230 TEXAS BAR JOURNAL

Lawyers Ask Quick Reform

A number of legal institutes on therules of civil procedure were held in vari-ous sections of the state between April 16and May 18. Most of the lawyers favoreduse of the Federal Rules, where applicable,as a basis for the new Texas rules, andthe meetings were almost unanimous infavor of abolishing the general demurrer,retaining the special issues statute, and

adopting pre-trial procedure.

"The attitude of the Wichita CountyBar Association was, I believe, typical ofthat of the lawyers throughout the state,"Roy W. McDonald of S. M. U., advisorycommittee member who conducted theinstitute in Wichita Falls, points out."They manifested a desire to reform ourprocedure at once, and not to take a timidattitude toward the problems. If reformsare needed, they are needed just as muchon September 1, 1941, as they wil be ayear or two later. If the new rules of the

Supreme Court do not make the desiredreforms, it ,certainly wil not be the faultof lawyers such as were present at thismeeting and emphatically expressed theirapproval of far-reaching changes."

Other institutes were conducted byPreston Shirley of The University of Texasin Temple April 20 and Austin April 22,and by Judge James P. Alexander of theWaco Court of Civil Appeals in SanAngelo April 29, Lubbock May 1 and 2,and Amarilo May 3. Mr. McDonald andJudge Alexander also were among thespeakers at the three-day legal institutein Dallas April 18, 19, and 20. A localclinic of the Cameron County Bar Asso-ciation in Brownsvile April 16 discussedquestions prepared by Judge Robert W.Stayton for a previous meeting in CorpusChristi, and eight members of the Plain-view Bar assembled for a special meetingFebruary 22 to discuss the rules ofprocedure.

TempleAttendance was large at the Central

Texas lawyers' institute in the MunicipalAuditorium at Temple. After a thoroughdiscussion, the following recommendationswere made:

1. That the Supreme Court retainpresent Texas requirement that the factsconstituting a cause of action or defense

be pleaded.

2. That the general demurrer as it isnow used be abolished and that every de-fect, omission, or fault in a pleading eitherof form or of substance, which is notspecifically pointed out by motion or ex-ception in writing and brought to theattention of the judge in the trial courtbefore the instruction or charge to thejury or, in a nonjury case, before therendition of judgment, shall be deemed tohave been waived by the party seekingreversal on such account.

3. That some system of pre-trial pro-cedure be adopted.

4. That special issue practice be re-tained.

5. That converse issues may be sub-mitted disjunctively in one issue, or wheretwo issues are submitted, the court mayinstruct the jury that an affrmative an-

swer to one would preclude the necessityof answering the other.6. That the "committee adopt some

sort of rule that wil enable service to be

had in all district courts thirty days be-fore Monday in a particular month andthat the process have attached to it acopy of the petition instead of an attempt-ed statement by the district clerk."

7. That a party complaining on appeal

of the failure of the court to submit anissue which was a part of his case should

be required to tender such issue as a pred-icate for appeal, but that the complainingparty on appeal would be required onlyto object to the failure of the court to

submit an issue which is a part of his op-ponent's case.

8. That it be within the discretion of

the court to submit explanations and def-initions as a part of the charge, regardlessof whether such explanation under thepresent authorities might be considered as

a general charge.

9. That an objection to the failure ofthe court to define the term is a suffcient

predicate for complaint on appeal and thatthere is no necessity of tendering a defini-tion.

TEXAS BAR JOURNAL

The meeting rej ected a motion to the ef-fect that on appeal there should be nopresumption of any finding on the omittednecessary issue by the trial court. Thiswas assumed to mean that a majority ofthose present were in favor of a presump-tion on appeal of a finding on a necessary

issue to support the judgment, Mr. Shirleysaid.

AustinProbably no other branch of law needs

reforming as much as does civil procedure,Judge Ralph W. Yarborough told lawyersattending the Austin institute. Pointingout that more than four and a half yearsare required from the time of filing a casein trial court until it goes through the

State Supreme Court, he described thepresent procedure as a "burdensome andunsatisfactory way of settling disputes."Sponsored by Travis County Bar As-

sociation, the institute was conducted byMr. Shirley in the Fifty-third DistrictCourt room. The following recommenda-tions were made:

1. That the present system of factpleading be retained.

2. That notice of all pleadings, includ-ing the pleas of privilege, be served on op-posing counsel and that service by mail asin the Federal Rules be suffcient. Thisdoes not include service of citation neces-

sary to commence a proceeding.

