The President: The question is on the motion of the Chairman of the committee, that the recommendation of the committee approving of the enactment by Congress of the Amended Bill, Appendix A of the report, be adopted. M. A. Spoonts, of Texas: I would like to ask the Chairman of the committee a question. By this new section of the proposed bill can the appellate court to which a case is taken order a judgment entered on the verdict or upon the points reserved? Take a personal injury case, involving two or more defenses, and the court only submits one of those issues to the jury. The defense is, we will say, contributory negligence and also assumption of risk on the part of the plaintiff. The court submits the defense of contributory negligence to the jury and that is passed upon, but does not submit to the jury the other defense, although it arises vitally in the case. Can the appellate court render judgment upon the case on the ground that the trial court erred in not submitting the case to the jury? Everett P. Wheeler: In the case assumed judgment would certainly have to be that a new trial must be had. Of course, such a case we try to reach by our second section, which points out that such matters should be submitted to the jury even if the judge has doubt about the law, taking the verdict of the jury upon the facts. M. A. Spoonts: Then why not add to your recommendation a provision to the effect that a new trial must be granted where the verdict is insufficient to enable the court to enter a final judgment? Ernest T. Florance, of Louisiana: I would like to inquire of the Chairman of the committee if the meaning of that section is not that the court may in its discretion do this? Then if the court finds that the exercise of such discretion would not be proper, it could order a new trial. Everett P. Wheeler: I think that is what the bill expresses. M. A. Spoonts: It seems to me that the intention of this bill is that the case must finally be disposed of one way or the other on the first trial. There is no provision here for granting a new trial. You provide that if the point reserved is conclusive the court may render judgment upon that, but not so if that point be not conclusive. To take another illustration: Suppose a court upon a trial of a case charges that the witnesses of one side are unworthy of belief. Error is assigned upon that charge. The first section of this proposed bill provides that no error committed in the charge of the court shall result in a reversal of the case, unless it appears that the error has caused a miscarriage of justice. Then the burden is upon the losing party to show that a miscarriage of justice has occurred. Would you say because the court had slaughtered your witnesses upon the trial that it necessarily resulted in a miscarriage of justice? You are widening out into a pretty broad and dangerous field. You are proposing by this legislation not to say that cases are to be tried according to law, but that the ignorance or stupidity of a judge is to be protected by law. That is the sum and substance of this entire report, as I most respectfully submit. If a case is not tried according to the rules of law, correctly speaking, it is not tried at all. It is a misnomer to say that a man has received due process of law when the very judge before whom his case is tried has violated the law of procedure of the court in which the case is being tried. We have been living in recent years in times of popular disturbance and great tribulation, but when these waves of passion that have been sweeping over the country for some years shall have subsided, and when the flaming and militant sword of the President's address has been beaten into a ploughshare, and when the American people begin to understand that the great business interests and industrial concerns of the country are not their enemies, but the basis of their prosperity, then I assume that this Association would like to remember that during all this turbulent time it was a force to conserve and protect rather than one to destroy. I, therefore, think that this entire legislation is unwise, but as the Association saw proper at Seattle to pass the first measure that is here proposed favorably, it follows logically that the second measure proposed is essential as a break, insignificant and inefficient though it be, upon the danger lurking within the first. We have had this question before us ever since the distinguished gentleman delivered his celebrated address at St. Paul upon the delinquencies of American courts-and it has occurred to me that if the courts were subject to the criticism that was then made upon them they were truly delinquent, and Judge Mack, of Chicago, could properly take them in charge and administer them through his probation officers. I propose, therefore, in order to remedy what I conceive to be a defect in the bill, an amendment to the second section reading as follows: "Amend by striking out all after the word 'reserved,' in Section 2, next to the last line, and insert in lieu thereof, as the justice of the case may require, or grant a new trial where the verdict is insufficient to enable the court to enter a correct final judgment."" The amendment was seconded. James Quarles, of Kentucky: The entire provision embodied in the second section of the proposed bill is to my mind one of very questionable wisdom, justness or expediency. It seems to me to call for a departure from the most fundamental principles of procedure. It has been urged as the main consideration why the existing statute should be amended in the particular proposed, that frequently it occurs that a litigation is stopped in limine, as it were, because one runs afoul of an adverse decision by the trial judge on a question of law presented by the statement of the cause of action; that it is an injustice to such litigant not to allow him to proceed with the trial of his case upon the merits, and that he should be permitted, just as though he had stated a good cause of action, to go on with the trial, leaving to the appellate court the decision of the question of law involved. It must be freely granted that that is one view to take of the matter; but I submit that it so appears when considered from the viewpoint of the plaintiff only. How does the matter appear when we look at it from the standpoint of a defendant? Is it not equally unjust that a defendant, who is haled into court by a plaintiff who has failed in his petition to allege what the trial court conceives to be a cause of action, should, nevertheless, be put to the trouble and expense of going ahead and trying out the issues of fact, introducing his proof, etc., and finally in the appellate court perhaps win on the question of law, only to find himself relegated to the empty satisfaction of a judgment for costs against an irresponsible plaintiff? I refer more particularly to actions for the recovery of damages for personal injuries, in the large majority of which what I have just said certainly would hold true. I submit that there is nothing unreasonable in requiring that a plaintiff should, to the satisfaction of the trial judge, state a valid cause of action before he is allowed to proceed further and put the defendant to the expense and trouble of more litigation. That is the rule applied to a defendant. If a defendant by his answer interposes a defense which the trial judge holds is not sufficient in law, he must either amend and state a good defense or permit judgment to go by default. To my mind it would be an injustice to have the law provide that the plaintiff should have any such advantage as is here proposed. Therefore, if the motion be in order, I move as an amendment to the amendment already proposed by the gentleman from Texas that the entire second section of this bill be stricken out. The amendment to the amendment was seconded. The President: That is a mere negative side of the motion already pending, and the Chair rules that it will come up on the question of adopting the motion that is now before the house. James Quarles: But, Mr. President, my motion relates solely to the second section of the proposed bill, and not to the bill as a whole. The President: That is true, but the Chair rules that we are voting upon this bill section by section. Stephen H. Allen, of Kansas: These sections go straight at the evil that has been and is a great reproach to our profession and to the administration of justice in this great country. We may just as well face the proposition now as later that the general consensus of opinion of the people of the United States is opposed to the technicality that so often disposes of trials, and causes retrials, and often trials multiplied many times, because of the disregard of a simple old time-honored rule of procedure that has no foundation and no merit in fact. The amendments that are proposed by this committee seek to place substance above form. We lawyers learn our different systems of procedure, we try to learn the equity rules, the admiralty rules, the bankruptcy rules, the different common law rules and the code rules of all of the different states, in order that we may fit ourselves to practice in the federal courts; but, we are confronted with a chaotic condition so far as the mere rules of procedure are concerned. We are confronted in code states with a multiplicity of minute regulations which require that things shall go through the judicial mill in a twisting and wonderful form-not straight and easily, but with all sorts of hindrances. And after all, what have they to do with the rights of our clients? Absolutely nothing. The gentleman from Texas says that a trial is no trial unless it is according to the forms of law. Of course, I am as strongly attached to a strict adherence to the law as any gentleman here, but I am utterly opposed to having the great profession to which we belong open to the charge of being mere pettifoggers in every court from the lowest to the highest. What are the essentials of procedure? They are the same in all kinds |