The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1900-09-30

very general prevalence OF the methods ru-
ferrcd &c certainly does not excuse or JUSTIFY
their existence IAN error Is not the better
for being common says Locke. nor truth
the worse for having been neglected"
But tho legislature has gone even further,
and after creating new liabilities for the rail-
road companies TO satisfy, aud then denying
them Ia many instances the right or OPP
portunity OF voluntarily satisfying them, has
held out Inducements to the majority OF per-
sonsl Injury claimants and their attorneys
to resort TO the ccurta, have placed premium
on speculation through the courts by requir-
ing no deposit OF security for costs, where
plaintiff makes an affidavit that he is unable
to make n deposit or give security In lieu
thereof. In majority OF such cases the
plaintiffs attorney has. by assignment and
transfer. an undivided one-half interest m
and is really the beneficial owner, OF one
half OF the cause Of action, and In many cases.
rs abundanily able TO give security for costs ,
yet our courts do not generally require him
to do 80. The result Is, that II not infrequent-
lily happens that suits are filed which are
without any real merit, In which the
PLAINTIFFS attorney has no confidence, and tho
plaintiff and his attorneys engage In de-
iibeiate speculation at tho expense OF the
defendant and the officers OF the court. II
he happens to get verdict and Judgment In
tho trial court. which is reversed on appeal,
he eau there Ole an affidavit that he is unable
TO pay the costs OF appeal, and the mandate
will nevertheless issue upon his application.
That many OF these affidayits OF inability
10 give security for costs are untrue In fact,
there can be no doubt ! have In mind a
case in my own experience where contested
such mn affidavit. and after proving by
plaintih himself that he owned several thous-
and dollars worth of property and that his
income from rents amounted TO some $50 OF
4 $40 per month. the court sustained the contest
and required the plaintiff to give security.
whereuron the plaintiff produced from his
rocket roll OF bills and made the deposit re-
CURED When asked as to why he made the
affidavit in question. no replied that his at
torney advised him to do so. In that partic-
"A
fendant. and II was gratifying to know that
the plaintiff paid tho costs.
| venture the assertion, in which am sure
the clerks OF courts throughout the State
will bear me out. that the majority OF suits
Z In which afidavlts "in forma pauperis'' are
fled arc those instituted against railroad
companies growing out OF personal injuries
or deaths; and venture the further assertion
that very many of these suits would never
be filed II such of plaintiffs attorneys as arc
able TO give security for costs were required
to do so as condition to acquiring con-
tingent interest In the alleged cause OF action
declared upon
Again, in Texas we have practically nc
rules of pleading and practice, The merest
tyro can prepare petition In an action fov
damages, which will seldom be held bad or
general demurrer, and special demurrers and
exceptions only serve to educate him and
teach him how TO make out hts case. If Z
lplainun were required, not only in cases OF
the character under consideration. but in al
others as we'll to state specifically under
Oath the acts OF negligence upon WHICH NJ
relies to hx liability. and should then b'
Irequired TO stand by his guns and not change
front every time the defendant meets hin
on his own ground, such practice would
tend to make the pcader more careful in thu
first instance and render impossible th'
amending OF the testimony to fit the amended
case.
As illustrative of the hardshps imposed
upon the defendant in this character OF It'll
cation under cur present system of pleadinl
and practice / instance a case in which th'
rlaintln recovered judgment on tho eyi
dence introduced by him. which supported
the allegations in his petition. on appea
the court of civil appeals reversed this judg
nlent oil the facts. Plaintiffs counsel applied
10 tho supreme court for writ of error
averring in substance that they had In thei
petition pleaded the best case they coul
make. and had supported that case by al
the evidence they could produce. Upon tb
case being by tho supreme court sent bacl
, to the district court, an amended petitlo
was filed and different cause OF aetio
set up which was in due time supported b.
evidence, not only different from, but con
tradictory to that given on the hrst trial
Uader tho amended petition, supported b
the amended evidence. another verdict wa
rendered in plaintiffs favor, which the de
! PENDANT was required to pay, notwithstand
, ing the quasi judicial admission made by tn
, plaintiff before the supreme court, on appli
j in effect that under the decision of the eour
of civil appeals he had no case.
A rule requiring the verihoation or a.
nleadings of both parties, and providing tina
all allegations not specifically denied 9
avoided should be taken as confessed, woul
not only dispense with the necessity OF in
: Producing much foreign testimony concern
:, ing matters about which there can be n
controversy but would also close an avenu
through which fraud may enter, and ten
to promote the ends OF justice
In suits between individuals, either part
: may by taking the eX~parte dispositions
his adversary. compel him not only To dis
= close his case or defense. but require hill
"a to commit himself under oath to preVef
: a change OF front; but the legislature hai
by the act OF 1897, restricted this right in in
p, dividuals, denying II to railroad oomphnie
and other corporations. Tho passage oil I'M
= act. therefore, renders some such reior
! In our system of pleading and practice as
q here suggested. all the more necessary
y suits to which corporation is party,
!, Our practice restricting and limiting tri'
= Judges In the manner of charging jures, pre-
> hiblting them from commenting upon Il
!. evidence or from following the very sensb
y and satisfactory practice Of summing up,
, has resulted in reducing the judges TO pr
y lparlng in each of this class OF cases a orl'
y essay In abstract terms, defining negligenc
). contrbutory negligence, the law OF fellow
, servants, or assumed risks, etc, with mo
: general charge on the measure of damage
: witch in effect amounts to directing Il
U Jury that II they find for the plaintiff, the
'e shall assess his damages at such a SUM I
y they see fit. II the judges were allowed
e little more latitude and discretion In fran
,, ling their charges they could make the jul
~ understand the law as applied to the fac
> in the particular case before them; whi
under our present system tho average oharl
10 u.s. to the average juror, wholly unintelligipl
/ and the result is, he Is set adrift upon 81
ID unknown 10 him, without chart or compass
10 and being forced TO assume the entire
10 gponsibility for the determination OF cas-
lie with little or no assistance from the JUG
ID his natural inclination in the class OF cas-
: under consideration is to resolve a1y dou
ID that he may entertain in favor or U
% plaiDtift -
l. II is a matter OF common knowledge IN
y the average juror does not arrive at u
z verde. by any very complicated process
D reasoning. 1t is a rare exception mat
% juror analyses the facts in given case 81
al applies or seeks to apply TO those facts Z
TO charge which he receives from the court. ~
lie result is that the jury becomes the judge
e. both the law and the facts. This could,
o. a measure at least, be avoided, and justice
al moro nearly accomplished by requiring Ut
J. Judge to submit cases OF this clglracler
~ the Jury on special issues, with proper ge
is eral instructions, requiring the Jury 10 cal
~ gorically answer the special Issues so 81
10 mitted. My observation and experience D
re been that this practice, more nearly IN
10 say other. results in the Jury honestly Q
serminng all controyerted issues OF II
~ without attempting TO forecast what
~ legal effect OF their findings may be- ~
DC is the only practice through which IL Is pc
or sble TO carry into effect the theory OF o
D. laws. that the jury shall be the judges