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3. That a party pleading a general de-murrer be required to state specificallythe reasons or grounds for the same.

4. That pre-trial procedure substan-tially as provided by Fedaral Rule 16 beadopted.

5. That where a ground of recovery ordefense consists of more than one issueand where some of the issues are sub-mitted but one or more are not submitted,

and where there is no objection to thefailure to submit said omitted issue, thenthe issue not submitted wil be presumed tohave been found in support of the judg-ment rendered, if there is evidence to sus-tain such finding; but where no issue issubmitted or requested on a ground ofrecovery or defense, that ground wil notbe presumed as found in support of thejudgment but wil be waived.

6. That in the event an issue is sup-

ported by testimony and no testimony tothe contrary is offered, the issue raised bysuch testimony wil be presumed as foundin support of the testimony unless the fail-ure to submit an issue thereon is objected

to.7. That it shall not be the duty of the

party objecting to the failure of the courtto define a term, or to the giving of a defec-tive definition of a term, to submit a cor-rect definition in order to be able to com-plain on appeal of the action of the trialcourt.

Approximately seventy-five lawyers at the Wichita Falls institute, below, asked that civilprocedure in Texas be reformed at once. They unanimously recommended that only minoramendments necessary to remedy defects that arise be made after September 1, 1941. Atthe left is Roy W. McDonald of Dallas, who conducted the institute.

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8. That to raise on appeal either the

omission of a necessary issue, or an errorin an issue that was submitted, the ob-jecting party shall be required to tender

a correct issue.

San AngeloOne of the best efforts on the part of

the Legislature in 1939 to simplify pro-

cedure in tax suits was in the changes inArticle 7345b, James Patrick Farrell ofSan Angelo declared at the institute oncivil procedure April 29. Delivering abrief paper on "Sections Concerning Pro-cedure under Article 7345b" before JudgeAlexander began discussion of the pro-posed rules, Mr. Farrell pointed out thatby the enactment of that Article, the reme-dies of the different taxing units were in-tended to be enforced in one proceeding,

under one adjudication, through foreclos-ure of one lien, at one sale, subject to oneredemption.

"Prior to the changes under this Arti-cle," he said, "each taxing unit was leftto its own devices to fix a tax lien upon aparticular piece of property, leaving each

tax unit to select the time and means ofestablishing and enforcing its own taxlien against the property, with the fre-quent result of the institution and prose-

R. J. Long, left, and John D. Cofer of Austinair their views at the Travis County legal institute.

cution of several different suits, judg-ments, executions, and conveyances oftaxed property."

The San Angelo institute was the thirdmeeting of Tom Green County Bar Asso-ciation on the subject of civil procedure.

"The lawyers in this section, speakingrather generally, are opposed to the specialissue but do not know enough about theold general charge to be either for oragainst it," President Robert T. Neil de-clares. "They blame the appellate courtsfor the confusion incident to the special

issues; but in every event they feel thatsome relief is absolutely essentiaL."

The lawyers voted as follows on pro-posed amendments to civil procedure:For short form pleading .................. 7For retaining present long form pleading.. 19Fot' long form pleading, modified .......... 10

For retaining general demurrer .......... 14Against .................................. 21

For retaining general denial .............. 19Against .................................. 14

For pre-trial procedure .......... no oppositionFor pre-trial procedure for purpose of allow-

ing defendant's doctor, on request of de-fendant, to examine plaintiff and his in-juries in personal injury action .......... 13

Against ................................. 16

For appointment of doctor by the Court,rather than defendant's doctor, in such per-sonal injury action .................... 5

Against ................................. 30

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For making pre-trial mandatory on demand. .Against ..................................

