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fully the suggestion made, he will take out of his amendment the suggestion as to a special verdict. We will save possible pitfalls, I think, thereby.
Everett P. Wheeler:
Mr. Putnam's amendment has been accepted by the committee.
Francis Fisher Kane:
In 1905 we passed a law in Pennsylvania which is in substance identical with the recommendation proposed by the committee, and it has worked admirably.
Thos. J. Kernan, of Louisiana :
There seems to be some confusion, I apprehend, as to what the real meaning of this report of the committee is. I take it to mean that the Constitution of the United States makes a trial by jury obligatory in these cases, and that the object of the amendment is to rob the jury's verdict of all harm and to permit the judge to render judgment. In other words, the jury finds a verdict, and the judge gives judgment non obstante veredicto. Now, it may seem strange to you, but I heartily approve the recommendation of the committee. I live in a state where in civil cases juries are never asked to decide questions in controversy between litigants, except where one party wants to get some unfair advantage over his opponent; we have no juries in Louisiana in civil cases unless they are prayed for, and it is made difficult to get them by compelling the party who prays for them to pay for them. We have an appeal, in all civil cases that a re appealable, on the entire record, and the court of appeals has the right, whether the case is tried by a judge or by a jury, at nisi prius, to substitute for the judgment below, the judgment that the court of appeals thinks ought to have been rendered in the first instance. It is a system that works with remarkable satisfaction, both to the Bar and the public, and I am glad to see my learned brethren of the common law states practically endorsing a system which has obtained with us since the organization of our state government. I think that there is the greatest reason why these tedious repetitions of trials should be terminated, and the whole object of this amendment is to prevent the necessity of submitting a plain and evident proposition back to another jury. It is to give the trial judge, if the jury renders an absurd verdict, as we all know they frequently do, the right to render such judgment as ought to have been rendered, and if the case goes up on appeal, it authorizes the appellate court, instead of reversing and remanding back for a new trial, to substitute for the judgment below the judgment that the appellate court is of the opinion should have been rendered in the first instance. Now, this is good law, and it is good procedure and we have proved it by our experience in Louisiana.
Roscoe Pound, of Illinois :
I think the best answer to what the last speaker has said with reference to the purpose which he conceives the committee's report has in this matter, is to say that long before there ever was a State of Louisiana, the common law adhered to and enforced the very practice which the committee recommends. It has always been the common law, and it is an abuse that we have ever introduced a different practice. The real function of the jury at common law is to find the facts, but for historical reasons, that finding takes a general form, and so it becomes necessary as a matter of form, to render a verdict for the plaintiff or for the defendant; although if the cause turns not on facts, but purely on law, if the pleadings show this there may be judgment, notwithstanding a verdict that may in form be the other way. That may be done now on the pleadings, and under the practice suggested it will be done on points arising at the trial; not upon questions of fact, but upon questions of law. Granting the facts which the verdict of the jury must find, to reach the conclusion they do, then the question will be, in point of law, conceding those facts, what should be the judgment? In form you may say that such practice sets aside the verdict. Now, the question we have to decide is, what are we going to stand for, the form or the substance? To vindicate form are we to have a new trial that sacrifices the substance, or are we to yield this little matter of form and say on the substantive point of law: “Granting
everything that the jury has found, it being necessary to render a judgment the other way, we will render judgment the other way without the expense of granting a new trial to justify us in point of form.”
J. P. Hartman, of Washington:
When I go to court I expect my client is going to follow my suggestions, or else he will have to get another attorney. Now we have an able committee, and on that committee I observe three men, former fellow practitioners of mine, in the State of Nebraska, for whom I have the greatest respect. The committee has deliberated long and carefully upon this important subject; they have put their conclusion in such form as they deemed wise, and I believe we are wasting time by further discussing the subject. I think we should sustain the committee in the recommendations that they have made.
James M. Austin, of North Dakota :
I find that there is a minority report here, which says, recommendations as formulated ”—that is of the majority report -"are diametrically opposed to the principles of common law procedure.”
Thomas O'Day, of Oregon:
It seems to me that this amendment is merely asking this Association to recommend to the law-making power that the jury system in this country be at an end.
This recommendation ought to provide, if it shall have any meaning at all, that if the facts in a case are disputed the court shall not substitute its judgment for the verdict of the jury.
I have had some experience on the Bench and considerable experience in the trial of cases, and I want to say that in my opinion, if this Association adopts a recommendation that the passing upon the facts in a case shall be taken from a jury, it will find that the recommendation will not be adopted by the people in the several states.
The Chairman :
The question is on the amendment proposed by Mr. Carey, amending this section of the report of the committee so that it shall read : “ That 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.”
T. J. Walsh, of Montana :
I think, with all due respect to the committee, that the members of the Association ought to be a little more fully advised concerning the significance of this proposed recommendation. I cannot see how it is possible for a court to render judgment non obstante veredicto unless you have special findings, or else give the court the power to pass upon the facts.
The Chair would remind the gentlemen that the question before the meeting now is, merely on Mr. Carey's proposed amendment to the committee's report. It would expedite matters if the amendment proposed by Mr. Carey is first passed upon, and then the report of the committee in the respect now under discussion may be taken up as a whole.
T. J. Walsh:
I am in favor of the amendment, if I may have the floor when the motion now pending is disposed of.
The Chairman :
Sufficient attention has not been given to the fact that there are two divisions to this recommendation. In the first place it reads that the trial judge may, in any case, etc. That simply provides for the submission of special questions to the jury, and a finding on those questions.
Thomas J. Kernan :
T. J. Walsh :
Well, if that is so, then I shall be compelled to vote against the recommendation.
The Chairman :
For the information of the gentleman, the Chair would state that the proposition to insert " for a special verdict” has just been voted down." So the question as it now stands is : “ That the trial judge may, in any case submit to the jury the issues of fact arising on the pleadings.
T. J. Walsh :
And reserving any question of law for subsequent argument and decision. But then the recommendation proceeds to provide that any court to which the case shall thereafter be taken on writ of error shall have power to direct judgment to be entered for either party non obstante veredicto. Now, what I desire to know is how it will be possible to enter a judgment non obstante veredicto without special findings, unless you give to the court power to determine the facts themselves. Take a negligence case; it is submitted to the jury and the jury returns a general verdict. In such a case how is it possible for the court to render a judgment for the defendant, without passing on the facts, or doing precisely what he does when he grants a motion for a nonsuit.
Frederick W. Lehmann:
He does precisely as he would do when he hears all the testimony adduced by the plaintiff, and does not submit the case to the jury on the ground that the facts do not under the law constitute a cause of action.
T. J. Walsh :
But the difficulty is, as I look at it, that this gives the court power to render a judgment, notwithstanding the verdict of the jury.
Frederick W. Lehmann:
It is idle to discuss one phrase of a clause unless you take the whole law as an entirety into consideration. This must be construed with reference to the other provisions. I agree with the