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stern and determined, but it is never said: “Manifestly, therefore, it was necessary to be ill-tempered or dis- the appellant's duty to accept the courteous. Even if we should adopt ruling of the court as final, and, if he appellant's theory that the judge was desired to challenge its legal correctin the wrong, still we cannot assent ness, to do so by an appeal or by such to the conclusion that he was not him- other method as the law provided, in self guilty of a contempt, for the ill order to obtain the redress he solictemper or harshness of the judge will


His duty to his client was not excuse a positive disobedience of equally obvious. It did not consist the orders of the court, or a con- in 'throwing up his brief,' to use an temptuous disregard of its authority.” expression of the common-law law

In Mahoney v. State (1904) 33 Ind. yers, when the court failed to accept App. 655, 104 Am. St. Rep. 276, 72 his view of the case. Nor did it conN. E. 151, the attorney for the de- sist in challenging the court to accept fendant in a criminal action, after the the view he maintained, and protestcourt had overruled an objection ing as an alternative that he never made by him, commenced to argue the would cross the portals of the court question, and when the court stated again.

Other avenues of rethat the ruling had been made, and dress were open to him, and higher that it desired no further argument, courts existed to correct its legal said to the court in a loud and offen- errors. Knowledge of these facts we sive manner: "I want to know wheth- must assume the appellant possessed, er I am going to be heard in this case and that situation renders his conin the interest of my client or not." duct, upon his own showing, inexAfterwards, during the examination cusable.” of a witness, the court remarked In State Leftwich (1889) 41 that the witness had already answered Minn, 42, 42 N. W. 598, it was held the question put by the attorney, that while counsel trying a case may whereupon the latter referred to the except to the rulings and orders of reporter, saying: I want to see the court, he is bound to respect and whether the court is right or not;" obey them; and that, if, after the and again, when the court had ruled court has ruled against a particular upon the admission of certain evi- course of examination of a witness, he dence over the objection of the at- still persists in the same course of torney, he stated that there was no examination, he may be guilty of a principle of law that would support contempt. The court said: “The such a proposition, and there was no relator, having presented the question reason in it. For these and other of his right to follow that course and insults of like kind, the attorney was got a ruling upon it, ought, if he sined $50 for direct contempt of court. deemed the ruling erroneous, to have The judgment was appealed, but only taken his exception, and afterwards upon the ground that the fine was not conformed to the course indicated by imposed through proper legal pro- the ruling. He had no right to atcedure.

tempt to evade it. As to that it is In Re Mindes (1915) 88 N. J. L. immaterial whether the ruling was or 117, 95 Atl. 743, it was held that was not erroneous.” neither his duty as an officer of the In Dodge v. State (1895) 140 Ind. court nor his duty to his client re- 284, 39 N. E. 745, the defendant, an quires an attorney to condemn the attorney, in the voir dire examination court's ruling and to persist in refus- of a juror, after asking the juror a ing to obey it; and that the conduct question which the court directed not of an attorney in indulging in invece to be asked again, characterizing the tive and scandalous innuendo that same as absurd, defiantly put the same tended to degrade and humiliate the question again to the juror, and, upon court, when the court expressed a de- being rebuked by the judge, said to sire to hear no further argument at him: “If that language was used that time, was contempt. The court towards me on the street I would know how to answer it, but here in stood. It was out of place, uncalledcourt I cannot.” Such conduct and for, and neither justified nor excused language were held a contempt. The by the ruling of the court, and when court said: “The contention of ap- notified that it was regarded as ofpellant that the language of the judge fensive, no disclaimer of such an was provoking, and also detrimental intention was made by the attorney." to the interest of his client, and hence In Russell v. French (1885) 67 he ought to be excused for his con- Iowa, 102, 24 N. W. 741, one of the duct, can have no weight or consid- attorneys asked a witness a question eration from a legal standpoint. The to which objection was made by opwrong of the judge, if any, cannot posing counsel on the ground that justify the misconduct of counsel. the question had been already Holman v. State (Ind.) supra. It is answered, and thereupon the court, the imperative duty of an attorney after hearing the prior questions to respectfully yield to the ruling and and answers read by the shorthand decisions of the court, whether right reporter, announced his decision or wrong, reserving the rights of his sustaining the objection, and stating client by proper and necessary ex- that the question had been already ceptions thereto.”

