Ex parte Fisher , 146 Tex. 328 ( 1948 )

PER CURIAM :

This is an original habeas corpus proceeding in which the relator, Honorable Joe Fisher, seeks his release from an order of the district court of Jasper County, adjudging him in contempt of court, assessing, a fine of $100.00 and a jail sentence of three days, and committing him to the custody of the sheriff.

The contempt order arose in the trial of a workman’s compensation suit in which the relator was attorney for the claimant. The suit was by Anderson Godfrey, claimant, against the Texas Indemnity Corporation for compensation for injuries to claimant’s left foot. His weekly wage rate and the compensation due per week were agree upon by the parties. The only issues remaining in controversy were those with reference to the extent and duration of the injury, and these were submitted to the jury. These issues inquired: (1) if the claimant sustained total incapacity; (2) when the total incapacity, if any, began,v (3) how long it has or will continue; (4) whether claimant sustained a partial loss of the use of his foot; (5) when'the partial loss of use, if any, began or will begin; (6) how long ■ the partial loss of use, if any, has continued or will --continue; and (7) what was the extent or degree of partialJioss of use, if any. In the first portion of the charge the trial court gave the usual admonitory instructions to the jury, among which were that the jurors would receive the law f;rom the court as contained in the charge and that they must not discuss what effect any of their anwsrs should have upon the rights of the parties nor of the judgment to be rendered by the court. Thereafter, the court defined “Preponderance of the evidence,” “Natural result,” “Injury,” “Total incapacity,” and “Partial loss of use.”

During his opening argument to the jury the relator began to explain the differences between a general injury and a specific injury, and stated that claimant’s injury was a specific injury to his left foot for which the maximum compensation provided by law was one hundred and twenty-five weeks. He continued: “That is the most compensation Anderson Godfrey could receive, would be one hundred and twenty-five weeks, because his injury is confined to his left foot. That is all we are asking. Now, that means one hundred and twenty-five weeks times the average weekly compensation rate.”

At that point Honorable Joyce Cox, counsel for the insurance company, objected because the jury was not concerned with the computation since such issues were not submitted. Thereupon, the following discourse occurred in open court:

“By the Court: That has all been agreed upon.

“By Mr. Fisher: I think it is material, Your Honor, to tell the jury what the average weekly compensation is of this claimant so they can tell where he is.

“By the Court: They are not interested in dollars and cents.

“By Mr. Fisher: They are interested to this extent—

“By the Court: Don’t argue with me. Go ahead. I will give you your exception to it.

“By Mr. Fisher: Note our exception.

“By the Court: All right.

“By Mr. Fisher: This negro, as I stated, can only recover one hundred and twenty-five weeks compensation, at whatever compensation the rate will figure under the law.

“By Mr. Cox: I am objecting to that discussion, Your Honor, as to what the plaintiff can recover.

“By the Court: Gentlemen. Mr. Fisher, you know the rule, and I have sustained his objection.

“By Mr. Fisher: I am asking—

“By the Court: Don’t argue with me. Gentlemen, don’t give any consideration to the statement of Mr. Fisher.

“By Mr. Fisher: Note our exception. I think I have a right to explain whether it is a specific injury or general injury.

“By the Court: I will declare a mistrial if you mess with me two minutes and a half, and fine you besides.

“By Mr. Fisher: That is all right. We take exception to the conduct of the Court:

“By the Court: That is all right; I will fine you $25.00.

“By Mr. Fisher: If that will give you any satisfaction.

“By the Court: That is $50.00; that is $25.00 more. Mr. Sheriff come get it. Pay the Clerk $50.00.

“By Mr. Fisher: You mean for trying to represent my client?

“By the Court: No, sir, for contempt of Court. Don’t argue with me.

“By Mr. Fisher: I am making no effort to commit contempt, but merely trying to represent the plaintiff and stating in the argument—

“By the Court: Don’t tell me. Mr. Sheriff, take him out of the courtroom. Go on out of the courtroom. I fine you three days in jail.

