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issue of fact in the case now, where the court can refuse to submit that issue. In other words, it amplifies the right of trial by jury.

Charles W. Smith:

But when you say that “the court may in any case submit the question of fact to the jury” it seems to me you leave it in the discretion of the court to say whether it will in any case do that.”

Frederick W. Lehmann:

But you must remember that this language is to be taken in connection with the language in the section amended.

Stephen S. Gregory, of Illinois :

I do not think that the amendment suggested by Mr. Putnam and accepted by Mr. Lehmann really meets the views of either of those gentlemen.

The suggestion is that the first line on page 11 of the proposed statute shall be amended so as to provide that the trial judge may

in any case submit to the jury the issues of fact. Of course the trial judge must submit the issues of fact; he cannot have any discretion about it; but what is intended was to provide that he might reserve any question of fact. Therefore, instead of putting in the word “may” in the first line, it should be put in before the word “reserved” and that word should be changed to reserve." Frederick W. Lehmann:

I have no objection to phrasing the sentence in that way; I am not a stickler on form and I am always glad to get instruction in good English.

Stephen H. Allen:

The purpose of the amendment which I suggested was to state definitely the right of the parties to insist in a submission of the questions of fact to the jury in such form that a verdict will present the question of law to the appellate court and avoid a re-trial.

The Chairman:

There are two amendments suggested; one by Mr. Allen and one by Mr. Gregory. I have heard no second to either.

William H. Burges :
I second Mr. Allen's amendment.
Frederick W. Lehmann:
I would like to have Mr. Gregory state his amendment again.
Stephen S. Gregory:

My amendment is, in substance, that the trial judge shall in all cases submit to the jury the issues of fact arising upon the pleadings, and may reserve any questions of law arising until subsequent argument.

Roscoe Pound, of Illinois :
Oh, that won't do. That destroys Mr. Putnam's amendment.
The Chairman:

The committee, through Mr. Lehmann, accepted Mr. Putnam's amendment; therefore, the question will have to be put first upon the amendment proposed by Mr. Gregory.

Charles H. Carey, of Oregon:

I think the object the gentleman seeks is not likely to be accomplished by the amendment he suggests. I think that what he aims at and what the committee aims at is that it shall not be compulsory on the trial judge in all jury cases, to submit the questions of fact, but that the judge may in any case submit to the jury for a special verdict the issues of fact, reserving any questions of law that may arise. I think Mr. Gregory's amendment should be voted down and that the proper amendment should be that the trial judge may in any case submit to the jury for a special verdict questions of fact, arising upon the pleadings, reserving any question of law in the case for subsequent argument.

The Chairman:

Do you offer that suggestion of yours as a substitute for the pending amendment?

Charles II. Carey:
Yes, sir.
The Chairman :
The question is on the motion made by Mr. Gregory—the sub-

stitute stated by the gentleman from Oregon not having received a second.

The amendment was lost.
Charles H. Carey :

I now move to amend the report so that the first sentence will read in this way:

The trial judge may in any case submit to the jury for a special verdict the issues of fact arising upon the pleadings, reserving any questions of law arising in the case for subsequent argument and decision."

The point that I make is that it ought not to be compulsory upon the judge to submit a case to a jury if in his judgment he thinks there is no case to be submitted, but that if he is in doubt about it, he should submit the case to the jury and instruct them, if they find a general verdict, to find on particular questions of fact by a special verdict, reserving any question of law; and then the appellate court upon review may find the judgment ill advised, and upon the whole find that the result should have been otherwise.

Emory Speer, of Georgia :

May I ask the gentleman, if the intention of his amendment is that the jury is to have no assistance from the court in the way of instructions ?

Charles H. Carey:
I think the jury would be advised as usual in trial cases.
Emory Speer:

Isn't it true that in nearly every case where the facts are submitted to the jury it would be essential that the court give the jury explanatory instructions, in order that they might arrive at a verdict; and does not this second provision of the amendment, therefore, contemplate two trials, one before the jury, and a subsequent one upon the law when application is made for judgment non obstante veredicto?

Everett P. Wheeler :

May I answer that inquiry, Mr. President, it seems to be addressed to the committee ?

The Chairman :
Yes, sir.
Everett P. Wheeler:

That was the common law. A case went down to be tried by a jury of the vicinage; there was no judgment entered until it got back and was heard before the court in banc, and then judgment was entered. The finding of the jury was entered upon the records. The court entered judgment, either for the plaintiff or for the defendant, as the court was advised upon the law. Theoretically it is possible, I suppose, to do that now, but practically it is not done. Now the object of the committee was to restore that practice.

Therefore, we provide in this recommendation that the trial judge shall, as before, submit the questions of fact to the jury and take their verdict on the amount of damages. The object of this is to get the jury to pass upon the questions of fact, leaving to subsequent hearing the questions of law which may arise.

Emory Speer:

I recall a very famous and interesting line of cases under the common law where the courts attempted to have the jury find a fact where the jury refused to do so, and passed on the entire case. Are we not taking an unusual step in going back to the English practice ?

Frederick W. Lehmann:

This simply gives the trial court power to enter judgment, as it thinks the law requires, but gives the court no power to settle. any issue of fact.

Emory Speer:

In view of the question of negligence in a damage case, what bearing would it have?

Frederick W. Lehmann:

Why, it comes up in exactly the same way, upon the facts as presented.

Emory Speer:
Of course, there is the question of fact for the jury; yet the

jury in finding the fact of negligence is entitled to the instruction of the court.

Frederick W. Lehmann:

Certainly, and the court instructs the jury. This simply gives to the court the power, where the court thinks the case requires it, instead of setting aside the verdict and ordering a new trial, to enter such judgment as the court thinks as matter of law should be entered on the verdict.

Charles H. Carey:

I take it for granted that it is not intended to deny the right of the judge to grant a nonsuit in a proper case, and it seems to me that power should be vested in the judge. Now, if that is so, then the object would be accomplished by permitting the judge to submit an issue of fact, in the event that he has any doubt, to the jury for a special verdict, reserving the question of law for ultimate decision, and rendering a judgment for one party or the other, as may be proper, upon the special verdict and as finally advised by the law. The same rule will apply in the appellate court under this section as so amended. If it is the intention of the committee to take away from the court the power to grant a nonsuit, when the court thinks a nonsuit should be granted, as a matter of law, then I am not in favor of the report of the committee upon this section; but if it is intended to leave to the court the right to grant a nonsuit and to reserve the questions of law to be ultimately determined upon final argument, either in the trial court or in the appellate court, and to be governed by the verdict of the jury accordingly, then I think the amendment will cover the ground perfectly, because it gives the trial judge discretion. It does not make it compulsory upon him to submit the question of fact for a special verdict, and, on the other hand, he is not, as the section was originally reported, compelled in all cases to leave questions of fact to the jury, irrespective of whether he may or may not think there is a case to go to the jury.

Francis Fisher Kane, of Pennsylvania:

I am strongly in favor of the amendment suggested by Mr. Putnam. It seems to me that if Mr. Carey will consider care

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