize their decrepit state.”
Mary held her tongue as she watched Kate’s shoulders hunch ever so slightly. Once again, Jerusha’s contradictions were on display. The woman wanted nothing more than to be independent, all the while chastising women for being widowed and raising children on their own. How was she to know the state of Mrs. Zimmerman’s welfare?
“Well, certainly they must be in an impoverished state, at least according to the papers,” replied Ellie.
“Mrs. Zimmerman is not a foreigner. She was born in Virginia, wasn’t she?”
“I think that is correct. Only Mr. Zimmerman is from Germany.”
“Well, that was an unfortunate choice for Mrs. Zimmerman,” replied Jerusha.
Mary cleared her throat and coughed as she made eye contact with Jerusha, tipping her fan towards Kate. The other women looked down at their laps in awkward silence.
“But what can be done?” whispered Kate, her back still turned to the group.
“Sorry, Kate. Did you say something?” Mary pulled at her collar, hoping Jerusha felt embarrassed for being impolite.
Kate turned to the group with a tray of plates and glasses. “Women have always gambled with the men they choose. I know I did… It’s our fate to pick up the pieces and move forward.”
Mary managed a nervous smile. Kate was nearly an invisible presence where guests were concerned. Seeing her pained face, so public in front of the women, pulled at Mary’s heart. What had gotten into her?
“That is enough, Kate. Please finish laying the table,” said Jerusha.
“One moment, Jerusha. While inappropriate, I’m curious to hear more.” Mrs. Buckley turned in her seat towards Kate. “Pray continue. What do you mean?”
“My apologies. It was not appropriate for me to speak.”
Mary gave a small nod of encouragement as Kate began laying out the plates.
“What I meant is that how was Mrs. Zimmerman to know she was marrying someone who would become a drunk—”
“It’s not the man’s fault. The liquor dens must be held accountable. The dealers must be held accountable. Once the booze sets upon the brain, the men are no longer in control of their wits.”
“Of course, ma’am… but aren’t the distillers and saloon keepers hard workers just like the rest of us? No matter where they came from, how can we blame them for the work they’ve always done? Mr. Zimmerman brought the glass to his lips.”
“That may be true, Kate, but if the saloons weren’t here, Mr. Zimmerman would still be sitting in his shack, and his family would not be in this hopeless situation,” said Mrs. Buckley.
“Kate, please finish setting up the refreshments.” Jerusha’s face tightened as she looked down at her notes.
Mary sensed there would be repercussions for Kate if the conversation continued. While the trial was the talk of the town, she had not considered Kate’s feelings in the matter. After years in the household, forgetting Kate's immigrant roots in Marietta came easily. Her fears about the temperance outcomes were clear in Kate’s eyes. She rattled off to divert their attention. “Well, regardless of the family’s current state, the statute allows for Mrs. Zimmerman to collect considerable damages: lost wages for Mr. Zimmerman, rebuilding their home, funeral costs plus punitive damages could be two or three times higher.”
“Oh my. Enough to bankrupt a saloon owner?” asked Ellie.
“Depending on their assets, that could be the likely outcome for many of them.”
“Mr. Henning cannot be taking this threat casually.”
“I don’t think he is…” Mary watched Kate push through the swinging door back to the kitchen. “I fear the rest of the liquor interests are watching this case closely.”
Mary had spent the past week considering the broader consequences. If Mrs. Zimmerman was successful, other people with alcohol-related misfortunes would be encouraged to file suit. Attorneys would line up as they saw profitable opportunities in temperance cases. Saloon owners could face multiple simultaneous lawsuits and bankruptcy, while distilleries and wholesale businesses would decline. People would lose their jobs and their livelihoods. Mary’s mind raced with the possibilities, all leading to the same conclusion: the liquor interests would not take kindly to the temperance workers, especially the Ewart family.
“This case is an anomaly, is it not?” asked Mrs. Buckley. “A fire, two deaths… such events do not occur daily.”
“Anyone who can prove to a jury that their lives have been damaged through drink provided by a saloon or wholesaler could bring a suit. The losses could be significant. The danger is indeed real.”
Mary stopped, wondering whether this reality had sunk in for Jerusha. Destroying the livelihoods of much of the town would no doubt have a significant impact on Marietta itself. Did the temperance movement anticipate these effects? Did they have a plan to address them?
Jerusha cleared her throat. “May I go on?”
“Yes, go on,” Mary said. No, nothing had sunk in. Jerusha appeared as determined as ever.