answered. Immediately upon such While it is the right and duty of ruling the attorney sprang to his counsel to make necessary objec- feet, and, turning to the court, said tions and take necessary exceptions, in loud tones and with insulting it was held in State ex rel. Cary v. manner, "She has not answered the District Ct. (1910) 110 Minn. 446, question." Such conduct was held 125 N. W. 1020, that for an attorney contempt of court, though the quespersistently to resort to a frivolous tion may not have been answered. method of objections and motions, the The court said: “When the court evident purpose of which is to in- made the ruling it did, whether right terrupt and delay the trial, and to or wrong, the plaintiff should either use insulting language towards op- have submitted thereto, taken an exposing counsel, and to adopt a de- ception, and had the error, if it was fiant attitude when called upon to one, corrected on appeal, or in reshow cause, was contempt for which spectful language and manner have a penalty might be inflicted.

addressed the court and asked to have In Redman v. State (1867) 28 Ind. the ruling reconsidered; but, if the 205, where, during the trial of a crim- court declined to hear him, the plaininal case,-one of the defendant's tiff should have acquiesced therein. attorneys having his questions upon The time for argument is before the cross-examination ruled out as im- decision. Counsel then have the right proper,-it was held that for the at-, to insist on being heard. When a torney to reply, “This is a cross- decision has been made, the time for examination, and if we cannot ex- argument has passed, unless peramine our witness he can stand aside," mission of the court is asked and obwas sufficiently offensive and disre- tained. Of course, it will be underspectful to warrant the court in re- stood, if the right to a rehearing fusing the attorney the right to ask exists and is asked, the right to make further questions, where his associ- an argument would seem to be apates

ordered to conduct the parent; but even in such case the cross-examination instead. The court court in its discretion might decline was not called upon to decide whether to hear the argument. Instead of or not such conduct was criminal taking this course, or one approximatcontempt for which the attorney ing thereto, the plaintiff, as the might be punished, but it said: “The court thought, in 'loud tones and inremark made by the attorney in this sulting manner,' directly contradicted case might readily be construed as a statement of fact made by the a direct reflection upon the impar- court, and upon which the decision tiality of the court, and was so under- was based. We therefore feel constrained to say that such conduct contempt for the relator to reply, "I was contemptuous, and had a tendency don't think that is necessary, for I to impair the respect due to the au- think this magistrate wiser than the thority of the court. If the plain- supreme court,” the words being tiff believed the statement made by used in an ironical sense, and inthe court to be incorrect, and he tended as sarcasm; and it mattered deemed it material for the interest of not that relator acted under a mishis client to have it corrected and apprehension as to the powers of the decision changed, he should, in the justice to punish for contempt. respectful language, have called the


Speaking of the use of irony and sarattention to what he deemed to be casm, the court said: “This is enthe mistake. It is quite apparent tirely allowable towards those standhe did not do this, but that, at least, ing in relations of equality, where no he sprang to his feet and in une- obedience or submission is due. But quivocal language directly contra- in those relations where the law, for dicted what the court said. Whether any cause, requires submission and the plaintiff's manner was insulting obedience, the case is different. In we are unable to say; but that we the relation of parent and child, or must assume it to have been so we teacher and pupil, or the court and have no doubt. The plaintiff, as we its bar, the decisions of the superior, understand, claims that he in point for the time being, are final and are of fact was right and the court to be respected, whether wise or wrong, the contention of the plain- foolish in fact. And they cannot be tiff being that the question asked the encountered with sneers and sarcasm, witness had been evasively and not however just and appropriate the directly answered, and he seeks to weapon may seem to those who use so show by the affidavits filed by him. it, or to others.” We think it is immaterial how this ! In Ex parte Bullington (1912) 66 may be. Conceding that he is correct Tex. Crim. Rep. 256, 145 S. W. 1190, in this respect, still we do not think it was held that a lawyer has a right he was justified in addressing the in his argument to state to the jury court as he did."

