153 P. 470 | Or. | 1915
delivered the opinion of the court.
“So a judgment of conviction founded upon a plea of guilty may be received in a civil action as an admis*365 sion by the defendant of the facts confessed by his plea; but this is manifestly only a mode of proving such admission, and cannot be regarded as estopping the defendant from showing that notwithstanding such confession and conviction he was not guilty. ’ ’
To the same effect it is said in Black, Judgments (3 ed.), § 529:
“In the next place, a criminal sentence may be admissible in evidence as a species of admission, although, strictly, it is not proper to be received as res judicata. Thus, in a civil action for assault and battery, the defendant gave in evidence, in mitigation of damages, the record of his conviction in a criminal court on an indictment for the same assault and a receipt of the sheriff for the fine and costs of the prosecution. The judge charged that, the record of such conviction having been given in evidence by the defendant himself, it was no longer a matter of doubt that an assault had been committed, and the plaintiff would be entitled to some damag-es. And herein, it was held, there was no error. On the same principle, if the defendant in a criminal prosecution pleads ‘guilty,’ the record of such prosecution and plea may be used as evidence against him in a subsequent civil action involving the same subject matter as tending to prove the act or fact on which the indictment was framed. But since it is not the criminal judgment, but the plea, or rather the fact of his having so pleaded, that thus becomes evidence, it is not conclusive upon him. It is receivable as an admission or confession, but it may be controverted, and must be weighed by the jury. ’ ’
Respectable authority is found supporting a contrary doctrine, but it is believed that the better rule is that herein enunciated. Most of the authorities will be found cited in Erie R. Co. v. Reigherd, 166 Fed. 247 (92 C. C. A. 590), as reported in 20 L. R. A. (N. S.) 295 (16 Ann. Cas. 459).
“Now, doctor, assuming that on the 16th or 17th of October, 1912, Mr. Spain’s arm had healed over with the exception of a spot about the size of a dime which was scabbed over and occasionally some pus would come from that, but there was no indication of swelling or inflammation; and further assuming that on the twentieth day of October, or about three days later, this scab on the end of his arm was inflamed, swollen, and sore — what would that, in your opinion as a physician and surgeon, indicate?
“A. It would indicate it was reinfected from some source .or another; that might indicate a lack of drainage, the drainage might have got stopped.
“Q. One or the other, or both?
“A. Yes, sir.
*368 “Q. You say it might indicate it had been reinfected?
“Yes, sir.
“Q. In what way would it be possible to reinfect it?
“A. It might be externally from getting in contact with the dirt, or it might get reinfected through manipulation of any kind that would cause a scattering of the infection already present.
“Q. Assuming he had been handled with more or less violence to the extent of loosening and removing the bandage so either it might have become reinfected or added infection arise from that cause?
“A. That would depend upon whether the wound was actually hurt or not at the time from an internal standpoint, and, if the bandage was removed from' an external standpoint, it would probably be reinfected externally.
‘ ‘ Q. Explain to the jury how this would get infected by a removal of this bandage.
“A. That could be done simply by getting external dirt into the wound. Dirt is infectious that has not been sterilized.
“Q. What do-you mean by a scattering of the infection ?
- “A. If you have a pocket of pus, for instance, there is a granulated tissue will grow that will envelope the pus; if you get that injured so it breaks up that granulated tissue, then the infection will travel into new uninjured tissue.
“Q. What would bring that about?
“A. By rough usage of any kind.
“Q. Would it require very rough usage to do it?
“A. That depends on the stage of the granulation.”
In answer to questions propounded on cross-examination, witness stated that, if the wound was unhealed and discharging pus on the 17th of October, the same condition would probably continue until the 20th; that if the dressing applied was not surgically clean, that is, was not sterilized, the dressing itself might cause
For the error heretofore noted, the judgment is reversed and a new trial directed.
Reversed and Remanded.