Busch v. South Dakota Central Ry. Co. , 29 S.D. 44 ( 1912 )

McCOY, P. J.

In this case plaintiff brought suit against defendant to recover damages on account of the killing of 12 head of plaintiff’s cattle by defendant’s train. Verdict and judgment were in favor of plaintiff, and defendant appeals.

Plaintiff, on the witness stand, testified that the value of the cattle killed was $200, and on cross-examination -testified that the next day after the killing he sent a first notice in writing to the company of said loss, placing the amount thereof at $180, and asked that the same be paid; that he would have settled for that amount, rather than have a lawsuit; that he cut down the amount to said sum, in order to obtain such settlement. He also testified that he was acquainted with Mr. Cummings, the general superintendent. Thereupon the following questions were asked the witness: “Q. You and he [Mr. Cummings] agreed at the value of the cattle, didn’t you, and the amount you would settle for?” “Q. You did agree with Mr. Cummings, didn’t you, what the value of these cattle was, and that you would settle for $90, and then your counsel got hold of you, didn’t he? That is correct, isn’t it?” These questions were each objected to by plaintiff on the ground that the same were not proper cross-examination, and the objections were sustained, and defendant duly excepted, and now urges the ruling of the court as error. We are of the opinion that the court ruled correctly. A party has a right to buy his peace by making concessions, and the law favors the settlement of disputed claims out of court; and it is generally held, under such circumstances as are shown in this case, that offers -of compromise, made with a view to settling out of court, not accepted by the opposite party, are inadmissible in evidence. Wigmore, Ev. § 1061; Jones, Ev. 293; 16 Cyc. 946. The record is not sufficient to present any other question for review or consideration.

Finding no error in the record, the judgment of the circuit court is affirmed.