(118 Ohio St. 480) ent judgment. It is claimed that by the filing YOUNGSTOWN & SUBURBAN RY. CO. v. of the amended petition the plaintiff below

Where, in an action for damages sounding in tort, the testimony of the plaintiff clearly and unmistakably established negligence on the part of the plaintiff, directly and proximately

contributing to the production of the injury complained of, and there is no evidence in the record tending to show that the negligence of the other party was wanton or willful, and hence of such a character as to relieve against contributory negligence, it is the duty of the trial court, at the close of all the evidence, to direct a verdict in favor of the defendant, and the omission so to do is prejudicial error.

Error to Court of Appeals, Mahoning County.

Action by Mabel Faulk against the Youngstown & Suburban Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and rendered.-[By Editorial Staff.]

The facts are stated in the opinion. Osborne Mitchell, of Youngstown, for plaintiff in error.

was permitted to abandon the case made in the original petition and substitute therefor a wholly different case. We are unable to see substantial merit in this claim. The trial court was clearly within its right, under the statutes relating to amendments of pleadings, in permitting this amended petition to be filed. The substance of the amended petition was to add a few additional grounds of negligence on the part of the interurban company, but, in view of the conclusion we have reached, this alteration of the pleadings be

comes immaterial. Even if it be conceded that evidence was introduced by the plaintiff in the second trial tending to sustain these additional alleged grounds of negligence on the part of the interurban company, and also tending to sustain the grounds mentioned in the original petition, and carried into the amended petition as well, it would still be impossible to sustain the right of the defendant in error to recover in this case.

Briefly stated, the accident to the defendant in error happened near the midnight hour, while she was standing at a station on the line of the interurban company, waiting to board an in-coming interurban car-the last car going in that direction that night. There were between 30 and 50 other persons also waiting at that station to board that car. The car was traveling in a northerly direction. The station in question was at the

Fred J. Heim and John A. Willo, both of intersection of a public highway by the interYoungstown, for defendant in error.

KINKADE, J. This case has been twice tried. The defendant in error, Mabel Faulk, secured a verdict and judgment in her favor in the first trial, which was affirmed by the Court of Appeals, but reversed by this court. That case is reported in 114 Ohio St. 572, 151 Ν. Ε. 747. The facts are reviewed in the opinion. No useful purpose could be served by a restatement in full detail of the facts here. If the motion for a directed verdict for the defendant, made at the close of the plaintiff's evidence in the first trial, had been renewed at the close of all the evidence, and overruled, this court would probably have not only reversed that judgment, but would have then entered here the judgment that should have been entered by the trial court; that is to say, a final judgment in favor of the interurban company.

When the case was remanded for new trial by this court, the defendant in error procured leave of court to file an amended petition. The granting of this leave was objected to by the interurban company, and exceptions saved, and that action of the trial court is now assigned by plaintiff in error as one of the errors of the trial court at the second trial which calls for a reversal of the pres

urban tracks. All passengers got aboard the car from the west side of the track. A space of ground for the use of persons boarding the cars had been covered with cinders or slag, so that it would not become muddy in wet weather. This space was about 25 feet long, running southerly from the highway line, and was level with the interurban tracks. It was from 8 to 10 feet wide at the northerly end, and diminished gradually in width to the south. The defendant in error reached the station a little in advance of the time when the car was due to arrive. In company with one or two others, she crossed the interurban tracks and waited on the east side of the track until the motorman of the car gave a whistle signal of its approach to the station. The defendant in error heard the signal when the car was some distance from the station. She then recrossed the interurban tracks to the west side, in order to board the car when it should stop at the station. When she thus crossed back to the west side of the track, the car was near to the station, and the headlight of the car was plainly visible, and was seen by the defendant in error. She had all the information possible that any one could have that the car was coming. The others who were waiting to board the car the same as the defendant in

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(161 Ν.Ε.)

Judgment reversed, and final judgment for plaintiff in error.

MARSHALL, C. J., and ROBINSON, JONES, and MATTHIAS, JJ., concur.

(118 Ohio St. 487)

MOORE v. STATE. (No. 20965.) Supreme Court of Ohio. May 16, 1928.

(Syllabus by the Court.)