“By Mr. Fisher: If that will give you any satisfaction; you know you have all the advantage by your being on the bench.

“By the Court: “That will be a hundred dallar fine and three days in jail. Take him out.

“By Mr. Fisher: I demand a right to state my position before the audience.

“By the Court: Don’t let him stand there. Take him out.”

The above proceedings occurred in open court at 9:30 A.M. on June 17, 1947. Ten minutes later there was filed with the district clerk an order of contempt which was signed by the trial judge. No commitment was issued on that order. However, the sheriff held the relator upon the verbal order of the trial court until an amended order was filed between three and four o’clock P.M., of the same day. This amended order contained a full recitation of the above proceedings and was accompanied by a formal commitment. That order and commitment were in effect at the time we issued our temporary writ of habeas corpus, and it is upon these latter instruments that we base our decision.

In a habeas corpus proceeding of this character this court has only limited powers. The inquiry before us is whether or" not a citizen is restrained of his liberty without due process of law. In determining this matter we are restricted to the question of jurisdiction, the lack of which would render the judgment void. In passing on the court’s authority we look to the jurisdiction of the subject matter involved in the alleged contempt, jurisdiction of the person, and the power of the court to render the particular judgment. Whether he committed the act charged in conclusively determined by the order or judgment of the trial court in the proceeding wherein he is adjudged in contempt, provided that court possessed jurisdiction. We may consider the facts only for the purpose of determining whether they constituted acts sufficient to confer jurisdiction upon the court to make the particular order. Ex parte Testard, 101 Texas 250, 106 S. W. 319; Ex parte Olson, 111 Texas 601, 243 S. W. 773; Ex parte Lipscomb, 111 Texas 409, 239 S. W. 1101; Ex parte Duncan, 127 Texas 507, 95 S. W. (2d) 675; Ex parte Hughes, 133 Texas 505, 129 S. W. (2d) 270; Ex parte Genecov, 143 Texas 476, 186 S. W. (2d) 225, 160 A. L. R. 1099; Ex parte Norton, 144 Texas 445, 191 S. W. (2d) 713; Ex parte Dulaney, 146 Texas 108, 203 S. W. (2d) 203; 25 Am. Jur. 212, Sec. 92; 39 C. J. S. 539-545, Sec. 36.

In the Testard case, supra, in discussing our powers in pro- . ceedings of this character, this court said:

“This is not an appeal from the judgment of the district court, but an application for the release of the relator, which can be sustained only by making it appear that the judgment is void. * * * The judgment, therefore, is valid against collateral attack, and no amount of evidence offered before this court, tending to show that the relator was in fact innocent of the charge, can now avail him. The question of his guilt or innocence was for the trial court, and was concluded by its judgment pronounced after a hearing.”

That particular language from Judge Williams was quoted with express approval by this court in both the Duncan and Norton cases, supra, wherein in each case similar rules of law were applied.

‘ With these principles in mind we must determine whether the conduct of the relator was such as to invoke the jurisdiction of the court to enter the particular order herein involved. In passing on this question we must consider the proceedings as a whole and not merely isolated portions thereof. If there is any conduct or behavior of the relator contained in the whole proceedings sufficient to constitute a contempt which was within the power of the court to punish, our inquiry comes to an end. Of course, if from our examination of the entire proceedings it appears that the trial court exceeded its powers in making the order which the relator disobeyed or where the act charged was not one which it had the power to punish as a contempt, the alleged misconduct would not as a matter of law constitute a contempt, and the relator would be entitled to be discharged.

