Iowa State Bar Association.

Annual proceedings, Volumes 16-20 online

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are not supposed to maintain them as a convenience for a few lawyers who
have huge soliciting organizations. By all means let the legislature give us

The foregoing appeared after many news items in the Minne-

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apolis and St. Paul papers relating to astonishing disclosures in
the month of April, 1915, concerning fraudulent methods of
personal injury lawyers in the Twin Cities. These news items
referred specifically to a certain case brought by one William B.
Chambers against the Illinois Central Railroad Company. In
this ease Chambers claimed that he had fallen from a freight
train by reason of a loose handhold. He was immediately solic-
ited by a certain St. Paul attorney, to whom he gave his case,
and an action was brought against the railroad company claim-
ing damages in the amount of $25,000. Chambers submitted
himself to the examination of certain physicians, whose names
were suggested by his attorney, and these physicians made a
diagnosis, finding that Chambers had trauma of the left kidney ;
displacement of said kidney; luxation of sacro-iliac articulation;
trauma and laceration of lumbar muscles; injured and swollen
left sciatic nerve; injured sacrum; bruised left sciatic nerve;
laceration and contusion of lumbar muscles and that he was
permanently disabled.

The case was called for trial. When the plaintifF was placed
on the witness stand, he surprised his attorney by reciting in a
very clear and forceful manner, how, as a matter of fact, he had
never fallen from the train, had never received any injuries of
any kind, was at all times normal, and enjoying the very best of
health not only at the time he was on the witness stand, but at
the time he was examined by the physicians whose names had
been suggested by the plaintiff's attorney. He then went on to
relate how the entire case had been pre-arranged. His story
concerning the manner in which he was solicited by representa-
tives of certain members of the Bar of the Twin Cities disclosing
the highly improper, unprofessional and dishonest conduct on
the part of these attorneys and physicians, ought to cause every
lawyer, interested in the good name of the profession, to use
every means at his disposal looking to the adoption of such rules
by the courts, and such acts by the legislatures, as would forever
preclude such practices.

Only a short time ago, a case was tried in Linn County entitled


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Howard i;. C, B. I. & P. Bj. Co. Plaintifl claimed be had re-
ceived injuries while performing his duties as a locomotive fire-
man. His physicians testified that he had received serious
injuries to the back and spine. He stripped before the jury and
the doctors pointed out the exact location of the injuries. Thej
demonstrated to their own pretended satisfaction tbat there was
a decided atrophy of certain muscles, although to the eye of the
ordinary man, eversrthing about the back looked not only normal
but especially strong and well developed. On cross examination
of plaintiff the entire fraud became so apparent, that his at-
torneys arose, apologized to the court and jury for having
brought the action, explained that they had been misled and
deceived by their client, and dismissed the case without preju-
dice. The plaintiff before working for the railroad company had
been a professional wrestler. When his case in Cedar Rapids
was ended he left Iowa and went to Nebraska. There he at once
engaged in his former profession of wrestling. He advertised
himself as being a marvel of strength and physical development
Fearing he might sue again in Nebraska or some other state on
the same alleged injury, he was carefully watched by special
representatives of the defendant railway company. His dis-
missal of his action in Cedar Rapids being without prejudice, of
course could not be pleaded as a defense, either in this or any
other state. In other words, the first trial went for naught, it
cost a considerable sum of money, and all this without any
redress, for plaintiff was financially irresponsible. He has not
yet brought another action, due possibly to the fact that he has
not been discovered by members of the ambulance chasing pro-

It is not uncommon to have an action for personal injuries
commenced in some court in Iowa and tried up to the i>oint
where the court is about to direct a verdict for the defendant,
when the case will be dismissed, and later, the same plaintiff will
sue the same defendant in some other state where he can secore
jurisdiction and prosecute the cause with the evidence either

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changed, or the evidence that was wanting upon the first trial

The statute of Iowa relating to the dismissal of actions pro-
vides as follows:

