TEXAS BAR JOURNAL 143

Lawyers Tell Vie.ws on Rulesiderable difference of opinion wased on proposed rules of civil pro-at the legal institutes held in Texasch. The institutes were well-attend-

a rule, and lawyers expressed them-freely on the changes to be recom-

d to the Supreme Court's advisoryittee. Questions of submission to the

onopolized most of the discussions,pinion being aIm 0 s t unanimous

st return to the old general charge,

ugh most of the lawyers favoreddegree of amendment of the specials statute.

stitutes on rules of civil procedure

conducted by Preston Shirley of Theersity of Texas in Eastland March 9in Big Spring March 23, by Judges P. Alexander of Waco in San An-March 15-16 and in Tyler March 30,

by Roy W. McDonald of S. M. U. inne March 16. Earlier in the month,ings we r e he 1 d in Longview andnwood, with members of the advis-

committee leading the discussions.ore than twenty legal institutes haveheld in Texas since January, a recordassed by no other state in a year,s G. Wynne, advisory committeeman, has announced. Approximatelyty-five more wil be held. Nuecesty Bar Association plans an all-day

tute to be conducted by Judge RobertStayton of The University of TexasApril 13 in Corpus Christi. Mr. Shir-il lead an all-day session for Travis

ty Bar Association in Austin AprilThe three-day institute in Dallas1 18-20 wil be given through the com-

d efforts of S. M. U. and the Dallas ands Bar Associations. Other April meet-wil be conducted by Judge Staytonacogdoches and Seguin, and Judgeander in Beaumont and San Angelo.e Eastland institute asked that aschanges as possible be made in theedural statutes. Federal rules as a

for the rules in Texas were opposedrownwood and Eastland, and lawyerse Abilene meeting voted that they be

only as far as practical in Texas,ided they are limited to trial courtedure. They were discussed at length

in San Antonio, but no vote was taken.Pre-trial procedure was favored in Brown-wood and San Antonio, but the Eastlandinstitute opposed the pre-trial system fol-lowed in federal courts.

On the question of pleading, Abilenefavored retention of distinction between

statements of fact and legal conclusions.

San Antonio voted 44 to 38 to retain thegeneral demurrer and 49 to ...33 againstabolition of general deniaL. It was pro-posed in Eastland that the general denial

should have the effect only of joining issueon the allegations of the plaintiff's peti-tion and that all affrmative issues assert-ed to or to be asserted by the defendantsby way of defense to the alleged cause ofaction must be specially pleaded by thedefendants. A requirement that the gen-eral demurrer be filed to point out specifi-cally the reasons relied upon was askedby the Abilene institute.

San Antonio lawyers were against lim-iting the plaintiff's reply argument toone-fourth of his opening argument timeand opposed the suggestion that in pleasof privilege an appeal should suspend thetrial on the merits, and that a speedy ap-

peal as in temporary injunctions shouldbe provided. It was the consensus at that

meeting that granting of new trials be-cause of misconduct should not be abol-ished, but that modification of the rule to

provide that the court would grant a newtrial only if it appeared from the record"as a whole" that the party complainingwas injured by the misconduct should beincorporated in the new rules. Lawyersattending the San Antonio institute op-posed requiring bond for costs or pau-per's affdavit fro m plaintiff's attorneywhere he has a case on a contingent fee,and voted that filing of a pauper's oath

should be prima facie evidence, the burdenof proof to be on the plaintiff to establishby evidence his inabilty to secure thecosts where contested.

V oting unanimously against returningexclusively tò the old general charge, the

lawyers at Abilene were opposed two-to-

one to allowing the cou.rt to submit a com-bination general verdict and special issuecharge, as under the federal rules. They

144 TEXAS BAR JOURNAL

Lawyers at the San Antonio meeting, above and on Page 145, spent two days discussing federal rules,issues, and pre-trial procedure. Judge James P. Alexander conducted the institute.

favored unanimously adding to the ruleconcerning definitions of legal terms aprovision that no definition should reversethe case because it happened to be in thenature of a general charge if it were cor-rectly worded. San Antonio concurredin this opinion.