From the judgment of contempt it appears, as above indicated, that the relator began to explain to the jury that his client had suffered a specific injury to his foot for which he stated that the maximum compensation provided. by law was one hundred and twenty-five weeks. He further informed the jury that such amount was all his client was asking, which he said meant “one hundred and twenty-five weeks times the average weekly compensation rate.” Objection was made to that argument on the ground that the jury was not concerned with the computation since those issues were not submitted. The objection was sustained. The relator responded that he thought it was material “to tell the jury what the average weekly compensation is of this claimant so they can tell where he is.” The court replied that the jury was not interested in dollars and cents, and for counsel to go ahead and reserve his exception. Notwithstanding the specific orders of the court, and apparently in defiance thereof, the relator repeated to the jury that his client could recover only “one hundred and twenty-five weeks compensation at whatever compensation the rate will figure under the law.” Objection was again made, and the court admonished the relator of his knowledge of the rule and of the fact that the objection to the argument had theretofore been sustained. Then there ensued that unfortunate and regrettable dialogue between the relator and the trial judge which resulted in the infliction of punishment against the relator.

It is obvious that the relator was attempting to inform, and did inform, the jury what the law is with reference to the rights of his client, which was calculated to inform them of the legal effect and result of their answers to the issues submitted. That such conduct and practice is to be condemned under our law of submitting cases upon special issues, cannot be doubted, unless, unlike the circumstances in the court below, the issues are such that men of ordinary intelligence would be presumed to know the legal effect of their answers. Galveston, H. & S. A. Ry. Co. v. Harling, Tex. Com. App., 260 S. W. 1016; McFaddin v. Hebert, 118 Texas 314, 15 S. W. (2d) 213; City of Dallas v. Firestone Tire & Rubber Co., 66 S. W. (2d) 729, writ refused. As was said in the McFaddin case, supra, “the prime object, purpose, and intent of the law for submitting cases on special issue is to remove the jury from any bias in favor of, or prejudice against, either party to the suit, to relieve them from the duty of directly passing on who shall prevail in the suit, and to make it the duty of the jury to answer each question truly as they find the facts to be from the evidence, without regard to what the results of their answers may be.”

In keeping- with the purpose and spirit of the law of special issues, Rule 269, T. R. C. P., provides that arguments on questions of law shall be addressed to the court, and arguments on the facts should be addressed to the jury. It also provides that counsel shall be required to confine the argument strictly to the evidence and the arguments of opposing counsel.

In Ramirez v. Acker, 134 Texas 647, 138 S. W. (2d) 1054, 1055, this court had this to say with reference to the scope of legitimate argument before the jury:

“The rule has long been in force in this State that ‘counsel shall be required to confine argument strictly to the evidence and to the argument of opposing counsel.’ See Rule 39, relating to district and county courts. The scope of argument by counsel to the jury is always under the supervision of the court. It is the duty of the court to maintain decorum during the trial of a case, and to require counsel to limit argument to the facts in evidence. Great latitude is allowed counsel in discussing the facts and issues. Counsel are permitted to show the environments of the case; they may comment upon the bias or interests of the parties and witnesses, and may discuss the reasonableness or unreasonableness of the evidence and its probative effect or lack of probative effect; but such latitude extends only to the facts and issues raised by the evidence in the case. It is only by adhering strictly to this rule that the rights of litigants can be protected and the law administered justly and impartially.”

Measured by these rules it appears obvious to us that the above argument and conduct of counsel was peculiarly within the control, direction and jurisdiction of the trial court. It was the duty and power of the trial judge in the trial of the compensation suit to determine the type, manner and character of the argument before the jury. Of course his rulings thereon were subject to review in the appellate courts, but he has the power to make them whether right or wrong. If they are erroneous the injured party has the plain, simple and adequate remedy of appeal. It was thus the duty of counsel to abide by his decisions even if erroneous; and if any rights of his clients were violated the remedy was by exception and appeal. Any other procedure would result in mockery of our trial courts and would destroy every concept of orderly process in the administration of justice. Consequently, we hold that the court acted clearly' within its jurisdiction and, therefore, the judgment .of contempt cannot be impeached in this collateral proceeding.

The order granting the temporary writ of habeas corpus is set aside, and the relator is remanded to the custody of the sheriff of Jasper County to carry out the judgment of the trial court.

Opinion delivered November 12, 1947.

Rehearing overruled January 21, 1948.