“Secondly, after they sit down, I’ll use the rest of my time to emphasize divine justice and Christian duty, which is what I’ve written here this morning.”
“And what about the arguments of a technical nature the attorneys provided to you? I summarized them for you yesterday.”
“They will not be needed.”
“Not be needed?” scoffed Mrs. Buckley. “You do want Mrs. Zimmerman to win, don’t you?”
“The jury will have been instructed to focus on the burden of proof, which the attorneys seem to have established in court this week, but Father emphasized we must summarize those arguments here in your statements.”
“The two male attorneys cannot speak on behalf of a woman like I can, and I plan to ask the all-male jury to consider how they would feel if Mrs. Zimmerman were their own wife or daughter. How they treat Mrs. Zimmerman is how God might treat them.”
“Therefore, you’re appealing to their Christian duty over all else.”
“That is correct.”
“You said there were three essential points. What is the third?”
“Ah yes, to speak plainly of course. I read the arguments from the attorneys. They are stale and technical; one would never know a woman lost a child and a husband if they weren’t paying attention closely.”
“Well, the role of a jury is to pay attention. They need to consider the facts of the case and come to a conclusion about the guilt of the defendant.”
“A jury should be made to feel that this family was wronged. I want them to understand the fear they felt when fleeing the fire, the horror of watching the house fall in on Mr. Zimmerman and the infant. They won’t need to think about the rest.”
“Goodness, Jerusha. Is this theater or is this justice?” asked Mrs. Buckley.
“Neither. It’s God’s will.”
“Well, if it’s God’s will, it better be good.”
“I’m certain it will be.”
Mary wondered if Mrs. Buckley realized how her respectable presence encouraged Jerusha’s boldness in the saloons and now in court.
Ellie shifted in her seat. “May I ask a provocative question? One that I have considered after some of the threatening looks we have received in the saloons as of late.”
“I have a feeling I know what you’re going to ask but, yes, go on,” replied Mrs. Buckley.
“What are the potential consequences to us; to the women taking the lead in this work? I’m not accustomed to being treated in such a manner. No woman should be.”
They all turned to look at Jerusha. Finally, thought Mary, I’m not the only one out here considering the possibilities.
“Ellie, you speak of consequences as if they were punishments, but I say they are opportunities to prove our faith. Every harsh word spoken against us is evidence that we are striking at the heart of Satan’s kingdom. Opposition from the liquor interests proves we’re on the right path.”
“You’re right, I suppose. The Lord does call on us to do His work, and He never promised it would be easy or comfortable.”
“Not so fast. Prudence is also a biblical virtue. Proverbs tells us, ‘The prudent sees danger and hides himself, but the simple go on and suffer for it.’ Sometimes wisdom means knowing when not to act, when to wait for God’s timing rather than rushing ahead,” replied Mrs. Buckley.
Mary saw that the other women understood something that she did not: to get into Jerusha’s mind, even her heart, one needed to do so through religious debate. While she was never inclined to do the same, she was raised in the Ewart household and could hold her own where the bible was concerned. “Mrs. Buckley, your remark is well-founded. Jesus said to count the cost before building. Have we truly counted the cost of this confrontational approach? Not just to ourselves, but to our families, our church, our entire community? What if we win the legal battle but lose the spiritual war by creating bitterness and division?”
“All of you speak of consequences and gentleness, but remember what James wrote: Anyone who knows the good he ought to do and doesn’t do it, sins. We know Mrs. Zimmerman needs our help. We know the law provides a remedy. We know we have the power to act. If we choose comfort over courage now, we are not being prudent; we are sinning against God and neighbor.”
“Fair enough,” said Mrs. Buckley.
Mary watched the other two women lean back, as if Jerusha’s final word had settled the matter. Though she still doubted the wisdom of their involvement in Mrs. Zimmerman’s case, it was obvious nothing could deter Jerusha. Her unwavering determination and misplaced confidence were something to behold. All that remained was to help Jerusha polish her closing arguments to ensure she didn’t embarrass herself. Reluctantly, Mary promised her father she would support the effort. If Jerusha succeeded, perhaps he would finally recognize that Mary deserved to work as an attorney.
“Shall I read you what I’ve written, or do you want to continue to debate?”
“Yes, yes, you must practice. Stand at the head of the table and imagine we are the jury.” Mrs. Buckley waved at the group to face the head of the table.
Ellie reached out to hold Mary’s hand. “You will help to refine her arguments, won’t you, Mary?”
“Of course. Anything I can do to help.” With a sigh, Mary turned her chair to face Jerusha.