Wampler v. Muller

GRIFFIN, J. Plaintiffs recovered" a jury verdict for $26,400 against defendants arising out of an automobile collision. A motion for new trial was made by defendants. The trial judge, Thompson, left the county on account of a death in his family. He believed that he would not be back [397]in time to hear the motion and felt that another judge might be called in to hear it before he returned. He filed a memo in the ease and sent copies of it to counsel on each side, in which he stated:

“The motion for a new trial in this case has more than usual merit.

“The jury’s conclusion that plaintiff was not guilty of contributory negligence is hard to understand. Plaintiff entered the intersection where there was a stop sign and where the view is obstructed until she was out in the intersection. Defendant, it may fairly be found, was traveling too fast, yet it would seem that had plaintiff used ordinary care in observing the roadway in the direction of defendant’s car, she would have perceived the hazard and would not have driven into its path.

“The amount of damages also requires consideration. It is my view that Dr. Hawkins indulged in speculation and possibilities rather than reasonably certain medical opinions. In my opinion, Dr. Huffman presented plaintiff’s injuries in their proper light.”

Later, counsel for plaintiffs, before Judge Gardner, moved to strike the memo from the files and it was so stricken. That judge suggested that he await the preparation of a transcript before ruling on the motion for new trial. Counsel for plaintiffs stated that no transcript was being prepared and suggested that Judge Gardner might be prejudiced by reason of having read the memo which was filed by Judge Thompson. He then stated that he would arrange for an out-of-county judge to hear it on a day certain. On May 21st, Judge Thompson returned to the county, called respective counsel by telephone, and advised them that he had returned and would hear the motion for new trial on June 4th. Notice of such hearing was given. Counsel for plaintiffs subsequently filed an “objection to hearing of the motion for new trial” by Judge Thompson upon the ground that he was disqualified. He set forth the facts above stated in reference to the filing of the memo in the record and the mailing of copies to each counsel, and claimed that by reason thereof Judge Thompson was prejudiced in favor of the moving parties and against the plaintiffs because he had given advice in writing to them involving matters in the proceeding for a new trial.