Law in a Time of Pandemic
How Texas courts and lawyers responded to the pandemic of 1918-1920
Written by Stephen Pate
William Faulkner once wrote, “The past is never dead. It’s not even past.”1 He was correct. Today, because of the coronavirus, Texas lawyers are faced with quarantines, court closures, continued trials, and more importantly, the illness of colleagues. As horrible as this pandemic is, we should remember that this situation occurred before, during the so-called “Spanish flu” pandemic of 1918-1920.
Spanish flu was a global pandemic. Almost 50 million people died worldwide in a world already ravaged and weakened by World War I.2 In the United States, an estimated 25 million—some 25% of the population—had the disease; over 550,000 died.3 Even President Woodrow Wilson was infected while at the 1919 Paris Peace Conference. The most prominent Texan infected was Wilson’s closest adviser, Col. Edward House, who had the illness three times.4 Almost 106,000 Texans were victims. Eventually more than 2,100 would die.5
The Spanish flu’s first wave, which began in March 1918, was brief, and perhaps the advent of warmer weather contained it.6 The next wave struck the world in fall 1918. This was the deadliest wave and lasted in virulent form for some four to six weeks.7 It was this second wave that would wreak havoc on Texas courts, and indeed, all of Texas. Wartime conditions fostered the flu’s spread. In the U.S., this second wave began in an army camp in Massachusetts. By mid-September 1918, soldiers at several Texas military installations were ill. The disease quickly jumped to the civilian population.8
Sadly, public awareness of the pandemic was slow in coming. In those months, the front pages of Texas’ newspapers were full of stories about the end of the Great War and Germany’s impending defeat. Yet by mid-October, the growing number of cases could not be ignored. On October 16, San Antonio was put under quarantine.9 Houston barred public gatherings, and Dallas closed “places of public amusement.”10
Courts began to close in October—but not all of them and some with much reluctance. In Fort Worth, lawyers themselves forced the issue. On October 21, 1918, the Tarrant County Bar Association met and unanimously passed a resolution to adjourn all courts until the flu epidemic had subsided. A committee of three then notified all four state judges of the resolution—and all four recessed their courts. One court was impaneling a jury when it received the resolution and immediately adjourned. The criminal district court dismissed a venire panel of 200.11 In Austin on October 25, Travis County District Judge George Calhoun announced a postponement of jury trials for a week based on advice from the health board and different physicians. Judge Calhoun did this despite having been told (quite wrongly) that “the epidemic is beginning to wane[.]” He said that “the fact remains those who have had [the influenza] are yet carrying and it would be next to impossible for the crowd that will assemble at the courthouse Monday should court be held to be free altogether as carriers.”12 Both federal and state courts adjourned in El Paso in October.13 Smaller counties were not exempt. In Ballinger, a murder trial was already under way when the trial judge adjourned it until the next term.14 In rural Bowie County, trials were adjourned from October until November.15
Some federal courts remained open even as state courts closed.16 In Dallas County, jurors already hearing cases were allowed to vote regarding whether to recess their trials in light of the pandemic. They voted 27 to 24 to continue.17 Some judges still conducted non-jury trials.18 Even so, many courts that wanted to go forward simply could not. In Travis County (before Judge Calhoun ordered a postponement), 10 potential jurors out of 60 summoned could not appear because they had the flu.19 In San Antonio, just before the quarantine, both the fact that potential jurors were in the Army and others were sick depleted the venire panels.20 Obviously, many summoned for jury duty were not reporting because of fear of contagion. In El Paso, Judge W.D. Howe solemnly warned a jury panel not to dodge jury duty.21 The Dallas Morning News wrote, “Judges find it difficult to get cases to trial. Often witnesses can not be found. At other times lawyers can not be present.”22
The pandemic did not exempt the judiciary from its victims, and this put more strain on courts that did stay open. By late October, Judge Calhoun was handling the duties of all three Travis County district courts because one judge was on war duty and another was suffering from what many called “La Grippe.”23 Eventually Texas’ federal judges paid the price for having kept their courts open. Three of the four Texas judges contracted influenza and could not hold their regular terms of court. Only Judge DuVal West, of the Western District, carried on, and he was holding court in every district in the state and for every judge.24 Judge West was an avid and hardy outdoorsman; there are those who would say this aided him in his immunity to the disease.
How did the appellate courts fare? On October 5, the U.S. Supreme Court went into recess because of the epidemic.25 Nevertheless, all three of Texas’ highest courts—the Supreme Court, the Court of Criminal Appeals, and the Commission of Appeals—met on October 7 to begin their terms of court. Noticeably absent from the proceedings was Texas Supreme Court Chief Justice Nelson Phillips, who had left for Troy, New York, the night before after he learned that his son, Lt. Nelson Phillips Jr., had taken ill with influenza at his Army posting.26 We know that the son fortunately survived; after Justice Phillips left the bench, father and son practiced law together for many years.27 Despite absence and illness, Texas appellate courts soldiered on in issuing decisions.28
As has happened today, some lawyers saw a way to generate business from the pandemic. In early December 1918, this headline appeared in the Austin American Statesman: “Chance for Damage Suits Looms Big Say Texas Lawyers.”29 The accompanying article noted that attorneys were discussing the “revival of the damage suit industry” in Texas because of the flu. The theory was that owners of theaters and other public gathering places owed a duty to the public to keep their premises safe and influenza free.30 A review of caselaw, however, reveals no appellate decisions on this point.
In Texas, the pandemic crested in October 1918.31 Thereafter courts, though understaffed, reopened and remained open despite flare-ups that occurred throughout winter 1919. After that, the pandemic subsided, though some new infections continued into 1920. The last deaths occurred in March 1920.32 The flu’s disruption of Texas courts had been brief, but troubling. TBJ
STEPHEN PATE is the executive article editor of the Texas Supreme Court Historical Society Journal and a trustee of the society. He is a partner in Cozen O’Connor in Houston. Pate is a member of the American Law Institute, the American Board of Trial Advocates, and a regent of the American College of Coverage Counsel.