Eastland wanted to have the jury passon fact questions alone and dispense withdefinitions by the court of legal proposi-tions. It was argued that we have a joint

submission rule resulting from distortionof the law providing for special issues andgeneral charge. The law must be amended,the lawyers believed, to restore its origi-nal meaning. They asked also that uncon-troverted issues of fact, as found by thecourt, be submitted to the attorneys bythe court before the case goes to the jury.Should either party contend that the evi-dence on anyone or more findings is notuncontroverted, it was the consensus thatthe opposing party should object to suchfinding of the court, and the proponent,having the objection, must present tothe court a proper issue upon the point

and request its submission.

It was proposed at the Eastland meet-

ing that on th e submission of specialissues, the court should submit all materialissues, as under the present statute, butthat if any material issue should not be

submitted, the duty should be upon theplaintiff to present and request the sub-mission of a proper issue, should it benecessary to his cause of action, and thatthe defendant should present and request

the submission of any issue constitutingan affrmative defense to the plaintiff'scause of action. In either case, failure ofthe party to present such an issue to thecourt and request its submission would

constitute a waiver.The part of Article 2190 of the Revise

Civil Statutes dealing with presumed findings in support of the judgment shoulbe repealed, Eastland lawyers believedtaking along with it the recent case 0Railway v. Pepper. San Antonio took thopposite view, accepting the interpretation of the case as stated by Judge Alexander. It was to the effect that if a grounof recovery or ground of defense is whollomitted, it is waived, but if any issue isubmitted that is necessarily referable ta ground of recovery or ground of defense, and one or more issues are omittedthe omitted issue or issues is not waived

so that if the court determines to rende

judgment on the ground of recovery or defense involved, the judgment can stanupon the presumption t hat the courfound the facts involved in the omitte

issue or issues in such manner as to suport the judgment rendered.

A thorough discussion of Article 219was entered into at the San Antonio insttute, with numerous amendments suggesed. La wyers opposed grouping into 0question several ultimate issues in neg

gence and compensation cases, but aproved submission of two inconsisteissues in one question, such as wheththe defendant is totally or partially diabled. They wanted to amend the Artieto require a party complaining of the faiure to submit an issue or define a termtender a correct issue or definition, bopposed amendment to provide that faiure to submit a requested issue shounot constitute reversible error on appewhere an answer favorable to the appelant to the requested issue would be .

conflict with any finding properly ma

TEXAS BAR JOURNAL 145

e jury in answer to some other issue

erly submitted.animous approval was given to theestions to amend Article 2190 to avoiditting issues in the double negative,

o retain the part of the Article whichits a party to object that an issue isupported by any evidence, even where

as requested the issue.s I see it, there are two reasons forpresence at this legal clinic," V. T.erry told the lawyers at the Eastlandting. "The first is self-preservation.

second is pressure from public senti-t. Weare trying to make the practicehe average lawyer a smoother job, tothe shyster out of the profession by

'ng the standard of the entrance re-

ements and by having disbarmenteedings with teeth in them, and toulate and retain public sentiment fa-ble to our work as public servants, tond that the tax-paying citizens may

n respect the courts, the judges, andawyers and look upon courthouses astuaries of law, order, and timely jus-rather than playgrounds for lawyers.

e have learned by bitter experience

if ours is to be a profession rather

a trade, we must, as thinking pro-onal men, preserve it as such." Mr.erry, an Eastland attorney, was in-iced by Chairman P. Edward Pondereetwater, director of the Texas Bar

ciation.e Sweetwater meeting for lawyers ofentral part of the Eleventh Supremecial District also was presided overr. Ponder, and E. M. Overshiner was

elected secretary. Speakers were Mr. Mc-Donald, who conducted the institute, J. M.Wagstaff of Abilene and J. Cleo Thompsonof Dallas, members of the advisory com-mittee on the State Bar Act, and Dallas

Scarborough of Abilene, member of theadvisory committee on rule-making pow-er. Mr. Thompson spoke briefly on theobjects and aims of the State Bar Act,and Mr. Wagstaff reminded the lawyersof the importance of returning the ballots.

