Evening star., 1948-02-29
~A "Judge's and Lawyers Judge"
as One Of the
Most Realistic of
All Jurists

Gypsum Co. and other gypsum
manufacturing concerns, charged
with violation Of the antitrust laws.
He wrote this opinion for q three
Judge Federal trial court, over
which he presided. It was decided
June IS, 1916. The Government
unsuccessfully sought an injunction
against the firms.
Justice Stephens wrote in his
opinion: "- /" The evidence fails
to prove that the defendants asso-
ciated themselves in a common
plan to execute patent licenses and
stabilize prices" He declared: 1T
is apparent upon q review Of the
record in this case that the licensing
arrangements which are the subject
of the action, rather than being
part of a scheme to circumvent the
Sherman Act, were entered into as
the result of confluence Of certain
legal and economic factors"
This opinion is ia pages long.
'Broken.T DOTH Case
One of the earliest decisions that
brought him widespread attention
is known familiarly as the broken
tooth" case. He wrote the courts
opinion which established q new
landmark in protecting the public
in the District-and elsewhere. For
it held that one VINO sells food for
consumption on the premises virtu-
ally insures its wholesomeness. The
lawyers know the case as Gushing
VS. Rodmaa (65 Appeals D. c., 25S).
1t was decided February "a, 1886.
A drugstore customer bit down on
a pebble hidden in a roll and broke
q tooth. He sued. Judge Stephens
wrote in the opinion: 1--WE conclude
that upon the service of food for
consideration and for immediate
consumption upon the premises Of
the seller, but which food was not
prepared by the seller but purchased
elsewhere and the defect in which
was not discoverable except by de-
stroying the marketability of the
article, there is an implied warranty
that the food is wholesome, for
breach of which an action lies for
the recovery of consequential DAM
ages"
Judge Stephens belief is that a
judges first duty is to decide a case
strictly upon the facts as shown in
the record and according to appli-
cable law. While some Of his opin-
ions have been criticized as being
too lengthy, the jurist holds bench
and bar-and the public-are en- .
titled to know fully the reasons
upon which the decision rests. He
familiarizes himself with the briefs =,
before hearing arguments and is
searching in his questions Of the /
lawyers. ..,.
Under Frankfurter
His opinions are considered mas
terpieces of legal thinking, but they
also exhibit an insight into grammar
and diction. He polishes them,
both for form and fact. 1,
, = administrative Tribunals and the
Rules Of Evidence" published by the
Harvard Press, Is from his pen, He
took courses at Harvard both from
Felix Frankfurter, now q Supreme
Court justice, and from Dean Roscoe
Pound.
Justice Stephens worked as a
one summer at
Bingham Canyon, Utah. On this !
newspaper he not only acted ,
Is reporter, but set type and col ,
ected bills.
In the American Bar Association ,
Journal for July, 1916, Judge Stenh- ;
ms wrote portrait of Chief Justice q
If the United States Vinson.
One Of Judge Stephens outstand- -
ng literary contributions was the ..
address he delivered in =
honor of the late Justice George :
sutherland of the Supreme Court
ike himself an adopted Utahan.
This is regarded as classic in legal (
literature.
Justice Stephens joined the {
Appeals Court on October 7, 1885, e
the late Justice William r
Hitz, who died July of that year. e
In little more than a dozen years n
here has been almost a complete e
turnover of the personnel Of that i!
With the exception of b
Justice Stephens, all its 1885 men, v
oers are either retired or dead. It