Swan v. Philleo, 34380.

• Decision Date: 14 November 1922
• Docket Number: No. 34380.,34380.
• Citation: 190 N.W. 406,194 Iowa 790
• Parties: SWAN v. PHILLEO ET AL.
• Court: Iowa Supreme Court

194 Iowa 790

190 N.W. 406

SWAN

v.PHILLEO ET AL.

No. 34380.

Supreme Court of Iowa.

Nov. 14, 1922.

Appeal from Municipal Court of Des Moines; O. S. Franklin, Judge.

Action for damages growing out of an automobile collision. Verdict and judgment for plaintiff, and defendants appeal. Reversed.Miller, Kelly, Shuttleworth & Seeburger, of Des Moines, for appellants.

Frank H. Dewey, of Des Moines, for appellee.

STEVENS, C. J.

Des Moines and East Eleventh streets intersect and cross each other at right angles in the city of Des Moines. About 6:30 p. m., August 28, 1919, a collision between an Oldsmobile car, owned by the plaintiff and being driven by one Crouse, and a Hudson Six owned by the appellant Philleo and driven by Bernstein, who were engaged in a partnership enterprise, collided near, but a trifle south of, the southwest corner of said intersection.

This action was brought by appellee, the owner of the car driven by Crouse, for damages caused thereto by the collision. Although appellant, in argument, contends that the proximate cause of the collision was the negligence of the driver of plaintiff's car, and that the court committed error in failing and refusing to submit an instruction upon the last clear chance doctrine, we do not deem it necessary to make a further statement of the record. We have examined it with care, and unite in the opinion that appellant's motion for a directed verdict, upon the ground of contributory negligence, was properly overruled, and that the evidence did not justify the submission of an instruction upon the theory of the last clear chance.

[1] II. Appellee, upon the trial, offered the record of the municipal court of the city of Des Moines, showing a plea of guilty by Bernstein to a charge of reckless and imprudent driving of an automobile at the time and on the occasion of the collision. This record was received in evidence over the timely objection of appellee, who, in turn, offered to prove that he did not appear or enter a plea of guilty to the charge of reckless and imprudent driving, and that he did not authorize a plea of guilty to be entered against him. This testimony was excluded upon objection of appellee, and appellant was not permitted to make any denial or explanation of his alleged plea of guilty. The docket also showed that he paid a fine of $25. The court permitted him to testify that he neither paid, nor authorized any one to pay, a fine for him. The docket showing a plea of guilty was admissible in evidence upon the ground that such plea to a criminal charge is in the nature of an admission, but the rule is well established that the record in such case is conclusive only therein, and, in so far as it imports an admission on the part of the defendant, is open to denial or explanation when offered against him in a civil action for damages. Root v. Sturdivant, 70 Iowa, 55, 29 N. W. 802;Crawford v. Bergen, 91 Iowa, 675, 60 N. W. 205;Jones v. Cooper, 97 Iowa, 735, 65 N. W. 1000;Hauser v. Griffith, 102 Iowa, 215, 71 N. W. 223;Spain v. Oregon-Washington R. & Nav. Co., 78 Or. 355, 153 Pac. 470, Ann. Cas. 1917E, 1104;Risdon v. Yates, 145 Cal. 210, 78 Pac. 641; Wisnieski v. Vanek, 5 Neb. (Unof.) 512, 99 N. W. 258;Satham v. Muffle et al., 23 N. D. 63, 135 N. W. 797;Schreiner v. High Court, etc., 35 Ill. App. 576;Rudolph v. Landwerlen, 92 Ind. 34;Karlen v. Hadinger, 147 Wis. 78, 132 N. W. 591; Hendle v. Geiler, 50 Atl. (Del. Super.) 632; Albrecht v. State, 62 Miss. 516; Freeman on Judgments (4th Ed.) § 319; Black on Judgments (3d Ed.) p. 529.

It is true that a few courts hold that the judgment in...