Neal v. Thornton

• Decision Date: 29 January 1895
• Citation: 31 A. 296,67 Vt. 221
• Parties: NEAL v. THORNTON.
• Court: Vermont Supreme Court

31 A. 296

67 Vt. 221

NEAL

v. THORNTON.

Supreme Court of Vermont. Windsor.

Jan. 29, 1895.

Exceptions from Windsor county court; Thompson, Judge.

Trespass by Alfred Neal, by his father and next friend, Dan B. Neal, against Benjamin Thornton, for assault and battery. Plea, not guilty. Verdict and judgment for the defendant, and the plaintiff excepts. Reversed.

French & Southgate, for plaintiff.

William Batchelder, for defendant.

START, J. The plaintiff, in opening his case, improved his father as a witness, and his testimony tended to show that the defendant assaulted the plaintiff and broke his arm. On cross-examination, as bearing upon the credibility of the witness, the defendant was allowed to show, subject to the plaintiff's exception, that the witness offered to settle for the doctor's bill for setting and caring for the plaintiff's arm, if the defendant would settle then without any further ceremony.

It appeared that the father employed the doctor and paid him. This offer was not an admission of any fact relating to the extent of the plaintiff's injuries, about which the witness had testified differently, but an offer to compromise a claimed cause of action, provided the defendant would then pay the sum named without further ceremony. The offer being thus conditioned, it was error to allow the jury to consider it for the purpose of impeaching and discrediting the witness. Such offers are usually made with a view of obtaining friendly and amicable adjustment of differences, and for the purpose of avoiding prolonged and expensive litigation. Peace and friendship are of such worth that a man, for the sake of preserving such relations, will forego his strict legal right, and submit to an abatement from his just claim. The offer which a man makes, under such circumstances, does not represent his judgment of what he ought to receive at the end of litigation, but what he is willing to take and avoid it. The fact that a man has offered to compromise and settle a just claim for a sum less than that to which he is legally entitled, for the purpose of preserving friendly relations and avoiding litigation distasteful to him, does not tend to impeach him when he is called to testify respecting the same subject-matter, while asserting his claim according to his strict legal right, and is not admissible for that purpose. Harrington v. Lincoln, 4 Gray, 563; People v. Genung, 11 Wend. 20. The fact that the witness had offered to compromise his claimed...