For abolishing present rule relative to settingaside verdicts on ground of misconduct ofjury.................................. . 4

TEXAS BAR JOURNALFot' t'etaining present rule ................ !lFor adopting proposed amendment to presentrule ................................... 2B

For adopting general charge .............. 8For retaining special issues ................ 16

For submitting all special issues in affrmativewith special charge on burden of proof .... 2:i

Against .................................. 1

For charging by Court on such additional mat-ter as is necessary to a proper understand-ing of issues ... . . . . . . . . . . . . . . . . . . . . . . . .. 24

Against .................................. 1

For rule requiring objector to define term ob-jected to, by tender of correct definition .. 17

Against .................................. 12

For rule requiring one who objects to fot'm ofissue to tender issue in proper form, ot'waive such objection to form ............ 12

Against .................................. 17

For t'ule that where ground of recovery iswholly omitted in a requested but unsub-mitted issue, that issue shall be deemedwaived ................................ 24

Against ........................... 2

Fot' rule that where some elements of groundsof recovery were submitted, but not all, thenall issues necessary to support of judgmentshall be presumed to have been found insupport of the judgment ................ 22

Against ............................ 4

Lubboc!zVaughn E. Wilson was elected to pre-

side at the Lubbock County institute,which was conducted by Judge Alexander.The meeting voted in favor of the follow-ing changes:

1. Abolishing the general demurrer.2. Abolishing the general deniaL.3. Requiring notice of filing of all

pleadings after the first.4. Requiring answer to citations after

twenty days from service.5. Requiring proof that misconduct of

the jury resulted in injustice.6. Returning to the general charge.

7. Submitting issues in the affrmative.

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8. Requiring the complaining party inthe Court of Civil Appeals to submit intrial court issues and correct definitions.

9. Requiring the party objecting to the

form of the issue to submit a correct form.10. Requiring the party objecting to

the charge to submit correct issues.11. Waiver, upon appeal, of all inde-

pendent grounds of defense unless issueis submitted.

12. Presumed finding in support of thejudgment as to the omitted element or ele-ments where a defense consists of morethan one element and one of such elements

is submitted.13. Submitting disjunctively two such

jp.sue:; as "Was plaintiff permanently ortemporarily disabled?"

14. Authorizing the trial court to callpre-trial hearing.

15. Requiring submission by disabled

person to physical examination.16. Short form pleading.i 7. Elimination of special issues.

18. Modification of the Special Issue

Statute if it is retained.

AmarilloApproximately seventy-five attorneys

from Amarilo, Dalhart, Perryton, Pampa,Borger, Clarendon, Panhandle, Claude,Tulia, Farwell, and Vega attended theAmarilo institute conducted by JudgeAlexander May 3. Robert Wilson andCharles H. Keffer of the local bar pre-sided.

The meeting voted against the shortform of pleadings and the general de-murrer, but approved retention of the gen-eral deniaL. The lawyers favored changingthe answer date to twenty days after serv-ice and giving notice to the opposite partywith respect to the filing of pleadings.

Vaughn E. Wil-1'01', president ofLubbock CountyBar Association,second from theleft, and JudgeJames P. Alex-ander of Waco,third, discuss pro-posed ref 0 l' m swith out-of-townlawyers at theLubbock institute.

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They believed that pleadings should besettled before trial, but voted against ad-mission of facts where not specificallydenied.

After much discussion of the form ofthe charge, a vote of more than two toone was cast for retention of special is-sues, with the submission of special is-sues discretionary with the judge. Themeeting was unanimous in the recommen-dation that all issues be framed in the af-firmative where practicable, with specialcharges on the burden of proof. Vigorous-ly opposed was the suggestion that failure

to submit requested issues would not bereversible error if an answer in favor ofthe complaining party would have been inconflict with the answers made to the is-sues that were submitted. The lawyersfavored the proposed rule compelling the

tender of a proper definition where excep-tion was taken to the Court's charge forfailure to define a term used therein.

It was recommended that if a ground ofrecovery or defense is submitted in part

and an issue incidental thereto omitted,the presumption be that such issue isfound in favor of the judgment; but theassembly was against a rule which wouldprovide that "where there is an omission

of a finding on an essential fact and theissue therefor has not been requested, thetrial judge, on demand, shall make an ex-press finding thereon if the issue is con-

troverted under the evidence."

Those present were almost unanimouslyagainst changing the present rule withrespect to impeaching the jury's verdict,and voted against a rule that would place

the burden on the complaining party toshow that misconduct occurred and thatit resulted in injury to the complaining

party.