1. Constitutional law257321-Defendant in criminal case is entitled to have case heard by impartial tribunal; refusal to hear evidence of judge's prejudice on request to remove case

triable without jury held denial of due process

to defendant convicted.

A defendant in a criminal proceeding is entitled to have the case heard and determined by an impartial tribunal, and, where the defendant is not entitled to demand a jury, and the judge or magistrate is the trier of the facts, and it is claimed that the judge has predetermined the fact of guilt, and that the defendant will be unable to secure a fair trial for that reason, and asks that the cause be removed to some other court of competent concurrent jurisdiction, and offers to introduce evidence in support of the request for removal, which is refused, and the cause proceeds to judgment of conviction and sentence, such refusal to hear evidence is a denial of due process of law.

2. Criminal law 1166 (1) Judges 51(4)

"Now comes Nellie Moore and objects to this court hearing this case, and requests the prosecutor to remove same to some other court of

competent jurisdiction, for the reason that she

believes that she will be unable to secure a fair trial before this court, for the reason that, on the day when she was arrested and gave bond, the judge of this court stated to her and her father that she had been hauling booze around here too long, and that he knew all about her, and he was getting tired of this thing being done by her, and by reason thereof he has made up his mind on the merit of the case."

The motion was overruled, and thereupon the defendant offered to introduce oral testimony in support of the motion, which the court also overruled, and exceptions were taken to both rulings. The case proceeded to trial, and, after judgment was rendered, error was prosecuted to the court of common pleas, and later to the Court of Appeals, which courts affirmed the judgment. In this court the plaintiff in error relies solely upon the claim that the probate court was biased and prejudiced, that the objection was timely made, and that by being compelled to proceed before a biased judge she has been denied due process of law.

An examination of the record discloses that the accused did not testify in her own behalf, and the testimony offered by the state was of the most conclusive nature. The legal questions involved are, however, of such importance as to challenge our serious attention,

-Court must hear evidence of judge's prej. regardless of the question of guilt or inno

udice offered before trial in case triable without jury, and refusal is reversible erroг.

Upon motion being filed before a probate judge in a misdemeanor case, where the defendant is not entitled to jury trial as of right on the ground that defendant will not be able to secure a fair trial before the court, it is the duty of the court to hear evidence upon the issue of bias or prejudice, if the objection is made and the evidence offered before trial, and refusal to do so is reversible error.

cence. The affidavit recites that the probate judge stated to her and her father at the time of her arraignment "that she had been hauling booze around here too long, and that he knew all about her, and he was getting tired of this thing being done by her." The affidavit does not allege that the judge had stated that he had made up his mind on the merits of the case, but the accused declares that he had so made up his mind. More serious than the allegations of the affidavit is the fact that the court refused to permit her to introduce testimony in support of the affidavit and motion for removal of the cause to some other court of competent jurisdiction. In the oral argument of the case in this court, it was stated by counsel for the state that F. L. Johnson, of Xenia, for plaintiff in the affidavit did not correctly report what the judge had said. Not being advised by J. Carl Marshall, Pros. Atty., of Xenia, for the record as to what the judge may have the State.

Error to Court of Appeals, Greene County. Nellie Moore was convicted of unlawful possession of intoxicating liquors, and she brings error. Reversed and remanded.-[By Editorial Staff.]

error.

MARSHALL, C. J. Nellie Moore was convicted in the probate court of Greene county, Ohio, on a charge of unlawful possession of intoxicating liquors, and was assessed a fine of $1,000. Before trial began, a motion was made to remove the case to some other court of competent jurisdiction on account of the bias of the probate judge. That motion was supported by an affidavit as follows:

said, it will be assumed that he said exactly what was stated in the defendant's affidavit. However grossly the judge may have been misrepresented, he did not see fit to challenge the correctness of the affidavit, and no justification is apparent for refusing the defendant opportunity to offer further testimony upon the same issue.

In the case of Tumey v. State, 273 U. S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 50 A. L. R. 1243, the Supreme Court of the United States for

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(161 Ν.Ε.)

the first time declared that the disqualification of a judge constituted a violation of the due process clause of the Fourteenth Federal Amendment. That case was based solely on the question of the interest of the trial judge in the outcome of the cause, but it would be a very narrow interpretation of that opinion to hold that any other serious disqualification did not equally constitute a bar to a judge hearing and deciding a cause. The spirit of that decision is that any litigant is entitled to have his case heard and decided by an impartial tribunal. The following quotation from the opinion in the Tumey Case is quite pertinent as showing the spirit of that decision:

"The plea was not guilty and he was convicted. No matter what the evidence was against him, he had the right to have an impartial judge. He seasonably raised the objection and was entitled to halt the trial because of the disqualification of the judge.

