Rugenstein v. Ottenheimer

• Decision Date: 13 October 1915
• Citation: 78 Or. 371,152 P. 215
• Parties: RUGENSTEIN v. OTTENHEIMER.
• Court: Oregon Supreme Court

152 P. 215

78 Or. 371

RUGENSTEIN v. OTTENHEIMER.

Supreme Court of Oregon

October 13, 1915

In Banc.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Suit for personal injuries by Albertine H. Rugenstein against Henry J. Ottenheimer. From a judgment for plaintiff defendant appeals. Reversed.

Bean J., dissenting.

This is an action for personal injuries arising from the fact of plaintiff having been struck by defendant's automobile while walking across Washington street, in the city of Portland. The case has been tried three times. Upon the first trial the jury was discharged for failure to agree. The second trial resulted in a verdict for plaintiff, from which an appeal to this court was taken, wherein the judgment of the trial court was reversed, and the cause remanded for a new trial. The cause was again tried, and from a judgment for plaintiff, defendant appeals.

Thos G. Greene and A. H. McCurtain, both of Portland (Bauer &amp Greene, of Portland, on the brief), for appellant. Guy C. H. Corliss, of Portland (Roscoe F. Hunt, of Portland, on the brief), for respondent.

BENSON J.

Defendant's first assignment of error relates to the court's refusal to grant a change of venue based upon the prejudice of the trial judge. The motion for a change of venue was supported by the affidavits of A. H. McCurtain and A. F. Flegal, Jr. From their affidavits it appears that after the decision by this court of the former appeal and prior to the latest trial the judge, speaking of this case, among other remarks, used substantially the following language:

"This case may be tried again, and it will be tried before me. I will see to that. And I will see that the woman gets another verdict and judgment that will stand."

And further:

"The woman got bumped, and now you have bumped her again. But I'll see that the next time this case is tried somebody else will be bumped."

There were no counter affidavits filed, and we must take the contents of these affidavits as admitted. It needs no argument to convince an impartial person that the trial judge had prejudged the issues of this cause, and that he ought not, in the face of the record, to have undertaken the trial thereof. As is said in the case of State ex rel. v. Board of Education, 19 Wash. 8, 52 P. 317, 40 L. R. A. 317, 67 Am. St. Rep. 706:

"To compel a litigant to submit to a judge who has already confessedly prejudged him, and who is candid enough to announce his decision in advance, and insists that he will adhere to it, no matter what the evidence may be, would be so farcical and manifestly wrong that it seems to us that the idea must necessarily be excluded by the very expression 'administration of justice."'

It is true, as suggested by counsel for respondent, that a careful examination of the record fails to disclose any indication of bias or prejudice in the subsequent trial, but we approve what is said in the case of Massie v. Commonwealth, 93 Ky. 588, 20 S.W. 704:

"But, it is said, the record, so far as the judge's rulings are concerned, indicates no hostility or prejudice against the appellant. But that is not the question; for the accused has the right to be tried by a judge that is fair and impartial, and when he has good reason to believe, supported by facts, that he will not afford him such trial, he should not be compelled to take chances of a trial before that judge in order that the truth of the matter may be developed, * * * because there are many ways that a partial or prejudiced judge may knife a party that he is

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