Seetion 3764. Dismissal or AcnoN. An action may be diBmiBsed, and
8a¬Ђh dismlBsal shall be without prejudice to a future action:

1. Bj the plaintiff, before the final 9ubm%sHon of the case to the jury,
or to the court when the trial is bj the court;

2. Bj the court, when the plaintiff fails to appear when the case is called
for trial;

3. Bj the court, for want of necessary parties, when not made according
to the requirements of the court;

4. By the court, on the application of some of the defendants, when there
are others whom the plaintiff fails to prosecute with diligence;

5. By the court, for disobedience by the party of an order concerning
the pleadings or any proceeding in the action.

One of the early cases in Iowa holding that a cause might be
dismissed without prejudice even after the completion of the
charge to the jury, is the case of Harris i;. Beam, 46 Iowa 118.
In that case the court had completed his charge to the jury and
defendant insisted that the cause had been submitted and plain-
tiff at such a stage in the proceedings was not entitled to dismiss.
Our Supreme Court held, however, that a cause is not finally
submitted to the jury when the last word of the charge is read,
and among other things, used the following language :

An attorney cannot always teU whether he can safely submit his cause to
the jury upon the evidence introduced until he hears the charge of the court.
If, in his judgment, the charge is so adyerse to him that he cannot safely
trust his case in the hands of the jury, he ought, at that moment, to be per-
mitted to dismiss without prejudice to a future action. The statute, in our
judgment, does not deny him that right.

Later, in the case of Belzor v. Logan & Canfield, 32 Iowa 322,
the attorneys for the defendant attempted to prevent a dismissal.
In this case the court said :

Our statute provides : An action may be dismissed, and such dismissal
shall be without prejudice to a future action: 1. By the plaintiff before
the final submission of the case to the jury, or to the court, when the trial
is by the court. This is construed to be equivalent to a denial of the right
to dismiss after such submission. It has often been held by this court, that

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under our statatee, the report of a referee was like, and had the same eiFcet
as, a Terdiet of the jury or a finding by the eonrt, and eertamlj the reason
which would deny a party the right to dismifls hia action after the final sab-
miBsion of hia case to a jury or to the court would also deny it to him after
he had made a like submission to a referee. But the trouble in this ^iew is,
that we must construe statutes and be confined to the language used, and
cannot extend them to anything and everything within the range of the
reason which prompted their enactment for the particular things specified
in them. The statute only enumerates two out of the three methods of trial
prescribed by it, a final submission in which will bar the right of the plain-
tiff to dismiss his action. The other method, a trial by referee, is not within
the terms of the statute, nor within any recognized rule for the construction
of the language used in it We cannot, therefore, hold that the plaintiiF
was concluded from dismissing his action by reason of the statute.

Aside from the statute, we find that a plaintiff might discontinue his
action at any time, except after verdict or writ of inquiry, without leave of

In 1890, another effort was made by attorneys for the Chicago
& North Western Railway Company to prevent such a dimnissal
in the case of Morrisey v. C. & N. W. Ry. Co., 80 Iowa 314. The
plaintiff had introduced all his evidence and rested. The court
had stated that he thought the motion to direct a verdict ought
to be sustained, and intimated that he would sustain it, but had
not yet actually written the entry in the calendar. In this case^
appellant contended that as the sustaining of the motion for a
verdict was in effect a final disposition of the case, that there was
a final submission of the case to the court before the plaintiff
asked leave to dismiss. The Supreme Court disposed of this
contention by saying:

Surely the submission of the motion was not a submission of the ease to
the court, for whether the motion was OTerruled or sustained, it remained
to submit the case to the jury for verdict. There was no final submission of
the case to either court or jury, and therefore no error in overruling de-
fendant 's objection, and aUowing plaintiff to dismiss.

The foregoing citations indicate that if any remedy is to now
be granted against this loose and unwarranted practice, it will
have to come from the legislature.

One of our Federal Judges at one time attempted to avoid the
effect of the Iowa practice, and did succeed in so doing, by re-

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fusing tx) announce his ultimate conclusion until he had in his
possession a directed verdict signed by a member of the jury.

