Ex parte Jones

• Decision Date: 27 January 1960
• Docket Number: No. A-7537,A-7537
• Citation: 331 S.W.2d 202,160 Tex. 321
• Parties: Ex parte Franklin JONES, Sr.
• Court: Texas Supreme Court

Page 202

331 S.W.2d 202

160 Tex. 321

Ex parte Franklin JONES, Sr.

No. A-7537.

Supreme Court of Texas.

Jan. 27, 1960.

R. Dean Moorhead, Tom H. Davis, L. Hamilton Lowe, Austin, for relator.

Howard A. Carney, Atlanta, Bun Hutchinson, Texarkana, for defendant.

NORVELL, Justice.

This is a contempt case which arose from an argument made by Franklin Jones, Esq., the attorney for the plaintiff in a common law negligence action. The case is presented here upon application for habeas corpus. There is no issue as to the trial court's jurisdiction of the person or subject matter and the only question is whether or not the court below had authority to render the particular judgment which is the subject of inquiry, that is, the order committing Jones for contempt. Ex parte Duncan, 42 Tex.Cr.R. 661, 62 S.W. 758; Ex parte La Rocca, 154 Tex. 618, 282 S.W.2d 700.

The record discloses no heated and bitter controversy between judge and counsel and the case turns upon the wording and scope of an order made by the judge which sought to control the course of oral argument to a jury.

The case on trial at the time of the alleged contempt was one in which Larry Green, a minor, suing by next friend and a guardian ad litem, sought damages from Jack Walls for personal injuries sustained as the result of a collision between a motor scooter upon which he was riding as a passenger and an automobile driven by Jack Walls. Counsel for the defendant in arguing the case to the jury contended that Jack Walls was not negligent; that plaintiff's leg was broken because the motor scooter fell on it, and that no protection was provided on such scooter for the legs of a passenger thereon. The argument continued as follows:

'Gentlemen, are you going to take Jack Walls and penalize him and take away from him the things he has earned and the money he has worked for because when he went and made a turn, someone ran into him? * * * Gentlemen, I say when a man gets out and saves it up and when he gets out and someone runs into him with a motor scooter or car that he shouldn't be taken into court and his money taken away from him when it was not his fault.'

The order of commitment for contempt recites that an objection was made by Mr. Jones after the defendant's argument had been completed but 'was by the Court overruled because the objection had not been made during the argument and the Court had no opportunity to stop such argument and instruct the jury not to consider the same.' Jones then said that he intended to answer defendant's argument by telling the jury that 'the insurance company would have to pay the judgment and not Jack Walls, the defendant.' The Court then instructed counsel 'not to make such remarks in his argument to the jury and not to advise the jury that the defendant, Jack Walls, was covered by liability insurance.' Jones then told the judge that he intended to answer defendant's argument and later, during a recess, the judge again instructed Jones not to mention insurance, 'and further that he should not skirt so near the word, 'insurance' or facts instant (sic) thereto as to leave the impression with the jury that the defendant, Jack Walls, was covered by liability insurance or say anything that would convey such impression to the jury.'

By a statement in the form of a bill of exception signed and approved by the trial judge, it clearly appears that the recess 'instruction' was neither pronounced from the bench, nor given in the course of a formal proceeding or in a conference held in chambers under the direction of the judge; but was wholly informal and resulted from a conversation between judge and counsel. It does not appear to have been an order of the court and hence may be disregarded.

Reverting to the order of commitment, it appears therefrom that in the plaintiff's closing argument, Mr. Jones said:

'I was surprised at (defendant's attorney) coming before this jury and saving, 'Don't penalize Jack Walls.' He argued and argued, 'Don't take his earnings $80,000. Don't take from what he has built up $80,000.' He knows in his heart it is improper. He knows that under the instructions of the Court you are not to consider how this judgment may fall, who pays it, how it is paid, or whether or not it is ever paid. He knows it is untrue that Walls will have to pay $80,000 in this case. He knows it is untrue and he will not challenge me when I say that * * * You are not concerned with who pays it or if it is ever paid. Let us worry about that. We will collect from the proper parties. It is not fair to say Jack Walls will have to pay it when they know it is not true.'

The judge held that this argument violated the order above set out and fined Jones $100 and sentenced him to three days in jail. He was released from confinement by a writ of habeas corpus issued by this Court.

As counsel in his argument did not say that 'an insurance company would have to pay the judgment and not Jack Walls,' the question becomes one of whether or not counsel's argument advised 'the jury that Jack Walls was covered by liability insurance.'

This question must be answered in the light of the record before us. It cannot be answered in a vacuum. It is ordinarily immaterial whether one or all of the parties involved in an automobile collision carry indemnity insurance. Coleman Gay, 34 Tex. Law Rev. 368, 370. The disclosure of either insurance coverage or no insurance coverage may, however, be prejudicial. Rojas v. Vuocolo, 142 Tex. 152, 177 S.W.2d 962; Kuntz v. Spence, Tex.Com.App., 67 S.W.2d 254; Gilmer v. Griffin, Tex.Civ.App., 265 S.W.2d 252, ref. n. r. e.; Gillespie v. Rossi, Tex.Civ.App., 238 S.W.2d 547, ref. n. r. e. It seems to have been the view of the district judge that plaintiff's remedy for counsel's remarks which allegedly indicated 'no insurance,' was to make timely objection and request an instruction to disregard, and, having failed to do this, counsel for plaintiff was not at liberty to answer the argument by challenging the 'no insurance' inference. While the argument of defendant's attorney and the court's ruling with reference to the objection thereto are background incidents against which the validity of the contempt order must be determined, the question upon this hearing is not the correctness of this particular ruling. The judge possessed the authority to establish rules and give instructions governing the trial of causes and in the absence of a showing of nullity, it was counsel's duty to abide by them even though such instructions may have been erroneous. The trial judge's order that the jury be not advised that Walls had liability insurance was effective, whether correct or not, and the controlling question is whether or not this order was violated.

The question is close. Perhaps the mere admonition and reminder that the court had instructed the jury that it was not proper for the jury to 'consider how this judgment may fall, who pays it, how it is paid, or whether or not it is ever paid,' might raise an inference that someone other than Walls would be called upon to pay the judgment and that such party might be an insurance company. However, it could hardly be maintained that a mere repetition of the court's...