¶1dissenting.
¶2In this case defendant was permitted to offer, over plaintiff’s objection, not only plaintiff’s allegations of similar injuries in the complaint in a previous case, but a copy of the entire previous, complaint filed by plaintiff against another defendant, so as to show not only the nature of the injury claimed by plaintiff in that case, but also the fact that plaintiff sought to recover $35,000 in that case in damages for such injuries. When, however, plaintiff sought to offer in evidence the fact that she actually received the sum of $2,000 on settlement of that case, defendant’s objection was sustained.
¶3In my view, while defendant was entitled to offer in evidence plaintiff’s allegations of similar injuries in the complaint in the previous case, he was not entitled to offer in evidence the amount prayed for as damages in that complaint. Although that fact may have had some probative value to show the serious nature of the injuries claimed by defendant in that complaint, any such probative value was more than outweighed, in my opinion, by the collateral issues thus injected into the case, as well as by the prejudice to plaintiff. See McCormick on Evidence (2d ed) 438-41. Kelty v. Fisher, 101 Or 110, 118, 199 P 188 (1921).
¶4If it be held that it was for the trial judge, in the exercise of his discretion, to resolve the balancing of those considerations, it is my view that the trial *543judge was then required to adroit in evidence plaintiff’s testimony that she received only $2,000 upon settlement of that previous complaint.
¶5Once the jury was informed by the defendant that plaintiff had filed a previous complaint praying for $35,000 in damages for the same injury, the jury was likely to draw the inference that as the result of having filed such a complaint, plaintiff probably received a substantial payment for such injuries.
¶6It is true that unaccepted offers of compromise between the same parties are not generally admissible, not only for lack of relevance, but as privileged communications for reasons of public policy to encourage settlements. Consummated settlements with third persons, however, are sometimes admissible, depending upon the purpose for which such evidence is offered. McCormick on Evidence (2d ed) 664, § 274.
¶7Because the question whether plaintiff had already received payment for the same injury was “opened up” to speculation by defendant’s offer of the entire previous complaint in evidence, including its prayer for $35,000, I am of the opinion that plaintiff was entitled to show the amount actually received by her as a result of that complaint. Otherwise, we would be condoning a practice under which one party is permitted by the trial judge to strike a questionable blow, over the objection of the other party, whose hands are then tied by the trial judge, at the request of the first party, when he attempts to defend himself.
¶8Because plaintiff was not permitted to offer that evidence I believe that she did not have a fair trial and would remand this case for a new trial.