To the ordinary mind, it is quite dificult to understand why a
cause has not been submitted, especially after all of the evidence
has been introduced and the court has reached a conclusion on
the motion to dii^ct. The decisions in this State, however, are so
well established, that if any relief is to be had, it must come from
the legislature. No rule of practice is more unbusinesslike and
more out of keeping with the spirit of the times, which looks for
efficiency and the dispatch of business, than the practice of per-
mitting dismissals without prejudice after all the evidence has
been introduced. It is not surprising that the average business
man, and indeed, the business world as a whole, is always aston-
ished when reminded that the courts indulge such a practice.
We, therefore, need not be surprised at the protest set forth in
the editorTal above quoted. It is hard for one who feels that the
courts should not be trifled with, and for one who believes that
the courts ought not be mere experimental tools, to realize that
any person responsible or irresponsible, may try his case as many
times as he desires, experiment in as many places and with as
many different courts as he chooses, and then dismiss at his
option, without any ultimate finding, decree or adjudication that
will protect the defendant from further embarrassment or har-
asi^ing litigation.

In recent years many cases in Iowa have been brought and
tried the first time largely as experiments. Recently a case was
tried in one of the district courts of Iowa, which was finally dis-
missed after the court indicated that he would sustain a motion
for the defendant. This same case was later brought in another
state, where it will be necessary for the defendant to transport
witnesses many miles, or be compelled to submit evidence in the
form of depositions. In the case now pending in the foreign
state, it is not possible to plead any form of adjudication by
reason of the former trial in Iowa.

In another recent case the trial judge at first refused to dismiss
at plaintiff's request, because the perjury and the fraud were so

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clearly apparent. The court discharged the jury but held the
motion to dismiss under advisement for two or three days before
finally entering a dismissal. In the meantime, he examined the
authorities to see if there was not some way that he could enter a
dismiHsal that would preclude another action by the plaintifiE,
and thus protect the defendant against the time, expense and
annoyance of defending upon a fraudulent claim, should action
be brought in another state or in another county.

A few years ago a case was tried in the Federal Court of the
Northern District of Iowa, Judge Willard presiding. At that
time Judge Reed was sitting with the Circuit Court of Appeals
in St. Paul. At the close of all the evidence, a motion was made
to direct a verdict for the defendant. The court announced that
he would sustain the motion, whereupon plaintiff's attorney
arose and moved to dismiss without prejudice. The motion was
denied. Later, however, the court corrected his ruling and
authorized a dismissal, saying when he did so that he would not
permit the dismissal if he could prevent it ; that he was surprised
to learn of the Iowa practice in this respect; that he objected
seriously to the Federal Court being used purely for the purpose
of experiments, and that if it was within his power to do so, he
would enter an order that would preclude the bringing of the
action again, either in the same or any other court.

There has also come to my attention a case that was tried some
time ago in the city of Council Bluffs. At the close of the first
trial, a motion was made to direct a verdict. The court was
about to sustain this motion, when plaintiff dismissed. Later,
action was brought again on the same claim, the thought of
plaintiff's attorney no doubt being that he might draw another
judge and thus indulge in another experiment with his case.
The case was tried a second time and at the close of all the evi-
dence the court again indicated that he would sustain defend-
ant 's motion to direct, whereupon plaintiff again dismissed, and
later brought suit on the same cause of action a third time.
Plaintiff's client was financially irresponsible and he was taking
no chances in making these experiments because he had nothing

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to lose. Defendant was responsible and was put to heavy costs,
both by way of attorneys' fees and expenses for witnesses in de-
fending in these trials on the same cause of action. As before
stated, it is not at all uncommon to find a case being tried in St.
Paul, against some railway company, that was previously on
trial in some court in Iowa, where it was dismissed after the
plaintifF learned that the court was about to direct a verdict for
the defendant. Many cases are of this nature, and instances of
this kind frequently arise. The defendant has no redress for the
expenses of the first trial, and in addition, is obliged to transport
its witnesses many miles into a foreign jurisdiction.

