Robertson v. Commonwealth, Record No. 2658.
| Decision Date | 26 April 1943 |
| Docket Number | Record No. 2658. |
| Citation | 181 Va. 520 |
| Parties | ARCHIBALD G. ROBERTSON v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Supreme Court |
Present, Campbell, C.J., and Holt, Hudgins, Browning, Eggleston and Spratley, JJ.
1. CONTEMPT — Failure of Attorney to Obey Order of Court — Order Need Not be Reduced to Writing — Case at Bar. — The instant case was a review of a judgment holding appellant guilty of refusing to obey an order to court, while testifying in a case therein pending. Appellant was counsel for a corporate defendant in a personal injury case and after plaintiff had completed his testimony defendant's employee was asked on cross-examination whether he had given his employer a statement as to the circumstances of the collision. Appellant at this point said that he had the statement but that it would not be produced. He was then called as a witness but still declined to produce the statement. Appellant contended that the court's power to punish him summarily for contempt was limited by the provisions of section 4521 of the Code of 1942, and that if the court had the power to punish him at all it would be under the fifth subdivision of that statute, which authorized punishment for disobedience or resistance to any lawful process, judgment, decree, or order of the court, and that the oral direction or command of the court to appellant to produce the document in his possession was not such an order as was contemplated by the statute. As a corollary appellant contended that the production of the statement could have been compelled only by the issuance and service of a subpoena either on him under section 6219 of the Code of 1942 or on the proper official of his corporate client under section 6237 of the Code of 1942.
Held: That there was no merit in the contention that it was the purpose of the fifth subdivision of section 4521 to limit or confine the order to one which has been reduced to writing thereby excluding and leaving unpunishable in summary contempt proceedings the verbal commands, directions or orders of the court. Nor was the collorary contention that a subpoena was required under section 6219 or 6237 tenable since under section 6208, a party to a civil suit is no longer incompetent to testify and he as well as any other witness who is present in court may be called upon to testify although he may not have been served with a subpoena.
2. CONTEMPT — Power of Legislature — Limitation. — Section 63 of the Constitution did not intend to clothe the legislature with absolute power over the subject, but meant to confer upon the legislature authority to bring the subject of contempts within reasonable regulations, not inconsistent with the exercise by the courts, with vigor and efficiency, of those functions which are essential to the discharge of their duties.
3. CONTEMPT — reasonable Regulation of Exercise by Court of Power to Punish — Code Section 4521. — Section 4521 of the Code of 1942 on the whole is a reasonable regulation of the exercise by the courts of the power to punish for contempt. It does not so far abridge or impair the powers of the courts established by the Constitution, nor so far diminish their authority, and is not a regulation so unreasonable as to render them incapable of the efficient exercise of their functions.
4. CONTEMPT — Code Section 4521 — Lawful Orders Not Confined to Those Reduced to Writing. — To hold that section 4521 of the Code of 1942 was intended to confine summary punishment for disobedience of a court's "lawful orders" to those which have been reduced to writing, and thereby leave unpunishable in summary contempt proceedings the verbal commands, directions and orders of the court, would deprive the courts of their inherent power of self-defense and self-preservation, and would so far diminish their authority as to render them incapable of the efficient exercise of their functions.
5. CONTEMPT — Failure to Produce Document on Court Order — Whether Order Lawful Within Meaning of Statute — Case at Bar. — In the instant case, a review of a judgment holding appellant attorney guilty of contempt for refusing to obey an order of court while testifying in a case therein pending, appellant contended that the order was not a lawful order within the meaning of section 4521 of the Code of 1942, which authorized punishment for disobedience or resistance to any lawful process, judgment, decree, or order of the court. Appellant argued that the order was unlawful because it directed him to produce a written statement made by an employee of his client for the purpose of contradicting the latter, and that this was in direct contravention of the last sentence of section 6216 of the Code of 1942, which provides that "in an action to recover for a personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing other than a deposition, after due notice, of a witness as to the facts or circumstances attending the wrongful act or neglect complained of, shall be used to contradict him as a witness in the case." The trial court held that since this provision in the statute excluded written statements only in actions for personal injuries or death by wrongful act or neglect, and in no other cases, it was "class legislation and a special law" prohibited by subsection 3 of section 63 of the Virginia Constitution.
Held: Error. Since the statement called for was not in the form of a deposition taken after due notice, under the express terms of the statute it was not admissible for the purpose of contradicting the employee.
6. WITNESSES — Impeachment — Contradiction by Prior Inconsistent Writing. — The purpose of the last sentence of section 6216 of the Code of 1942, which provides that "in an action to recover for a personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing other than a deposition, after due notice, of a witness as to the facts or circumstances attending the wrongful act or neglect complained of, shall be used to contradict him as a witness in the case, "was to correct the unfair practice of contradicting a witness by a written statement taken shortly after an accident, resulting in death or personal injury, when such witness may not have fully recovered from the shock and may not be in full possession of his faculties.
7. CONSTITUTIONAL LAW — Special Law — Arbitrary Separation of Persons, Places or Things. — A law is "special" in a constitutional sense when by force of an inherent limitation it arbitrarily separates some persons, places or things from those upon which, but for such separation, it would operate.
8. CONSTITUTIONAL LAW — Legislative Classifications — Actions for Wrongful or Negligent Injury or Death — Case at Bar. — In the instant case, a review of a judgment holding appellant attorney guilty of contempt for refusal to obey an order of court while testifying in a case therein pending, the trial court held unconstitutional section 6216 of the Code of 1942, which provides that "in an action to recover for a personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing other than a deposition, after due notice, of a witness as to the facts or circumstances attending the wrongful act or neglect complained of, shall be used to contradict him as a witness in the case." The trial court held that since this provision in the statute excluded written statements only in actions for personal injuries or death by wrongful act or neglect, and in no other cases, it was "class legislation and a special law" prohibited by subsection 3 of section 63 of the Virginia Constitution.
Held: Error, since no persons were arbitrarily separated by inherent limitations or otherwise. The act related to all persons in the class, that is, to all witnesses, whether they were called by the plaintiff or by the defendant, involved in an action for personal injuries or death by wrongful act or neglect. Actions for personal injuries and death by wrongful act covered a large class of cases which were brought in the common-law courts. The necessity for and the reasonableness of such classification were primarily questions for the legislature and not for the courts.
9. CONTEMPT — Failure to Produce Document on Court Order — Whether Order Lawful Within Meaning of Statute — Case at Bar. — In the instant case, a review of a judgment holding appellant attorney guilty of contempt for refusing to obey an order of court while testifying in a case therein pending, appellant contended that the order was not a lawful order within the meaning of section 4521 of the Code of 1942, which authorized punishment for disobedience or resistance to any lawful process, judgment, decree, or order of the court. Appellant argued that the order was unlawful because it directed him to produce a written statement made by an employee of his client for the purpose of contradicting the latter, and that this was in direct contravention of the last sentence of section 6216 of the Code of 1942, which provides that "in an action to recover for a personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing other than a deposition, after due notice, of a witness as to the facts or circumstances attending the wrongful act or neglect complained of, shall be used to contradict him as a witness in the case." The trial court held that since this provision in the statute excluded written statements only in actions for personal injuries or death by wrongful act or neglect, and in no other cases, it was "class legislation and a special law" prohibited by subsection 3 of section 63 of the Virginia Constitution and therefore the document was admissible.
Held: That, while the trial court erred in ruling that the document was admissible in evidence and in ordering the plaintiff in error to produce it, it did not follow that such ruling and order were void and could be...
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