PARMELEE TRANSPORTATION COMPANY v. Keeshin

• Decision Date: 10 July 1961
• Docket Number: No. 13176.,13176.
• Citation: 292 F.2d 806
• Parties: PARMELEE TRANSPORTATION COMPANY, a Delaware corporation, Plaintiff, v. John L. KEESHIN et al., Defendants. In the matter of criminal contempt of Lee A. FREEMAN, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

292 F.2d 806 (1961)

PARMELEE TRANSPORTATION COMPANY, a Delaware corporation, Plaintiff, v. John L. KEESHIN et al., Defendants In the matter of criminal contempt of Lee A. FREEMAN, Respondent-Appellant.

No. 13176.

United States Court of Appeals Seventh Circuit.

July 10, 1961.

Lee A. Freeman and Brainerd Currie, Chicago, Ill., for appellant.

James P. O'Brien, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before DUFFY, SCHNACKENBERG and CASTLE, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Lee A. Freeman, respondent, has appealed from an order of the district court entered by Judge Julius H. Miner thereof, on June 30, 1960, D.C., 186 F.Supp. 533, adjudging him guilty of criminal contempt and sentencing him to confinement for a period of ten days on each of four specifications set forth in said contempt order, said sentences to run concurrently. The alleged acts of contempt occurred in connection with the trial of the case of Parmelee v. Keeshin,¹ in which respondent was co-counsel for plaintiff with Thomas C. McConnell.

1. Specification 1 reads as follows:

"On April 28, 1960, in the presence and hearing of the jury, the following occurred:

"`By Mr. Freeman: Was the railroad service limited in substantial respects with respect to the railroad passengers that had available to them these transfer coupons?

"`By Mr. Keating: Same objection, as a conclusion.

"`By the Court: The same ruling.

"`By Mr. Freeman: That is crazy.\'"

During a jury trial required by the court on the sole issue of public injury, over the objection of counsel in the case, and in the presence of the jury, Benjamin F. Goldstein, a witness called by plaintiff, was testifying, under examination by respondent. The court sustained objections to certain questions put by respondent who remarked, "that is crazy."

We have carefully read the record of proceedings and believe that it can be reasonably inferred that the last remark of respondent was addressed to his co-counsel, Mr. McConnell, and was not intended to be heard by either the court or the jury. Certainly the record fails to show that Judge Miner took any notice whatever of the remark at the time. When the jury had been excused for the day, respondent's opposing counsel said:

"I would just like to say that I appreciate that it is difficult perhaps for counsel for the plaintiff, sitting within three or four feet of the jury, to confer at all without conveying it in such a fashion the jury will overhear it.

"I overheard one of the remarks this afternoon, clear over in my seat, which is twice as far away as the jury is."

Whereupon respondent answered:

"You don\'t have to say any more, Mr. Thompson. If I did do that, it was certainly inadvertence, and we will, if there is any conferring, it will be in the lightest whisper. We certainly understand what you suggest is entirely proper."

Whereupon the court stated:

"I think that covers that with the jury and with counsel."

We hold that contumacious conduct has not been proved under specification 1.

2. Specification 2 reads as follows:

"On April 29, 1960, out of the presence and hearing of the jury but in open court, Mr. Freeman made the following statement to the Court:

"`Your Honor, may I, with all deference, inquire whether or not this memorandum that was entered by you on December 6 has any significance or shall it be completely ignored?

"`It seems to be, Your Honor, that you are willing to ignore those instances, and I will point out another one to Your Honor where you have ruled that documents are admissible, but at any time I seek to present a document that you have ruled admissible, there is a waving of arms on my learned counsels\' side, and an immediate denial.

"`I think, Your Honor, that if there is to be a reconsideration of this memorandum, it should be reconsidered for both sides and not for one side, and let me just in this connection point out that you have during the course of this trial rejected the Soo Line exhibits, which are exhibits, Plaintiff\'s Exhibits 11, 12 and 13.

"`These three documents were submitted in our list of documents that we intended to offer as Item 43, and there was an objection made by the defendant railroads joined in by counsel for the other defendants, that these documents were internal documents, immaterial and hearsay, and on page 9 of this memorandum of opinion that you rendered on December 2, 1959, on page 5, rather, those objections are overruled.

"`The Soo line memoranda are to be considered admissible there and Your Honor has changed his ruling again, and it occurs to me, and I say it again with all due deference, that no favorable ruling that we have gotten in the past from you will stick, but every unfavorable ruling will be reiterated, and I don\'t think that is a fair trial.\'"

Repeatedly expressing deference, respondent made inquiry of the court about a ruling which he obviously intended to inform the court was confusing to him. We are inclined to think that respondent was sincere in his attitude because of the rather dubious language used by the court in the memorandum about which he inquired. This is the court's own language from the memorandum:

"All documents the objections to which are here overruled are rendered not inadmissible only to the extent that the Court will permit plaintiff to tender them for admission into evidence at the time of trial. Documents here ruled inadmissible may not be so tendered at the trial. Whether any document, not by these rulings rendered inadmissible, will be admitted into evidence at the trial is a question reserved by the Court for ruling at the time of its tender by plaintiff at the trial.

"Any document to which defendants\' objections are here sustained may, upon approval by the Court, become admissible, notwithstanding, only for purposes of impeachment, and then only to prove the inaccuracy of specific facts testified to on direct examination, in which case the document herein ruled inadmissible may be admitted into evidence if it patently and explicitly, not as a matter of inference or implication, states the fact concerning which the direct testimony is being controverted."

In this court it is the contention of counsel for respondent that the meaning of this language is that rulings against the plaintiff were final, whereas rulings against the defendant were tentative only, and that the defendants, and they alone, were to have the privilege of a second ruling. Whether this be correct or not, we believe that a situation existed which created a doubt in respondent's mind and that he was in good faith attempting, with due deference, to clear up that doubt by a reasonable inquiry and that his conduct in that regard was respectful and did not constitute contempt of court.

3. Specification 3 reads as follows:

"Repeatedly

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