TXI Transportation v. Huges--A Page Of History
I love old cases. There is nothing better than a dusty case from a creaky, leather-bound book to demonstrate, “I’m not only correct now. I have been correct for 120 years.”
So imagine how my pulse quickened when I read Don Cruse’s summary of TXI Transportation v. Hughes (pdf) on the Supreme Court of Texas Blog in which the Supreme Court held that repeated references to the defendant's immigration status constituted harmful error.
The quotation Don excerpted from the opinion contained this little gem in the middle of a string cite:
. . . see also Moss v. Sanger, 12 S.W. 619, 620 (Tex. 1889) (“Cases ought to be tried in a court of justice upon the facts proved; and whether a party be Jew or gentile, white or black, is a matter of indifference.”) . . . .
Eighteen Eighty Nine! That’s string cite gold!
After the jump, see the story behind this old case and learn why you ought to be proud of your Supreme Court of Texas.
Moss v. Sanger has very high-minded language for its time. In 1889 when it was decided:
- Texas was less than 30 years removed from the time when owning another human being was legal.
- The Texas branch of the NAACP was still about 30 years from forming its first chapter.
- And Texas would have 468 lynchings between 1885 and 1942
So where did that high-sounding language come from?
As it turns out, Moss could have been a mundane case about debt collection. And like TXI Transportation (pdf), Moss is the classic harmless error case. The winner prevailed on a general charge and the Court recognized that evidence of one of the grounds in the charge preponderated mightily in favor of the verdict. The Court could have ducked the question.
So, what kept the court from ducking? Plain and simple, it was the horrific closing argument. The Court quoted the offensive portion of the attorney's argument:
This entire business is a concocted scheme from beginning to end; a deliberate scheme to swindle and defraud, gotten up by a Jew, a Dutchman, and a lawyer. Who are the parties at interest? A. Moss; his wife, Rose Moss; his mother, Mary Moss; his clerk, D. Golden; and then, B. Frieberg, the old he-Jew of all, who, no doubt, planned the whole thing. All Jews, or Dutch Jews, and that is worse. Will an honest jury of Ellis county (sic) let these people, (pointing at A. Moss, Golden, and Raphael,) whose every thought is how to cheat and swindle, perpetrate this infamous and outrageous fraud? I think not.
The quotation set out by the Court spoke for itself. Without need to cite to any authority, the Court condemned this appeal to racial or ethnic animus. Even in 1889, the Court ruled that:
Cases ought to be tried in a court of justice upon the facts proved; and whether a party be Jew or gentile, white or black, is a matter of indifference.
And Moss v. Sanger continues to speak. It has been cited by the Supreme Court twice in the last two years: once in TXI Transportation (pdf) and once in Living Centers of Texas, Inc. v. Penalver.
Indeed, Moss now speaks from a court where a majority of the nine justice, for reasons of gender or ethnicity, would not have had the opportunity to serve in 1889 when Moss was first decided.
Moss is an old case that sounds better all the time.
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