his theory of the law and to argue In State V. Garland (1873) 25 whether or not the evidence would La. Ann. 532, the defendant, an at- render his client liable, and that, this torney at law, persisted in interrupt- being so, the conduct of the atto ey ing the court while opinions were in insisting upon his right to argue being read, and for such conduct was the law as applicable to the facts, fined for contempt of court.

It was

despite the order of the court, was held that for the attorney to not contempt of court. abusive language toward the judge In Ex parte Winn (1912) 105 Ark. and to commit an assault upon his 190, 150 S. W. 399, the judge had on person during a recess, but before a prior occasion, and in the absence adjournment, under pretext of re- of the petitioner, an attorney, ansenting the words and acts of the nounced from the bench the latter's judge while on the bench, was suspension from the practice of law. contempt of court. It was further On the morning of the occasion comsaid that an attempt by answer to plained of the attorney appeared in justify such conduct is an aggrava- court, took his seat inside the rail, tion of the contempt.

and was ordered from the court room In Re Cooper (1859) 32 Vt. 258, when the judge observed his presence. where, after deciding question It was held that the attorney was raised by counsel, the justice of the not guilty of contempt in immediately peace trying the case turned to the arising and explaining to the court relator and remarked, “It might be that he desired a hearing, where the convenient enough for

you, Mr. evidence showed that neither the Cooper, to have the supreme court manner nor the conduct of the attorsit here all the time,” it was held ney was disrespectful to the court.




In Re Heverin (1875) 32 Phila. Leg. the court. The court said: “The Int. (Pa.) 188, an attorney, upon the attitude taken by counsel was such as court's refusal to adjourn to allow him must necessarily have impressed the to prepare a reply to the common- jurors and others attending the court wealth's counsel, replied: "Then if with the idea that the judge had deyou will not give me time, I will not prived a prisoner on trial of a subspeak unless my legal rights are sus- stantial right, and hence acted in an tained. Let the responsibility rest arbitrary manner. If the court were with the court,” and made the same wrong in its ruling (and we are not rude answer when the court suggested called upon now to determine whether that he might address the jury fol- it was or not), an adequate remedy lowing the address made by the prose- was afforded by the law." cuting attorney. Again, after the But in Ex parte Coffee (1913) 72 court had charged the jury, he said Tex. Crim. Rep. 209, 161 S. W. 975, with great vehemence: “I desire where the court granted one not a your Honor to say to this jury there licensed attorney the privilege of is not a word of evidence to warrant appearing for his minor son in a a conviction.” The court having de- criminal prosecution, it was held not clined so to charge, he continued in to be contempt of court for the county the same manner: “Then I ask that attorney to state to the court that if my client shall be heard,” etc. Other such privilege were given he would indignities and insults were offered sever his connection with the case, the court, for all of which the attorney nor for him so to sever his connection, was adjudged in contempt and fined. where the court did not order him to Said the court: If the respondent proceed with the case, but adjourned, had conceived that his client was and subsequently appointed another aggrieved by the rulings of the court, attorney, who conducted the prosecuinstead of losing his temper, he tion. The court said: “The simple should have submitted to the rulings, fact that a lawyer states he severs dand after the trial reviewed them his connection with a case in the upon motion for a new trial or in the

presence of the court would not, in supreme

He should have our judgment, in and of itself, form steadily kept before him that it was a basis of contempt punishment. the duty of the court to decide every There must be something more. If question raised by the learned coun- the court had ordered him to proceed, sel on either side, according to the and he had disobeyed the order, we court's best judgment of the law, and would have a different proposition. not lose his temper when such judg