I have also had come under my observation, cases that have
been appealed to the Supreme Court of the State, reversed and
remanded for a new trial, with a rule of law announced that
might preclude a recovery, and upon reaching the trial court,
the case has been dismissed without prejudice, and action
brought in some other jurisdiction where an experiment might
be carried on with the mental processes of judges in some other

In one such case as this, the theory was advanced that after
the plaintiff had voluntarily submitted himself to the jurisdiction
of the court, and the law of his case had been announced by the
Court of Appeals, that that rule of law ought to be binding upon
the litigant in that particular cause of action, no matter where
the same case might be again instituted.

In this respect, permit me to call your attention to the case of
Wells v. Telegraph Co., 144 Iowa 605, at page 610. This was an
action that was tried in the Federal Court for the Northern
District of Iowa. Judgment was rendered for the plaintiff.
Upon appeal to the United States Circuit Court of Appeals, the
judgment was reversed. (See 129 Fed. 344.) Upon remand to
the trial court, the cause was again heard before the Honorable
Henry T. Reed, and a jury, resulting again in a verdict for the
plaintiff. Again an appeal was taken and again a reversal was
had. (See 141 Fed. 538.) The reversal on the second appeal
was upon a ground that would preclude a recovery in the Fed*

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eral Court. After the case had been remanded, plaintiff then
entered the Federal Court and dismissed his cause of action
without prejudice. A pretended assignment of the cause of
action was then made to a resident and citizen of the state of
New York. The assignee brought suit in the District Court of
Webster County of the State of Iowa, on the same cause of
action that had been twice tried to a jury in the District Court
for the Northern District of Iowa, and twice submitted to the
United States Circuit Court of Appeals for the Eighth Circuit.
No final judgment, of course, had ever been rendered against the
plaintiff in the Federal Court, although a rule of law had been
announced that would have precluded a recovery in that court.
In the state court it was ai^n^ed that the plaintiff was bound by
the rule of law announced in the Federal Court, inasmuch as he
had voluntarily submitted himself to the jurisdiction of that
court. It was urged that the courts ought not be used like a
chemical apparatus in a laboratory, merely for the purpose of
experiments. Our Supreme Court disposed of this contention by

It is said, however, that these opinions settled the law of the case, and are
binding as such. This is trne in part. They do settle the law of the ease
for all purposes of trial in the Federal Courts, the opinion on appeal being
eonclusive on the trial eonrts in further proceedings had therein; but, as no
further proceedings were had, these decisions are of no more weight with us
than if they had been rendered hj any other court of a foreign jurisdiction
in cases to which these litigants were not parties. There can not well be
much doubt about this proposition on principle and the authorities seem to
point to but one conclusion.

Under the Iowa statute and the Iowa decisions, therefore, the
plaintiff may sue as many times as he chooses, and each time if he
thinks the result is not going to be favorable, he may dismiss,
and so on without end, until finally barred by the Statute of
Limitations. He may even follow his case through the Supreme
Court of the state, receive an adverse ruling on the propositions
of law that would preclude a recovery, and then, upon remand of
the case to the trial court, dismiss without prejudice and seek
relief in some other jurisdiction, before some other tribunal that

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may hold a diflPerent view of the law, or in which other tribunal
he may be able to produce facts which he has discovered are
necessary, after reading the opinion of the court. To my mind,
this practice ought to be prohibited. It not only casts reflection
upon the dignity and stability of our courts, but it lends encour-
agement to perjury and subornation of perjury. Not long ago
one case came back to the Supreme Court of Iowa in which the
evidence was clearly changed upon the re-trial and the Supreme
Court commented upon the fact of the change in the testimony
and denied a recovery. There can be little doubt but that this
change in the testimony was due to an effort on the part of the
plaintiff to meet the ruling of the court. In the latter case to
which I refer, a rule prohibiting dismissal without prejudice at
the will or pleasure of the plaintiff would not have prevented the
perjury, for in that case no dismissal was entered. The plaintiff
did not elect to dismiss. Invoking a rule, however, that would
prevent such dismissals would eliminate one opportunity for the
practice of the evil. It is commonly known among the members
of the Bar that cases are dismissed without prejudice and started
again, and upon the second trial, evidence is supplied that was
suggested by the court and that no one ever knew existed, and
that, in fact, did not exist except in the mind of the client, pos-
sibly indirectly inspired by suggestions from his attorney.

