25 S.E.2d 352 (Va. 1943), 2658, Robertson v. Commonwealth

Docket Nº:2658
Citation:25 S.E.2d 352, 181 Va. 520
Opinion Judge:Eggleston
Attorney:E. Randolph Williams and T. Justin Moore, for the plaintiff in error.
Case Date:April 26, 1943
Court:Supreme Court of Virginia

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25 S.E.2d 352 (Va. 1943)

181 Va. 520





Supreme Court of Virginia

April 26, 1943

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[Copyrighted Material Omitted]

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[181 Va. 526] E. Randolph Williams and T. Justin Moore, for the plaintiff in error.

Abram P. Staples, Attorney General, and Edwin B. Jones, Assistant Attorney General, for the Commonwealth.



This writ of error granted under the authority of Code, section 4932, brings under review a judgment whereby Archibald G. Robertson, an attorney duly qualified and licensed to practice in the lower court, was held to be guilty of contempt for refusing to obey an order of the court, while testifying in a case therein pending, and was fined the sum of $100.

The incident which led to the judgment under review arose in this manner: Benjamin F. Goodson, while a passenger on a street car owned and operated by the Virginia Electric and Power Company, in the city of Richmond, was injured when the car was in collision with an automobile [181 Va. 527] driven by Francis X. Thompson. Goodson instituted suit in the court below against the Virginia Electric and Power Company and Thompson, seeking damages for his personal injuries sustained in the collision. The case came on for a jury trial in which Archibald G. Robertson represented the defendant, Virginia Electric and Power Company. After the plaintiff had completed his testimony, and while O. A. Whitlow, the operator of the street car, was testifying on behalf of the Virginia Electric and Power Company, he was asked on cross-examination by the attorney for the plaintiff whether he had given his employer a written statement or report as to the circumstances of the collision. Upon answering in the affirmative, he was requested by counsel for the plaintiff to produce the statement. At this point Mr. Robertson interrupted by saying that he (Robertson) had the statement and that it would not be produced. Robertson was then called as a witness on behalf of the plaintiff, and while he admitted that the desired statement was in his file in the courtroom, he again declined produce it.

The jury was then excluded and counsel for the respective parties argued before the court whether the statement was admissible in evidence and whether Robertson should be required to produce it.

Counsel for the plaintiff took the position that while the statement had 'no probative value,' he desired its production for the purpose of contradicting the motorman.

At this time Robertson took the position that opposing counsel had no right to demand an inspection of his 'Robertson's) file for the purpose of proving the plaintiff's case. The court overruled this contention

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and directed that the statement be produced. Robertson refused to obey this ruling, stating that he did so 'with the greatest deference greatest respect' because he considered that his duty to his client compelled him to take that course. Thereupon the court ruled that he was guilty of contempt in refusing to comply with its order, imposed a fine of [181 Va. 528] $100 upon him. An order to this effect was entered on the order book of the court.

Moreover, due to Robertson's disobedience of its order, the court struck out the defenses of the Virginia Electric and Power Company, and, in effect, instructed the jury that their only duty with respect to that defendant was to assess the amount of damages due by it to the plaintiff.

Later during the progress of the trial of the civil suit the admissibility of the statement and whether it should have been produced by Robertson were further argued and considered by the court. Robertson then urged upon the court these additional reasons why he should not be required to produce the document: (1) That under the express terms of Code, section 6216, such statement was not admissible in evidence to contradict the motorman; and (2) that it was a privileged communication which had been disclosed in confidence to him as counsel for the Virginia Electric and Power Company, and that hence he should not be required to divulge its contents. During this course of the argument the statement was produced by Robertson and handed to the court for its inspection. Upon reading the document the court ruled that its contents were not privileged, and that it was admissible in evidence. It adhered to its former ruling that Robertson was guilty of contempt for disobeying its order and that for his disobedience the Virginia Electric and Power Company should be penalized in the manner stated.

In view of the court's ruling a verdict and judgment in favor of the plaintiff against the Virginia Electric and Power Company necessarily followed. In the companion case of Virginia Elec., etc., Co. v. Bowers, Adm'r, this day decided (post, p. 542), we have dealt with the validity of that judgment.

The present opinion deals with the validity of the judgment for contempt entered against Robertson.

The first contention of the plaintiff in error is that the court's power to punish him summarily for contempt is limited [181 Va. 529] by the provisions of Code, section 4521; [*] that the court had the power to punish him, if at all, under the fifth subdivision of the statute which authorizes punishment for 'Disobedience or resistance * * * to any lawful process, judgment, decree, or order of the said court'; and that the oral direction or command of the court to Robertson to produce the document in his possession was not such an 'order of the said court' as is required by the statute.

As a corollary to this argument the plaintiff in error contends that the production of the statement could have been compelled only by the issuance and service of a subpoena either on him, under Code, section 6219, or on the proper official of the Virginia Electric and Power Company under Code, section 6237.

In the first place, we can not agree with the contention that it was the purpose of the fifth subdivision of this statute, in providing for summary punishment by a court for 'Disobedience or resistance * * * to any lawful * * * order of the said court', to limit or confine such 'order' to one which has been reduced to writing, and thereby exclude and leave unpunishable in summary contempt proceedings the verbal commands, directions or orders of the court.

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[181 Va. 530] Section 63 of the Constitution, in prescribing the 'Powers of the general assembly and limitations thereon', provides that, among other things, it 'may regulate the exercise by courts of the right to punish for contempt.'

Pursuant to this provision the General Assembly amended and reenacted section 3768 of the Code of 1887, as theretofore amended, enumerating the cases in which courts and judges may punish summarily for contempt. Acts of 1904, ch. 194, p. 309. Except for a slight change in the third subdivision, which is not here material, this statute was carried by the revisors into section 4521 of the present Code. See Revisors' Note; Judge Burks' Address on Code of 1919, 5 Va. Law Register, N.S., 97, 101, 102.

In Yoder v. Commonwealth, 107 Va. 823, 829, 57 S.E. 581, this court, speaking through Judge Keith, said: 'The constitution did not intend, we think, to clothe the legislature with absolute power over the subject, but meant to confer upon the legislature...

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