Wichita FallsJudge Allen Montgomery, member of

the Supreme Court advisory committee,presided at the Wichita Falls institute inthe Kemp Hotel, and Mr. McDonald ledthe discussion. Approximately seventy-fiveattorneys attended the afternoon session,and forty remained for the dinner andevening discussion. Out-of-town guestsincluded lawyers from Vernon, Grahamand Henrietta.

On the question of Federal Rules, the in-stitute was unanimously against theiradoption as a body, but voted 5 to i in

favor of using them where applicable. Thevote was 2 to 1 against requiring allega-tions of fact in pleading; 6 to 1 against

requiring the pleading to state elements

of a cause of action; and 5 to 2 in favor ofa modified form of notice pleading similarto, but somewhat more specific than, theFederal Rules.

A 6-to-l majority approved compulsorypre-trial procedure at the request of eitherparty or the court in every jury case. Theywere 9 to 1 in favor of compulsory admis-sion or denial of facts and production ofdocuments, 5 to 1 for compulsory physicalexaminations for the plaintiff, and 4 to 1for making pre-trial effective by allowingthe judge to tax costs, expenses, and at-

torneys fees against a litigant who refusesto coöperate, and even to punish by con-tempt of court where actions are particu-larly obnoxious. On motion of instructedverdict, they were 3 to 2 in favor of re-quiring a specific statement of grounds.

The meeting was unanimously againstabolishing special issues, 6 to 1 againstmaking a general charge optional with thecourt, and 7 to 1 against a combination ofgeneral and special issue charges. On thequestion of whether Texas should requirethe submission of merely general issues,instead of specific issues, the vote was 13for and 18 against, a number of thosepresent not voting. They unanimouslyfavored requiring that a special issuewhen requested be tendered in correctform at the peril of the party making therequest, and that the party who requesteda definition tender a correct definition.

Opposing submission of such issues asunavoidable accident and sole proximatecause unless specifically pled, the lawyersvoted against the present requirement thatso-called "converse" issues be submittedunder a general deniaL. They were 7 to iin favor of allowing the trial judge tocondition fully the submission of issues,and to provide that there be no reversalbecause an issue so conditioned might betechnically on the weight of the evidence

unless actual prejudice is shown.

DallasThe liberal spirit of the pioneer Texas

la wyer is needed in drafting the new rulesof civil procedure, Charles T. McCormickof Northwestern University declared at

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LA WYERS ASK-

(Continued from Page 234)

the opening session of the three-day insti-tute sponsored by S. M. U., the Bar Asso-ciation of Dallas, and the Texas Bar As-sociation.

Member of a pioneer Texas family, Pro-fessor McCormick told the lawyers thatthe early procedural system was basedpartly on Spanish law, partly on Louisianalaw, and "perhaps also, ignorance was agreat law reformer." About 1900 the ten-dency toward more strict procedure began,he pointed out, and the present rule-mak-ing power points to a swing back to moreliberal rules.

"The dominant role of the pioneer prac-tice was the exaltation of substance over

form," Mr. McCormick said. "Anothermarked feature of the pioneer Texas prac-tice, a feature never lost through theyears, is the flexibility of pleading whichresults from the unique freedom of amend-ment." Submission of special questions tojurors for answers in lieu of a generalverdict is a common-sense way of focusingtheir attention upon the crucial facts ofthe case, he declared, but it can work suc-cessfully only when the questions are fewand phrased in simple language.

Roy Ledbetter, chairman of institutecommittees, presided at the morning ses-

sion in the Adolphus Hotel, and Mr. Mc-Donald discussed the simplification ofpleading by eliminating the technicalitiesof fact and cause of action pleading, lib-eralizing provision for amendments, andrequiring the reasons to be stated in con-

nection with general demurrers.

Practices of some trial judges in virtual-ly turning over to the plaintiff's attorneythe preparation of charges to the jurywere condemned by Judge Alexander inhis address on "Attitude and Responsi-biliy of the Trial Judge" Friday night.He discussed problems of whether theCourt should be allowed to comment onthe weight of the evidence, and the assist-ance which should be expected from at-torneys in preparing the charge.

