Va. Elec. & Power Co. v. Bowers
| Decision Date | 26 April 1943 |
| Docket Number | Record No. 2659. |
| Citation | 181 Va. 542 |
| Court | Virginia Supreme Court |
| Parties | VIRGINIA ELECTRIC AND POWER COMPANY v. WILLIAM W. BOWERS, ADMINISTRATOR OF BENJAMIN F. GOODSON, DECEASED. |
Present, Campbell, C.J., and Holt, Hudgins, Browning, Eggleston and Spratley, JJ.
1. PLEADING — Striking Plea for Failure to Testify — Code Section 6213 Strictly Construed. — Section 6213 of the Code of 1942, authorizing dismissal of an action or striking out and disregarding the defense of a party refusing to testify, is in derogation of the common law and, therefore, must be strictly construed.
2. PLEADING — Striking Plea for Failure to Testify — Code Section 6213 Applies to Litigants. — Section 6213 of the Code of 1942, authorizing the court to dismiss the suit of a party refusing to testify, or to strike out the defense of such party, applies to a litigant and not to a mere witness.
3. ATTORNEY AND CLIENT — Attorney as Agent of Client. — An attorney is the agent of his client, and has authority to take all lawful steps for the protection of his client's interest, but his authority is not unlimited.
4. ATTORNEY AND CLIENT — Authority to Bind Client by Committing a Quasi Criminal Act. — An attorney has no implied authority to bind his client by committing a quasi criminal act, such as contempt, in the presence of the court.
5. PLEADING — Striking Plea for Failure to Testify — Employee of Litigant as Dominus Litis — Case at Bar. — In the instant case, an action for negligence, attorney for defendant corporation refused to produce a statement of the operator of defendant's street car which had been involved in the accident. Thereupon the court took the position that it was authorized under section 6213 of the Code of 1942 to strike out defendant's plea of not guilty and ordered that the case proceed as on a writ of inquiry to assess the damages against defendant corporation. Defendant corporation contended that even if its counsel was guilty of contempt is should not have been penalized for its counsel's refusal to obey the court's command to produce the document. The lower court took the view that the act of the attorney was ratified by defendant corporation, stating in its written opinion that the representative of the company, its vice-principal, the dominus litis, sat by, failing to get the paper himself or requiring the attorney to produce it. There was no evidence that the man present in the courtroom to whom the allusion was made was the vice-principal, or an officer of the company, or that he had any control over counsel. The only evidence as to the man's connection with the company was his statement that he was employed as an adjuster and investigator in the claim department.
Held: That the claim adjuster and investigator who was present during the trial of the case arising out of an accident which he had investigated for his employer was not dominus litis.
6. WORDS AND PHRASES — Dominus Litis. — Dominus litis is defined as the master of a suit. The client, as distinguished from an attorney.
7. PLEADING — Striking Plea for Failure to Testify — Refusal of Counsel to Testify — Case at Bar. — In the instant case, an action for negligence, attorney for defendant corporation refused to produce a statement of the operator of defendant's street car which had been involved in the accident. Thereupon the court took the position that it was authorized under section 6213 of the Code of 1942 to strike out defendant's plea of not guilty and ordered that the case proceed as on a writ of inquiry to assess the damages against defendant corporation. Defendant corporation contended that even if its counsel was guilty of contempt it should not have been penalized for its counsel's refusal to obey the court's command to produce the document.
Held: That the lower court erred in penalizing the defendant corporation, in the manner indicated, for the disobedient act of its counsel.
Error to a judgment of the Law and Equity Court of the city of Richmond, Part Tow. Hon. Frank T. Sutton, Jr., judge presiding.
The opinion states the case.
E. Randolph Williams and T. Justin Moore, for the plaintiff in error.
Thos. A. Williams and L. C. O'Connor, for the defendant in error.
Benjamin F. Goodson filed suit in the court below against Virginia Electric and Power Company and Francis X. Thompson, jointly, to recover damages for personal injuries sustained when a street car on which he was a passenger, and which was being operated by the Virginia Electric and Power Company, collided with an automobile driven by Thompson. Goodson alleged that the collision was proximately due to the negligence of both the operator of the street car and the driver of the automobile. By appropriate pleadings both defendants denied liability.
When the case came on for trial before a jury the parties offered evidence which tended to sustain their respective contentions. During the taking of the testimony on behalf of the Virginia Electric and Power Company, it developed that O. A. Whitlow, the operator of the street car, had given his employer a written statement or report as to the circumstances of the collision, and counsel for the plaintiff called upon Whitlow to produce it. The statement turned out to be in the possession of the Virginia Electric and Power Company's trial counsel, Archibald G. Robertson, who declined to produce it.
Robertson was then called as a witness on behalf of the plaintiff, and while he admitted that the desired statement was in his possession, he again declined to produce it, contending that it was not admissible in evidence. The court, however, overruled this contention and ordered that the statement be produced. Robertson refused to obey this command, stating that he did so "with the greatest deference and greatest respect" because he considered that his duty to his client compelled him to take that course. Thereupon the court ruled that Robertson was guilty of contempt and imposed a fine upon him.
Moreover, due to Robertson's disobedience of its order, the court struck out the Virginia Electric and Power Company's plea of not guilty and ordered that the case proceed, so far as that defendant was concerned, "as on a writ of inquiry to assess the damages" against it. After the evidence had been completed the court instructed the jury that for reasons appearing proper to it, "all...
To continue reading
Request your trial