If the plaintiff after having submitted himself to the juris-
diction of the court, is denied the privilege of dismissing his case
without prejudice, after all the evidence has been submitted and
the time of the court and the jury and all the court ofScials and
the attorneys consumed, no harm can come to him except the
inconvenience and time required to perfect an appeal and have
his questions of law submitted to the Supreme Court. Certainly,
what inconvenience there may be to the plaintiff in prosecuting
an appeal to the Supreme Court from an alleged erroneous de-
cision sustaining the motion to direct a verdict, cannot begin to
compare with the great inconvenience and loss to the defendants
ivho are harassed and annoyed by plaintiffs who experiment
with their cases in the nisi prius courts of this state. In fact,

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we have a strange anomaly in our statutes and under our de-
cisions. A plaintiff may dismiss at any time without prejudice^
and again bring his action whenever and wherever he pleases,
whereas under our statute, he is not permitted to continue the
same cause of action against the objections of the defendant
without complying with certain statutory requirements, filing a
certain form of affidavit required by statute, setting forth statu-
tory grounds for entitling him to a continuance. If, however, he
is unable to comply with the requirements of the statute relating*
to the grounds or causes for a continuance, he may avoid the
same by dismissing without prejudice and again starting the
action, either in the same court or in any other court where he
chooses to experiment.

Personally, I feel that one immediate step which the Bar
Aissociation of Iowa ought to take looking to a reform in its civil
procedure, is to secure an amendment to Section 3764 of the
Code of 1897, that would at least confer discretionary power
upon the trial judge to deny a motion to dismiss without preju-
dice. If such an amendment were enacted it would go far toward
abolishing the present practice of perjury that is so prevalent in
the trial of personal injury cases. It would remove our courts
from the realm of experiment stations. It would expedite busi-
ness and relieve our dockets by requiring thorough and complete
preparation for the first trial of the cause, and would add dignity
and importance to the decisions of the trial courts, which now
they do not seem to possess. It is commonly known that a de-
cision in any one case, even by the Supreme Court of the State,
is not binding upon the plaintiff in case he selects some other
jurisdiction to try the same cause. Our present practice enables
a plaintiff to adopt a process of experiments and to dismiss in tiie
nisi priiLs courts, to the great loss and damage of the taxpayers
who support those courts, and to the annoyance, embarrassment
and financial loss of the defendants, who may be thus constantly
subjected to retrials, with no final adjudication, and no ultimate
relief until rescued by the Statute of Limitations.

We talk much about legal ethics but we don't always enforce

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ihem. The majority of lawyers have high regard for the ethical
standards of the profession, but the majority of people misjudge
the Bar as a whole by the misdeeds of the few. The confidence of
the public in the indestructible integrity of the lawyer is hia
greatest asset. Therefore we cannot too jealously guard the
honor and dignity of the profession. To do this, we ought not to
pass over lightly the misdoings of the few, for thereby we injure
the welfare of the many. The disreputable ambulance chaser of
St. Paul, or Waterloo, or Cedar Rapids, or any other community,
casts a shadow over the Bar as a whole, just as the doctors who
'^ discover" neurasthenia in perfectly healthy patients tend to
bring discredit to the entire profession of the community in
which they live and move, and rob and steal by means of a
weapon called perjury, which to say the leasts is a more cowardly

Online LibraryIowa State Bar AssociationAnnual proceedings, Volumes 16-20 → online text (page 47 of 56)