Fox v. Capital Co.

• Decision Date: 25 April 1938
• Docket Number: No. 6472.,6472.
• Citation: 96 F.2d 684
• Parties: FOX v. CAPITAL CO. et al.
• Court: U.S. Court of Appeals — Third Circuit

96 F.2d 684 (1938)

FOX v. CAPITAL CO. et al.

No. 6472.

Circuit Court of Appeals, Third Circuit.

April 25, 1938.

Daniel G. Rosenblatt and Murry C. Becker, both of New York City, and Cole & Cole, of Atlantic City, N. J., for appellant Eva Fox.

Walter Hanstein, of Atlantic City, N. J., for appellees Capital Co. and Chicago Title & Trust Co.

Wm. Elmer Brown, Jr., of Atlantic City, N. J., for appellee Hiram Steelman, trustee in bankruptcy for William Fox.

Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.

BUFFINGTON, Circuit Judge.

In the proceedings under 21a of the Bankruptcy Act, 11 U.S.C.A. § 44(a), in the Matter of William Fox, bankrupt, Eva Fox, the appellant, appeared in the referee's court, in obedience to a subpoena, on August 25, 1936, and after testifying for some time, "she practically went to pieces mentally and physically," lost her voice, and was apparently a mental and physical wreck. She was excused, with direction by the referee to appear the following day to testify.

That night of the 25th, Dr. William W. Hersohn, of Atlantic City, N. J., who had been attending Mrs. Fox for over a year, examined her and wrote a certificate to be presented to the court the following day, in which he said:

"Although she is not a healthy woman, I have never seen her look like I found her this evening at six o'clock when I received an urgent call to attend her. She was seriously upset mentally, extremely nervous, and complaining of great intensity of her symptoms. I solicited the information that she practically went to pieces mentally and physically, while in court today. She was especially upset over the fact that she couldn't understand why she would have a rapid pounding heart, a thumping in the chest, hoarseness, and inability to understand or answer simple questions.

"Her physical condition is the complete answer to this."

He closed the certificate by saying: "May I ask, as a physician interested in the welfare of his patient, that Mrs. Fox be excused from further testimony, until such time that her physical condition so warrants. To compel her to appear for examination at this time would likely lead to her complete collapse."

The following morning, August 26th, this certificate was presented to the referee, who appointed Dr. W. J. Carrington of Atlantic City, N. J., to examine Mrs. Fox. He did so that evening in the presence of Dr. Hersohn, who in an affidavit said that, "At the conclusion of his examination Dr. Carrington agreed with me that it would be much better if Mrs. Fox did not have to go to court for a period of one or two weeks and then only if her condition was improved and she was properly protected by the referee and was shown special consideration and treatment because of her condition." This was partly denied by Dr. Carrington, who said in his report to the referee that, "I can see no organic reason why the patient should not testify in court. Because of her tendency toward nervousness, aggravated by the menopause, I might suggest that unusual consideration be shown in the manner of questioning and that whenever possible the answers to questions be obtained from other sources."

The referee stated at the opening of court that she would not be excused from testifying, and directed counsel to have Mrs. Fox in court to testify at the adjourned hearing on Tuesday, September 1, 1936, at 10 o'clock in the morning. She was not present in court at the time suggested, and the referee directed Dr. Carrington to examine her again that day. This he did in the presence of Dr. Hersohn at 1 o'clock that afternoon. Dr. Hersohn says that Mrs. Fox at that time had not improved, and that she was unable to appear and testify in court. He said as her personal physician: "I have advised Mrs. Fox that it would be extremely dangerous to her health to go to court and testify in her present condition." He says that Dr. Carrington then and there agreed with him. Dr. Carrington again denied this.

The following day Dr. Samuel Ritter, of New York City, who had been attending Mrs. Fox for two and a half years, examined her. He said that she was suffering from the menopause, and was bordering on a complete nervous breakdown, and that "any unusual mental or physical strain such as testifying in court, would, at this time result in very serious consequences. Menopausal insanity is not an uncommon result in situations of this kind," etc.

Dr. Carrington, as well as Dr. Hersohn, said that in the examinations Mrs. Fox had been "exceedingly cooperative." The referee certified Mrs. Fox to the District Court for contempt because of her failure to appear as directed, and that court, on April 29th, adjudged her to be in contempt of it and of the referee in bankruptcy, and ordered her to appear before it on June 4, 1937, to receive sentence. It further ordered that if she appeared before the referee in bankruptcy before that time and produced with her certain books, papers, records, and documents, she would be considered as purging herself of contempt.

The court did not say whether it found her to be guilty of criminal contempt or of civil contempt. It probably had in mind civil contempt, for the punishment which the opinion indicated might be imposed is appropriate to a finding of civil contempt. Thereafter, an appeal was taken to this court, which was argued on December 6, 1937.

While this court recognizes that it is the function of the District Court to find the facts which are usually binding upon the appellate court, yet in view of the fact that all the physicians had found that Mrs. Fox was "exceedingly cooperative," seemed willing herself to testify, if she could; that there was no contradiction that she had been advised by both of her physicians that it was dangerous to her health to go into court and testify; that a large part of the evidence upon which the finding of contempt was based was taken before the referee...