There may be reasons why an attorney ment was given.

may under some circumstances sever In People ex rel. Chanler v. New

his connection with a case, and in burger (1904) 98 App. Div. 92, 90

which he would not only be justified, N. Y. Supp. 740, where an attorney

but the ethics of his profession, as persisted in his attempts to compel

well as the law, may demand or authe court to reverse its ruling, and

thorize such action. We are of the abruptly deserted the case in the midst of the trial because he could

opinion, therefore, that the mere act not coerce the court into compliance

of stating he severed his connection with his request, it was held proper

with the case would not be sufficient for the court to assess a fine for con

to justify the court in placing the tempt, though the conduct of the at

attorney in contempt. We are of torney was prompted by excessive opinion the county attorney was not zeal, under a misunderstanding, for in contempt of court in stating that the time being, of what his duties

he severed his connection with the required, and though there was no in- case under the circumstances." tent to reflect upon the integrity of

L. S. E.


(N. J. -, 123 Atl. 760.)



New Jersey Court of Errors and Appeals March 3, 1924.

(- N. J. – 123 Atl. 760.) Trial — jury - injury to passenger on jitney bus explosion of tire.

The jury must determine the question of liability of the proprietor of a motor bus by explosion of a tire, where noises emanating apparently from the wheel had attracted the attention of the driver several times, so that he stopped to examine the cause.

[See note on this question beginning on page 1202.]

APPEAL by defendant from a judgment of a trial court in favor of plaintiff in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Affirmed.

The facts are stated in the opinion of the court.
Mr. George L. Record for appellant. and the trial court, refusing a mo-

Messrs. Lazarus & Brenner for re- tion to nonsuit and a motion to dispondent.

rect a verdict, allowed the case to go Minturn, J., delivered the opinion to the jury, who found for the plainof the court:

tiff. The plaintiff boarded a jitney bus The legal objection now urged to of the stage type, owned by the de- the judgment is that the trial court fendant and operated by his servant, erred in refusing to nonsuit or to and used upon the Hudson county direct a verdict, for the reason that boulevard as a common carrier of

the accident was of that unavoidable passengers. It was equipped with character which no degree of care pneumatic tires which were placed could have obviated. We are inupon wheels which revolved under clined to conclude that the learned the seats immediately under the trial court was not in error in this floor of the vehicle. While in opera

respect. It is unnecessary to place tion it was observed that the bus the case in that character of tortemitted a peculiar noise, emanating feasance, which falls under the rule apparently from the location of the inherent in the maxim "res ipsa loright rear wheel. Three times the quitur," although

quitur," although it might with driver left his seat to observe the some degree of reason be contended conditions under which the noise that it is within that category of was produced, but returned to his torts which, at least, calls upon the place, apparently unable to locate defendant for an explanation with the trouble. Thereafter, while the the view of eliminating him from bus was proceeding upon its course

the category of an active or passive under those conditions, the tire in

tort-feasor. Hughes v. Atlantic question with a loud explosion blew City & S. R. Co. 85 N. J. L. 212, out, raising a portion of the flooring L.R.A.1916A, 927, 89 Atl. 769; Macover which the plaintiff was sitting, kenzie v. Oakley, 94 N. J. L. 67, 108 to such a degree as to strike him and Atl. 771; Mannon v. Vesper Lodge, inflict injuries which present the

97 N. J. L. 215, 116 Atl. 784; Higbasis for this suit. This situation

This situation gins v. Goerkekrich Co. 91 N. J. L. was fully corroborated by witnesses 464, 103 Atl. 37. at the circuit, the defendant offering In the Mackenzie-Oakley Case the no testimony in rebuttal thereof, plaintiff, an invitee, was injured by

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