Meyers v. Dillon , 39 Or. 581 ( 1901 )

Mr. Chiee Justice Bean

delivered the opinion.

This action was brought, under Section 3528, Hill’s Ann. Laws, against Charles Mellquist and John Dillon, to recover double the amount of $260, alleged to have been lost by plaintiff at a game of vingt-un, 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.

1. 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, § 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 Pac. 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.

2. 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 Greenleaf, Ev. (15 ed.) § 537; Doyle v. Gore, 15 Mont. 212 (38 Pac. 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 ; Freeman, Judgm. (4 ed.) § 319 ; Green v. Bedell, 48 N. H. 546.

Messrs. J. W. Knowles and Samuel White presented an argument for appellant. Mr. L. A. Esteb presented a brief for respondent.

3. It is insisted that the court erred in instructing the . jury that their verdict, if in plaintiff’s favor, should state only the amount actually lost, and in rendering judgment for double the amount so found. The statute gives a right to a person losing money at or on certain enumerated gambling games to recover double the amount actually lost, and a verdict of the jury showing the amount of the loss and defendant’s liability is in the nature of a special finding, and authorizes the court to render judgment accordingly : Loewenherg v. Rosenthal, 18 Or. 178 (22 Pac. 601); Humes v. Proctor, 151 N. Y. 520 (45 N. E. 948); Macey v. Carter, 76 Mo. App. 490.

There are several other assignments of error in the record, but it suffices to say that, after a careful examination thereof, we are of the opinion that they are without substantial merit.- The judgment is therefore affirmed. Affirmed .