Georgia Railway & Electric Co. v. Wallace & Co. , 122 Ga. 547 ( 1905 )

Lamar, J.

(After stating the foregoing facts.) It costs time, trouble, and money to defend even an unfounded claim. Parties have a right to purchase their peace. The fact that they have entered into negotiations to secure that end, and admissions or propositions made with the view to a compromise, are not admissible in evidence for or against either litigant, in the event there is a failure to adjust and a suit follows. For a much stronger reason, evidence of a settlement with a third person injured in the same casualty ought to be excluded. The court therefore properly held that, in a suit for the recovery of damages to a carriage and horses, it was incompetent to show that the defendant had settled with the driver for any claim that he might have for personal injury received in the same collision. If such evidence was inadmissible on the direct examination, it was likewise, on the redirect, inadmissible to allow the witness to testify that he had not signed “any paper in connection with the collision, except a receipt for $25, which was paid him by the defendant.” The foundation of the impeachment was the affidavit. The redirect examination should have been confined to an inquiry as to whether he signed it. The witness could have denied or explained his signature. But as the receipt itself could not have been offered against the defendant, it was doubly incompetent for the witness to state its contents, when the contents themselves were inadmissible because showing that a settlement had been made. Nor was this error cured because the defendant endeavored to meet the necessity thus improperly imposed. It offered the receipt to lessen the injurious consequences of the adverse decision by showing that it contained a statement that the company did not admit liability for the collision. It was an attempt, though necessarily an unavailing attempt, to remove from the minds of the jury the impression that the payment to the driver was a settlement of an admitted liability. Nor was the error in-the admission of the evidence of the witness cured by instructing them that the evidence as to the settlement could only be considered for the purposes of impeachment. The rule against allowing evidence of compromises is founded upon recognition of the fact that such testimony is inherently harmful, for the jury will draw conclusions therefrom in spite of anything said by the parties at the time of discussing the compromise, and in spite of anything which may be said by the judge in instructing them as to the weight to be given such evidence.

The charge as to the right to recover for the loss of hire during the period the horses were idle because of the injury stated a correct principle. But as given it was harmful to the defendant. It did not instruct the jury that they could not in any event allow more for injury and loss of service than the sound value of the animals. Atlanta Co. v. Hudson, 62 Ga. 683 (2); Telfair County v. Webb, 119 Ga. 916 (2). Excluding the price originally paid, but which the jury had a right to consider (Boker v. Richmond, 105 Ga. 225), and taking the evidence most favorably for the plaintiff, it appeared that their sound value was $300; tbat after the injury they were worth $150, and therefore only $150 was recoverable for loss of hire. Tet, under the charge, the jury could have allowed $150 for damages and $240 for loss of hire. This was an error of $90 against the defendant. The verdict was for $422.81, which was less than the minimum damage to carriage, harness, and horses, proved by the plaintiff under any theory of the case. From this it must be concluded that the jury found that the driver was guilty of contributory negligence. But there was no basis for the trial judge or this court to make a calculation by which to cure the verdict by writing off the $90 in excess recoverable under the charge as given. If because of contributory negligence the jury made a deduction in' other items, they may likewise have made a deduction of this item. Without passing upon the other grounds of the motion, the charge as to damages and the admission of evidence as to the settlement require the grant of a new trial; and the judgment is,

Reversed.

All the Justices concur.