"There ought to be a middle ground,"Judge Alexander asserted, "where thejudge could be permitted to render rea-sonable aid to the jury and at the sametime not violate the rule of fair play byusing his offcial position to make an argu-ment to the jury in favor of one or theother party." J. Cleo Thompson of Dallas,chairman of the Texas Bar AssociationBoard of Directors, presided at the ses-sion, and Judge Tom Suggs of Denisondiscussed summary judgment, improve-ment in default judgment practice, andthe attitude of appellate courts toward re-versals for immaterial defects.

Saturday morning the institute met onthe S. M. U. campus for a debate on specialissues, presided over by Paul Carrington,president of the Dallas Bar Association.

Judge S. P. Sadler of Dallas, formermember of the Commission of Appeals,recommended return to the general charge,and F. B. Walker, president of the FortWorth Bar Association, favored retainingspecial issues. Professor Wiliam W. Daw-son of Western Reserve University LawSchool at Cleveland, Ohio, compared thetwo sides and suggested a compromise ofimprovement.

Speaking on "The Federal Rules andState Procedure," Mr. Dawson expressedhis confidence in jury trials as bringing

to jurisdiction a practical, though in-tangible, element which otherwise wouldbe lacking. A basic reason for the confu-sion and uncertainty in Texas is the effortto apply coldly logical rules to jury delib-eration which does not follow such logicallines, he suggested. Tracing the evolutionof the jury system, Mr. Dawson commend-

TEXAS BAR JOURNAL 261

ed the practice of special verdicts, whenproperly simplified, as the best means ofsecuring a true verdict.

Brief addresses were given by Dr. Um-phrey Lee, president of S. M. U., AngusWynne, president of the Texas Bar Asso.ciation, and Associate Justice RichardCritz of the State Supreme Court at theannual lawyers' luncheon in Virginia HalL.

Dean C. S. Potts presided. Participatingin the Senior Case Club argument thatafternoon were Harvey Davis and Corne-lius Ryan, the winners; and Scott Milerand John Ennis. The nine-j udge court wascomposed of Judges Critz and John H.Sharp of the Supreme Court; C. S. Slat-ton and W. M. Taylor of the Commissionof Appeals; Joel R. Bond, B. F. Looney,and Towne Young of the Fifth Court ofCivil Appeals; Attorney General GeraldMann; and Judge Sarah T. Hughes of theFourteenth District Court.

Climaxing the three-day institute wasstudents' gridiron banquet in the AdolphusHotel, where Mr. Ennis, president of theStudents' Association, presided. Addressesby Judge Sharp and Professor Dawsonwere followed by the gridiron program, in

vvhich members of the faculty were"roasted."

BrownsvilleA. M. Kent, president of Cameron Coun-

ty Bar Association, acted as chairman at

a meeting of sixty members of the associa-tion in the civil district court room. F. W.Seabury, chairman of the local committeeon the rules of civil procedure, presentedthe committee's report.

The bar took the following action onquestions prepared by Judge Stayton andmembers of the association:

1. Adopting the new Federal Rules:approved as a basis for the Texas rules,with necessary changes and additions.

2. Abolishing the general demurrer:approved.

3. Abolishing the general denial andrequiring the defendant to admit or denyspecifically, not under oath, the plaintiff'sallegations: approved, but only to the ex-tent necessary to conform to the FederalRule.

4. Requiring the defendant to answertwenty days after service: approved forall trial courts.

5. Adopting some form of pre-trialprocedure: approved.

6. Providing that an appeal in a pleaof privilege case shall be advanced forhearing in the appellate court: approved.

7. Providing that where the verdict on

general charge or special issues requiresany kind of mathematical calculation, thejury may take with them when they retireto consider the verdict simple tabulated

forms prepared by counsel for each side,but without argumentative matter, show-ing by what computation the verdict oranswers desired by counsel could properlybe arrived at: approved.

8. Abandoning special issues: rejected.9. Making submission on special is-

sues discretionary with the trial court as

under Federal Rule 49: approved by avote of 16 to 5, provided discretion can

be adequately controlled by the new rule.10. Grouping in one issue several al-

leged acts of negligence or contributory

negligence where an affrmative finding oneither wil determine liability: approved.

