Meyers v. Dillon

• Decision Date: 05 August 1901
• Citation: 65 P. 867,39 Or. 581
• Parties: MEYERS v. DILLON et al.
• Court: Oregon Supreme Court

65 P. 867

39 Or. 581

MEYERS v. DILLON et al.

Supreme Court of Oregon

August 5, 1901

Appeal from circuit court, Union county; Robert Eakin, Judge.

Action by John Meyers against John Dillon and Charles Mellquist. From a judgment in favor of plaintiff as against the latter defendant, he appeals. Affirmed.

This action was brought, under section 3528, Hill's Ann.Laws Or., against Charles Mellquist and John Dillon, to recover double the amount of $260, alleged to have been lost by plaintiff at a game of vingtun, or twenty-one, carried on at the time by the defendants as proprietors. The jury found "for the plaintiff and against the defendant John Dillon in the sum of $200, as the actual amount lost." From a judgment for $400 rendered on such verdict, Dillon appeals.

J.W Knowles and Samuel White, for appellant.

Esteb & Ashwill, for respondent.

BEAN, C.J.

The plaintiff was permitted to give evidence that Dillon was commonly reputed to be the proprietor of the gambling game at which plaintiff lost his money, and that a short time prior thereto he had been convicted in the recorder's court upon his plea of guilty, of so conducting the game. Defendant insists that this evidence was improperly admitted. It is a disputable presumption that "a person is the owner of property from exercising acts of ownership over it or from common reputation of his ownership." Hill's Ann.Laws Or. § 776, subd. 12. And it is believed that the evidence of common reputation was competent under this provision. By the section quoted, common reputation is placed on an equal footing with possession, as furnishing a presumption of ownership. Wilson v. Maddock, 5 Or. 480; Bartel v. Lope, 6 Or. 321; Raymond v. Flavel, 27 Or 219, 40 P. 158. And it is clear that proof of possession and control of a gambling game would be competent, as tending to prove proprietorship or ownership. A judgment of conviction in a criminal action, after trial, is not admissible in evidence in a civil action to establish the facts upon which it was rendered. 1 Greenl.Ev. (15th Ed.) § 537; Doyle v. Gore, 15 Mont. 212, 38 P. 939. But where the judgment is founded upon a plea of guilty the record is competent as evidence of an admission by the defendant of a disputed fact in the civil action, although not conclusive. 2 Black, Judgm. § 529; Freem.Judgm. (4th Ed.) § 319; Green v. Bedell, 48 N.H. 546.

It is insisted that the court erred in instructing the jury that their verdict, if in p...