*

*

*"

Since the decision of the Tumey. Case by the United States Supreme Court, this court has had occasion in several cases to interpret that decision, and it was decided in the case of Tari v. State, 117 Ohio St. 481, 159 Ν. Ε. 594, that the disqualification of a judge is waived, unless objection be made thereto at the earliest available opportunity, and, if known to the complaining party at or before the trial, and no objection is made in the trial court, the disqualification will be deemed to be waived. That decision was rendered December 21, 1927.

judge or magistrate would ipso facto disqualify the judge, but we are unqualifiedly of the opinion that any one who asserts such a claim should be afforded an opportunity to support the claim by the introduction of testimony. While it would not be the duty of the judge to tamely submit to unfounded imputations upon his integrity, he should at least permit a record to be made, so that a reviewing court may determine whether or not there has been a trial before an impartial tribunal. It is needless to say that, if a clear case is made against the judge, or even a strong showing of bias or prejudice, the judge should voluntarily strike the affidavit or information from the files and let it be heard before some other tribunal of concurrent jurisdiction.

It has been urged in argument that no provision has been made for the determination of an affidavit of prejudice against a probate judge by some other impartial tribunal. This fact is not by any means decisive of the controversy. It only makes it the more necessary that the judge should be careful not to undertake the determination of a controversy, where his disqualification is seriously brought in question. It has been urged by counsel for the state that the mere filing of a claim of bias and prejudice is not sufficient, and with this view we are in hearty accord. It would seriously interfere with the administration of justice if any unfounded claim would automatically take away the court's

The Supreme Court of Pennsylvania had jurisdiction. Our attention has been called to

the Tumey Case under consideration in the case of Commonwealth v. Dabbierio, 290 Pa. 174, 138 Α. 679, decided June 25, 1927, wherein that court declared that the disqualification of the judge would not be considered where the point was not raised in the trial court. That decision received the concurrence of six of the seven judges. The Supreme Court of Mississippi, in the case of Bryant v. State, 146 Miss. 533, 112 So. 675, decided May 16, 1927, cited and commented upon the Tumey Case, and declared the following syllabus:

"Where defendant in prosecution in justice court for violating game laws failed to object to trial before justice of the peace, under Const. 1890, § 171, on ground that he was interested in outcome of prosecution in that his compensation depended on conviction, either before the trial or any time before the justice of the peace lost control of the judgment, defendant is in the attitude of having consented thereto and to have waived alleged disqualification."

[1, 2] In the instant case, while it does not appear, and we do not decide, that the judge was disqualified by reason of bias or prejudice or having prejudged the case, it does clearly appear that the defendant was not afforded the opportunity to offer testimony upon the point. We would not hold that a frivolous and unsupported claim of bias or preconceived judgment on the part of the

section 11438, General Code, relating to the disqualification of petit jurors. The Legislature declared in that section that any suspicion of prejudice against or partiality for either party may render a juror unsuitable, and further provides that the validity of such challenge shall be determined by the court, and be sustained if the court has any doubt as to the juror being entirely unbiased. It therefore appears that the claim of prejudice on the part of a juror in a civil case does not automatically cause his dismissal as a juror, but that there must be a determination of the fact.

Section 13653, General Code, is even more significant. That section provides that a juror called to render service in a capital case is not automatically disqualified by reason of having formed or expressed an opinion as to the guilt or innocence of the accused. Where it appears that a juror has formed or expressed such opinion, the court must examine the juror under oath as to the grounds thereof, and, if the juror says that he believes he can render an impartial verdict notwithstanding such opinion, and the court is satisfied that such juror will render an impartial verdict on the evidence, the court may admit him as competent to serve as a juror. Manifestly, if a juror in a capital case is not ipso facto disqualified by having formed or expressed an opinion on the merits of the case, for a stronger reason a judge should not be held to be automatically disqualified by reason of having an opinion as to the guilt or innocence of the accused in a misdemeanor case. The legal training of the judge, as well as the integrity of one who has been chosen to a judicial position, should be a guaranty that he would be at least as competent to disregard a previously formed and expressed opinion as a juror.