In the discussion of adoption of the fed-eral rules, T. J. McMahon of Abilene ex-pressed strong opposition to their use inappellate courts. Federal procedure is ~x-pensive and virtually prohibits appeals bypoorer persons, he declared. E. C. Yates

spoke in favor of the rules, emphasizing

the desirabilty of uniform procedure instate and federal courts. The meetingado p t e d the following resolution pre-viously passed by Travis County Bar As-sociation, but added the clause in italics:

"It is the sense of this association that

the Supreme Court's State-wide Rule-making Committee give careful study andthought to the rules of civil procedureheretofore promulgated by the U. S. Su-preme Court to the end that the Staterules be made to conform thereto, withsuch changes, eliminations, and altera-tions as said State-wide Committee mayconsider an improvement thereon, butthat such adoption be limited to procediirein the trial court."

The San Antonio meeting began with aluncheon in the Gunter Hotel, where Mr.Wynne spoke on "The Proposed NewRules for Governance of the State Bar."

146 TEXAS BAR JOURN AL

The institute was held on the afternoon ofMarch 15 and the morning of the follow-ing day. Numerous opinions we l' e ex-pressed on the subject of abolishing the

general denial at the first session, some ofthe members contending that adoption ofthe federal practice would result in cut-ting down the size of the record by elimi-nating much evidence and testimony onuncontested fact issues which result ifone is required to admit or deny specifi-cally the averments in his opponent'spleading. Others believed that the generaldenial should be retained but that the fed-

eral rule permitting one party to call onthe other for admissions should be adopt-

ed. Prevailng opinion, however, held that

the present form should be retained, thesituation having been found to be unac-ceptable w hen the general denial wasabandoned from 1913 to 1915.

Much of the San Antonio institute wasdevoted to special issues discussions. Thelawyers voted against making any changesin the manner in which the issue of un-avoidable accident or sole cause is raisedby the pleadings in evidence or as to the

form of submission of such an issue to thejury. It was brought out that the plaintiffwould argue to the jury that it was un-reasonable and ridiculous to consider thatthe accident was unavoidable if the courtdid not submit the question to the jury for

determination. Other arguments againstchanging the present system were that itwould be a temptation to the court delib-erately to refrain from submitting suchissues in the event that affrmative find-

ings were made by the jury on submitted

issues that were inconsistent with theomitted issues. o

Courts Adjourn April 22For Austin Institute

Austin's three district courts wil ad-journ April 22 for the Travis County BarAssociation institute on rules of civil pro-cedure, Judge Ralph Yarborough, presi-dent, has announced. They have rear-ranged their dockets to be called the fol-lowing Tuesday.

Preston Shirley of The University ofTexas School of Law wil conduct the in-stitute, which begins at 10 o'clock. Thedate was set for Monday instead of Sat-urday to enable lawyers from surround-ing counties to be present.

Corpus Christi MeetingIs Set for April i 3

Judge R. W. Stayton, professor ofat The University of Texas, wil con

an all-day institute on rules of civilcedure in Corpus Christi April 13.sions wil be from 9 to 12 and from 2o'clock. All lawyers of Nueces androunding counties have been urged totend the institute and the banquet tnight.

The tentative program for the mornisession provides for discussion of ado

ing the new federal rules, abolishing tgeneral demurrer, abolishing the gene

denial and requiring the defendant to

mit or deny specifically (not under oatthe plaintiff's allegations, requiring

defendant to answer twenty days aftservice, adopting some form of pre-triprocedure, providing that an appeal in

plea of privilege case shall suspend a trion the merits, and providing for the avancement of the hearing of appeals 0pleas of privilege in the appellate court

A general discussion of the special isues question wil take place at the afternoon meeting, with particular attention tthe following amendments to Article 2190to abandon special issues; to allow grouping in one issue of several alleged act

of negligence or contributory negligene

where an affrmative finding on either onwil determine liabilty; to group inconsistent issues, such as whether the employe was totally or partially disabled; tallow the court greater latitude in charg-

ing on the law applicable to special issuewithout violating the rule against giving

a general charge.

Also, to require the party complaining

of failure to submit an issue or define a

term to tender a correct issue thereon;

to provide that failure to submit a re-quested issue shall not constitute reversi-ble error on appeal where an answer fa-vorable to the appellant to the requested

issue would be in conflict with any find-ing properly made by the jury in answerto some other issue properly submitted;to provide some solution of the questionraised in Ormsby v. Ratcliff and WichitaFalls Railway Co. v. Pepper; and to pro-vide some manner to avoid submittingissues in the double negative.