11. Grouping inconsistent issues, aswhether employe was totally or partiallydisabled: approved.

12. Allowing the Court greater lati-tude in charging on the law applicable tospecial issues without violating the ruleagainst giving a general charge: approved.

13. Requiring the party complainingof failure to submit an issue or define a

term to tender a correct issue thereon: ap-proved, provided the requirement applyonly to the party having the burden ofproof on the issue.

14. Providing that failure to submit arequested issue shall not constitute re-versible error on appeal where an answerfavorable to the appellant to the requestedissue would be in conflict with any findingproperly made by the jury in answer tosome other issue properly submitted: ap-proved.

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15. Providing some manner to avoidsubmitting issues in the double negative:

approved.16. Permitting the Court or counsel

to inform the jury of the legal effect oftheir findings: approved.

17. Providing some solution of thequestion raised in Ormsby v. Ratcliff andWichita Ralls Railway Co. v. Pepper: ne-cessity conceded.

The solution adopted, as proposed byIV£r. Seabury, was that failure to requestsubmission of a particular issue waivesnothing but the right to a jury trial onthat issue, leaving its determination to theCourt; that if one party thus waives, the

other may require its submission to thejury; that request for submission of an is-

sue need not embrace a correct legal formfor question and answer unless the partyrequesting has the burden of proving theparticular issue; and that all issues not

submitted to the jury and not requestedare deemed as found by the Court in suchmanner as to support the judgment ifthere is evidence to sustain such a finding.

PlainviewMeeting in the county attorney's offc2

February 22, the Plainview Bar Associa-tion made the following recommendations:

1. That the Federal Rules be used asa general policy to guide the advisorycommittee in writing the Texas rules, pro-vided the blended system of law andequity is unaffected, and that Texas rulesbe retained when they are deemed simplerand more effcient.

2. That the present method of obtain-ing service by citation upon defendantsupon the institution of suits be preserved,but that the method of service of all sub-sequent pleadings or motions be as pre-scribed by the Federal Rules.

3. That the present provisions for de-

positions and discovery be preserved.4. That rules be adopted permitting

the summary entry of judgments by de-fault in all civil actions except divorce,

where the defendant has failed to answerwithin twenty days after service of pro-cess is completed.

5. That "no decision reached or opin-ion rendered by any appellate court of thisState inferior to the Supreme Court shallestablish any legal precedent or be re-garded as the law of this State in any caseother than the one in which decision isreached or opinion rendered, nor shall

such decision or opInion be released forpublication, be published, be quoted asbinding or persuasive authority, or be re-garded as the law of this State by anycourt, unless and until the Supreme Courtof this State shall have approved theresult and reasoning of the same; andwhen such decision or opinion shall, in re-sult and reasoning, have received the ap-

proval of the Supreme Court, such decisionor opinion shall be published as the opin-

ion of the Supreme Court, and shall haveequal dignity with all other opinions of

that Court."

6. That the foreclosure of real estatebe by judicial process only, held in thecounty in which the real estate is situated.

7. That justice of the peace courts be

eliminated, and their jurisdiction in law

matters transferred to the county court.8. That the county judge be a licensed

attorney, with at least two years of actualpractice.

9. That no case be reversed because ofso-called "fundamental error."

10. That no case be reversed by anyappellate court except for error specificallyand concisely raised and presented to thetrial court at the time such error was com-mitted.

11. That the court in which any case is

filed and heard be held conclusively toha ve jurisdiction, in the absence of specialpleading showing why the court is with,.out jurisdiction and pointing out whatcourt does have jurisdiction.12. That the general demurrer be

abolished and all objections to pleadings bemade by special exceptions or else suchobjections shall be conclusively deemed tohave been waived.

13. That the general denial be abol-ished and the facts alleged be deemedestablished conclusively in the absence ofspecial denial, which should be allowedupon information and belief, provided theparty making it has an actual and bona

fide belief that the pleading denied is nottrue.

14. That all appeals be made from the

action of the trial court in granting orin failng to grant a motion for a newtrial, and that no ground or error be pre-sented to or considered by an appellatecourt except such as contained in the mo-tion for new triaL.

Ample time, it was agreed, should begiven for filing and ruling upon the mo-tion for new triaL.