Massey v. City of Macon, 37139

• Decision Date: 21 May 1958
• Docket Number: No. 37139,No. 1,37139,1
• Citation: 104 S.E.2d 518,97 Ga.App. 790
• Parties: Ed C. MASSEY v. CITY OF MACON
• Court: Georgia Court of Appeals

Page 518

104 S.E.2d 518

97 Ga.App. 790

Ed C. MASSEY v. CITY OF MACON.

No. 37139.

Court of Appeals of Georgia, Division No. 1.

May 21, 1958.

Rehearing Denied June 24, 1958.

Syllabus by the Court.

A finding was demanded that the plaintiff in error was not guilty of constructive or indirect criminal contempt of court; therefore, the court erred in dismissing the plaintiff in error's certiorari.

Ed C. Massey, Jr., was cited for contempt by the Judge of the Recorder's Court of the City of Macon. After a hearing on the matter, Mr. Massey was adjudged in contempt and sentence was imposed. The contemner filed a petition for certiorari to the Superior Court of Bibb County. The Judge of the Recorder's Court filed his response and, after hearing argument, the Judge of the Bibb Superior Court dismissed the certiorari, and the contemner excepts.

Frank G. Wilson, Macon, for defendant in error.

Durwood B. Mercer, Macon, for defendant in error.

FELTON, Chief Judge.

Lawton Miller is Judge of the Recorder's Court of the City of Macon. He is also engaged in the private practice of law. Two cases for traffic violations against Jerry Duke Massey, the son of Ed C. Massey, Jr., regularly came before Judge Miller for trial. The defendnat was found guilty in both cases in which fines were imposed, and paid. Also, as part of the sentence, the defendant's driver's license was suspended for sixty days and the license was forwarded by the Clerk of the Recorder's Court to the Department of Public Safety in Atlanta.

The actions of the contemner which allegedly constituted the contempt are set out in the judge's response filed in the certiorari proceeding and, since that response is not traversed, the recitals therein must be taken as true. The pertinent parts of the response are as follows:

'On the afternoon of Friday, February 22, 1957, Ed C. Massey telephoned respondent at respondent's office at 515 Persons Building, in the City of Macon. This is the location of the offices of the law firm of Miller, Miller & Miller, of which respondent is a member. Mr. Massey asked respondent if respondent was busy and respondent informed him that he was very busy, which was a fact. Mr. Massey stated that he wanted to come to respondent's office that afternoon and talk with respondent. Respondent inquired of Mr. Massey as to what he wished to talk with respondent about, and Mr. Massey answered that he wanted to talk about his son's cases. Respondent advised Mr. Massey that respondent would prefer not to discuss the son's cases as they had been concluded except for suspension of the son's driver's license, which was still in effect. Mr. Massey insisted that he wanted to come to respondent's office that afternoon and talk about his son's cases. Respondent then endeavored to explain to Mr. Massey and get him to appreciate the fact that several thousand cases are made monthly by the Macon Police Department, and respondent could not possibly discuss all of them in his law office, and that, if respondent made an exception in Mr. Massey's case, respondent could not thereafter decline to talk with all others who had or were interested in cases in Recorder's Court. Respondent informed Mr. Massey that he had, therefore, had to adopt and follow a policy of not discussing Recorder's Court cases anywhere except in the court. Mr. Massey was unwilling to accept this explanation and kept insisting that respondent talk with him about his son's cases in respondent's law office that afternoon. Respondent finally advised Mr. Massey that if he would contact respondent the next morning at the City Hall, either before or after the session of Recorder's Court, or on any other morning which might better suit Mr. Massey's convenience, respondent would discuss his son's cases with him. Mr. Massey then told respondent, 'You're going to talk with me today.' This conversation consumed perhaps 10 minutes, and respondent had extreme difficulty in getting Mr. Massey to stop talking long enough at any point for respondent to try to reason with him. Respondent finally advised Mr. Massey that if he was not willing to contact respondent at the City Hall, as requested, there was nothing to be accomplished by discussing the matter with him further, and at this juncture respondent discontinued the telephone conversation and hung up the telephone. At no point in the telephone conversation did respondent tell Mr. Massey to 'shut up.' His statement to this effect is false. Respondent did not at any time during the telephone conversation treat Mr. Massey with discourtesy or rudeness. Respondent endeavored, without success, to explain respondent's policy, concerning discussing cases, with him, and sought his respect of this policy. At no point in the telephone conversation did Mr. Massey advise respondent that his automobile liability insurance had been or was in any manner likely to be adversely affected by the suspension of his son's driver's license. * * *

'About five minutes after termination of the telephone conversation, Mr. Massey appeared in the lobby of respondent's office in the Persons Building. * * * Mr. Massey told respondent's said brother that he wanted to see respondent and was advised to go on back to respondent's office. Mr. Massey came rushing into respondent's private office. Respondent could tell by his manner and the scowl on his face that he was in a highly emotional and upset state. He was mad to the fighting stage when he entered respondent's office. His first words were, before respondent said anything, 'You're going to apologize for hanging up in my face.' Respondent, without raising his voice, told Mr. Massey that he had nothing to apologize to him about and that if he would come to the City Hall, as respondent had requested, respondent would talk with him about his son's cases. Mr. Massey said, 'No, you're going to apologize for hanging up in my face.' He was trembling all over and was standing facing respondent, with his face sort of pushed forward toward respondent's face. Respondent, knowing that nothing could be accomplished except further difficulty while Mr. Massey was in such a mental state, placed his right hand lightly on his left shoulder and said to him, 'Ed, you and I have been friends for a long time. You're acting childish about this matter. Now, sit down and cool off. I can't talk with you until you do.' Respondent did not exert any pressure on him whatsoever. Respondent did not push or shove Mr. Massey into a chair or make any effort to do so. His assertion that respondent did so is absolutely false. Respondent was endeavoring to get Mr. Massey to calm down and prevent a physical fight in respondent's office. Instead of sitting down, as requested, he said, 'You can order me around at the City Hall, but you can't order me around anywhere else.' By this time his voice had become shrill and loud as his anger rose. Respondent said to him, 'Ed, I'm not trying to order you around. All I want you to do is sit down and get hold of yourself.' Respondent did not put his hand on Mr. Massey's shoulder again or make any attempt to do so. Mr. Massey replied that he came to respondent's office to make respondent apologize and that he was going to force respondent to do so.

'Respondent then told Mr. Massey that he had gone too far and that if he didn't get out of respondent's office, respondent would call the police and have him taken out. He then started walking out of respondent's private office through the office ...