The Case of the Unidentified Defendant \(Continued from Page 1 insurance company would pay damages. Jones told the jury that Walls would not be paying the damages, that Carney “knows it is untrue that Walls will have to pay $80,000 in this case,” and added, “Let us worry about that. We will collect it from the proper parties. It is not fair to say Jack Walls will have to pay it when they know it is not true.” For this, Judge Welch held Jones in contempt, fined him $100, and sentenced him to three days in jail. Appealing for a writ of habeas corpus from the Texas Supreme Court, the three attorneys for Jones maintained in a petition filed late last week that there was no violation of Welch’s order and no evidence that Jones’s action was contemptuous. Before the Supreme Court could have jurisdiction in the case, Jones had to be custody, in accordance with the judge’s order. Therefore, Thursday morning at 9 a.m. Jones surrendered himself to the sheriff in Linden. His attorneys in Austin filed the petition with the Supreme Court, which decided it would hear arguments and grant bail pending the hearing Dec. 2. The clerk of the Supreme Court then wired Cass County Sheriff Jim Wells advising him of the court’s action, whereupon Jones was released, at about 12:15 p.m. Under Texas law, as construed by the courts, an attorney cannot tell a jury in automobile liability damage suits that an insurance company, not the person who is the defendant, would have to pay damages judged to be due the injured party. As the petition for the writ sets out in exhibits, Jones, Brian, & Jones of Marshall, Texas, and Bob Salmon of Linden, representing Larry Green, the injured boy and his father and his guardian, argued that the boy, whose leg had been broken, suffered permanent disabling injury in the accident in question. The boy had been riding on a motor scooter driven by one John Wayne Turner. When the scooter came onto a road from a filling station, it collided with a car driven by Jack Walls, who is the named defendant in the case. Jones, Sr., his son, Franklin Jones, Jr., and Salmon argued that Walls failed to give the motor scooter half the roadway and failed to yield the right of way and asked $80,000 damages, $8,933 for his father and $71,067 for the boy. The petition to Cass County court explained: “Due to the circumstances of the Green family, Larry could have been anticipated to soon start to earn sums of money in support of himself, and by way of contribution to his mother and father.” The boy, said the plaintiff’s petition, had been kept in a body cast for months and then had to wear a steel contraption on his leg. In defense, Attorney Carney of Atlanta and Atchley, Russell, & Hutchinson of Texarkana, representing Walls, filed an answer denying all the allegations, requiring strict proof, and saying the boy was guilty of “contributory negligence” in riding as a passenger on a motor scooter “not adequately equipped to carry a passenger” and driven by “an incompetent and unskilled driver.” The defense also argued that the collision, and Larry Green’s in juries, “were solely and proximately caused by the negligence of said Johnny Wayne Turner, the driver of said motor scooter,” for driving too fast and failing to turn to avoid the collision. ‘In All Fairness’ In the trial, as set out in Judge order finding Jones guilty of contempt, “The beginning of the artaken down, but then counsel for the plaintiffs indicated they would like the remainder of his argument taken.” Carney argued, in part, as recorded by the court reporter: “Gentlemen, are you going to take Jack Walls and penalize him and take away from him the things he has earned and the money he has worked for because when he went and made a turn, someone ran into him?” After further argument that Walls was not to blame for the accident, in which Carney emphasized, “We are sorry he \(the defense counsel continued: “And when it happened, gentlemen, Jack Walls said he turned his car as quick as he could to the left and thought maybe it would keep this boy from running into him, and he got out and carried this boy to the hospital, and he called his wife, Mrs. Walls, as soon as he could, and she came and stayed at the hospital and they carried him to the doctor, and she waited there until Larry Green’s mother got there, and they gave him the best care they possibly could. “Gentlemen of the jury,” Carney then said for the defense, “what was their reward for that, by coming in and saying, ‘Let’s take $80,000 away from them because we ran into the back end of their car and they carried us to the hospital. Yes, we will reward them by taking away $80,000 in damages for their having been so nice to the little boy.’ That is not much thanks. This man and this lady did everything they could to help the boy that ran into them. They carried him to the hospital and they get this kind of thanks from these people for staying and looking after him until his parents got there. “Gentlemen,” Carney said, “I say when a man gets out and works for his money and gets out and saves it up and when he gets out and someone runs into him with a motor-scooter or car that he shouldn’t be taken into court and his money taken away from him and when it was not his fault. “I say in conclusion, in all frankness,” said Carney, “I think Jack Walls did everything in his power to keep the Motor-scooter from hitting him; that he turned when the street was clear and this boy shot out and hit him. Now, they are trying to say, ‘Take away from him $80,000.’ ” Argument at Bench Jones strenuously objected to Judge Welch that the Carney arguments about who would pay the damages were improper. The lawyers clustered around the judge’s bench, and, as recorded by the court reporter, this conversation ensued: Mr. Jones: If the Court please, I didn’t want to interrupt Senator Carney, but I urge a stringent objection to his argument about taking money away from Jack Walls when it is known that this is a case covered by liability insurance, and I don’t think it could be cured by an instruction. The Court: By whom is it known? Mr. Jones: It is known to Sena tor. Carney and to these gentlemen. The Court: It is over and above the amount of liability. I overrule your objection. Mr. Jones: I am going to have to answer it. Mr. Hutchinson: I ask that the court instruct counsel not to mention insurance. The Court: Yes, counsel, with reference to liability insurance, you are not to mention that. Mr. Hutchinson: How do you propose to answer it? Mr. Jones: Am I to be told that I can’t answer what he said that they were taking it out of the pocket of Jack Walls? The Court: You can answer, but the court’s position is you are suing for more than the limit. Mr. Jones: How does the court know that? The Court: From common knowledge that no carrier will carry up to $80,000. Mr. Jones: I have one for $103,000.00. I don’t think the court has that evidence. The Court: No, I said from my knowledge. Mr. Hutchinson: If the Court please, the jury is hearing this and I would like to make a motion