It follows from the foregoing discussion that error has intervened to the prejudice of the defendant in this cause by reason of the refusal of the trial court to admit evidence bearing upon the issue of his own alleged disqualification. The judgment will therefore be reversed and remanded for further proceedings.

Judgment reversed.

DAY, ALLEN, KINKADE, ROBINSON, JONES, and MATTHIAS, JJ., concur.

(118 Ohio St. 494)

REHKLAU et al. v. BOURNE. (No. 20692.)

Supreme Court of Ohio. May 16, 1928.

(Syllabus by the Court.)

1. Appeal and error 1053(6)-Admissions of negligence by driver of automobile containing guest suing another automobilist held not prejudicial error, where instruction was given that negligence was not attributable to guest.

In an action for damages for personal injuries arising by reason of a collision between two automobiles, brought by a guest riding in one of the cars against the owner and driver of the other car, evidence offered as a part of the res geste by the defendant and admitted by the court, over the objection of the plaintiff, tend ing to establish admissions made by the owner and driver of the car in which the injured guest was riding, made at the time of the accident, and which admissions were to the effect that the collision was caused by the negligence of the driver of that car, does not constitute prejudicial error against the plaintiff, the injured guest, when the court instructs the jury that negligence on the part of the driver of that car cannot be attributed to the guest riding in the car, and thereby used to defeat a recovery by the guest from the owner and driver of the

other car involved in the collision.

2. Witnesses 379(2)-Admissions of negligence by driver of automobile held competent to refute driver's testimony, though too remote for res gestæ.

Even though such admissions be too remote in point of time to be admissible as a part of the res geste, if they tend to refute the testimony given at the trial by the driver of the car in which plaintiff was riding as a guest, when called as a witness for plaintiff, they would be competent on that ground, and their admission would not constitute prejudicial error against the plaintiff; the negligence of the driver not

being attributable to the guest, and the jury being so charged by the court.

Error to Court of Appeals, Lucas County. Action by Louis Bourne against Edward H. Rehklau and others. Judgment for defendants by court of common pleas was reversed by the Court of Appeals, and defendants bring error. Reversed, and judgment of court of common pleas affirmed.-[By Editorial Staff.]

Eugene Rheinfrank, C. J. Lindecker, and A. E. Simmons, all of Toledo, for plaintiffs in error.

Fraser, Hiett, Wall & Effler, of Toledo, for defendant in error.

KINKADE, J. This is an action for the recovery of damages covering personal injuries sustained by a collision of two automobiles at an intersection of the Buffalo and Erie highway and a street or lane known as McKinley street, at the hour of about 7:45 p. m. on May 18, 1925, and about two miles east of the town of Westfield, in the state of New York. Both cars were traveling eastward on the Buffalo and Erie highway. The lead car, a Ford roadster, was being driven by its owner, Walter Tucker, and riding with him in the car as a guest was the defendant in error, Louis Bourne, the injured party, who brought this action at Toledo, Ohio, the home of Edward H. Rehklau, the owner of the other car, a Cadillac sedan, driven by his wife, and with his knowledge and consent, but not in furtherance of any business of his. Riding with the driver of the Cadillac car was a guest. by the name of Mildred Hipp. A statute of the state of New York made the owner of an automobile jointly and severally liable with the driver of the car for any injuries negligently inflicted upon another while the car was so being driven with the consent of the

owner.

The negligence charged by Bourne was that the Cadillac car was being driven at a high and dangerous rate of speed, to wit, about 50 miles per hour; that the driver of that car negligently failed to keep it under proper control; that the driver of the Cadillac car attempted to pass the Ford car on the lefthand side as the Ford car was turning to the left into McKinley lane, without giving any warning or signal by whistle or otherwise to the occupants of the Ford car that the passing was about to be accomplished.

The driver of the Cadillac car denied all acts of negligence charged, and averred that the collision was occasioned solely by reason of the negligence of the driver of the Ford car in suddenly turning his car to the left immediately in front of the Cadillac car, without giving any signal or warning that he intended so to do, as it attempted to pass the Ford car after giving to the occupants

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