that the court declare a mistrial at this time. The Court: Let the record show that this was made at the court’s bench and it would have been impossible, in the Court’s opinion, for the jury to hear it, but you are instructed not to mention any insurance. Mr. Jones: We except. Held in Contempt Welch’s order finding Jones guilty of contempt is so interesting, we reproduce this excerpt from it. Said Judge Welch: over-ruled by the court because the objection had not been made during the argument and ‘ the court had no opportunity to stop such argument nor to instruct the jury not to consider the same; wherefore, the said Franklin Jones, Sr., advised the court that in his argument he intended to answer the argument of Howard Carney by telling the jury that the insurance company would have to pay the judgment and not Jack Walls, the defendant; wherefore, the court, upon motion made by Bun L. Hutchinson, attorney for the defendant, instructed Counsel Franklin Jones, Sr., not to make such remark in his argument to the jury and not to advise the jury that the defendant, Jack Walls, was covered by liability insurance; wherefore, the said Franklin Jones, Sr., informed the court that it was his intention to answer the argument of Howard Carney. Thereafter and during a recess, which immediately followed the above proceedings, the said Franklin Jones, Sr., again advised the court that he intended tto answer the argument of the said Howard Carney and the court again instructed him not to mention insurance, and further that he should not skirt so near to the word “insurance” or facts insstant thereto as to leave the impression with the jury that the defendant, Jack Walls, was covered by liability insurance or say anything that would convey such impression to the jury. Thereafter during the argument to the jury by the said Franklin Jones, Sr., he made the following statements: “I was surprised at Senator Carney coming before this jury and saying, ‘Don’t penaize Jack Walls.’ He argued and argued, ‘Don’t take from his earnings $80,000.00. Don’t take from what he has built up $80,000.00.’ He knows in his heart it is improper. He knows that under the instructions of the court you are not to consider how this judgment may fall, who pays it, how it is paid, or whether or not it is ever paid. He knows it is untrue that Walls will have to pay $80,000 in this case. He knows it is untrue and he will not challenge me when I say that … You are not concerned with who pays it or if it is ever paid. Let us worry about that. We will collect it from the proper parties. It is not fair to say Jack Walls will have to pay it when they know it is not true.” Thereafter and in the absence of the jury, the court made the following statements to Mr. Franklin, Jones, Sr.: “You indic .ated to the court, at the conclusion of Senator Carney’s argument to the jury, that you would answer the Senator’s argument with reference to Mr. Walls’s having to pay this $80,000, that that statement was not true, and that he knew the insurance company would have to pay it. At that time I instructed you not to mention insurance. In conjunction with this, at a recess and out of the presence of the court reporter, I further instructed you along such lines and that you were not to skirt so near as to indicate insurance. The court is of the opinion that your statement that he knew M. Walls would not have to pay it is a direct violation of the direct order of the court, and the court will hold you in contempt and fix your punishment at a fine of One three days in jail.” Judge Welch gave Jones permission then to enter into the record some circumstances that had been taken down by the court reporter. Not only thisJudge Welch added, at the end of Jones’s statement, “The foregoing statements having been consisdered by the Court and are found to be correct and ordered filed as a part of the record in this proceeding;” thus removing from contention the events which took place between Jones and the judge. This was a fortunate circumstance from Jones’s point of view, since Welch was subsequently killed in an automobile accident. \(The trial took place in Jones in Defense Jones entered into the record this statement: I am Franklin Jones, respondent or relator, and one of the attorneys who participated as one of the counsel for the plaintiffs herein … “My best recollection is that recess was called soon after the argument of Senator Carney or at least before the final argument closing the arguments which I made. During this recess a conversation took place between the court and myself, which I distinctly remember as follows: That the subject came up of the question of insurance in the case and the court stated he had been in the trial of this case some three days and that none of us should do anything that might void the effect of the trial and that he didn’t think I should mention in my closing argument the question of insurance, and as I recall, I believe I asked the court if he meant I couldn’t in any way answer the argument of opposing counsel and he said he didn’t. The conversation continued and the court remarked that he did not think I should skirt around the subject of insurance or perhaps his language was ‘skate on thin ice’ on the question of insurance in the light of the time used i4 the trial of this case. Having had my recol lection refreshed by the court. the court additionally said, “Nor to treat the subject so that the jury would get the impression of insurance.” I am not sure that the language is exact. I want to state that I had no intention whatever of infringing on any order or ruling of the court in my closing argument, a transcript of which as well as the arguments of Senator Howard Carney and Honorable Bun Hutchinson, I have asked to be tendered with this record. I want to state that the comments of the court and counsel with reference to thin ice, etc. were made during the recess and in what I took to be an informal conversation. I have found this court to have a keen sense of humor and a splendid disposition and I don’t think either of us have been mad since this. In this case the argument was not made in anger. I didn’t consider the court’s conversation a formal order or in any sense the pronouncement of a judicial decree but rather in the vein of other conversations had with the court and as more of a helpful hint on the part of the court that might be reported to counsel, which was his friend, not to get out of the record and inject error in the case that might bring about a reversal. In my practice, I have had district judges engage in conversations about the procedure in arguing, and I accept this as’ a suggestion, and in nowise intended any violation of the court’s order and made no conscious effort to do anything but answer the argument of Senator Carney. I want to state that it was known to Senator Carney, Mr. Bun Hutchinson, attorneys for defendants, that there was liability insurance in the case, and it was indicated in that there was a divi
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