Papke v. Haerle

• Decision Date: 09 February 1926
• Citation: 207 N.W. 261,189 Wis. 156
• Parties: PAPKE v. HAERLE.
• Court: Wisconsin Supreme Court

189 Wis. 156

207 N.W. 261

PAPKE

v.HAERLE.

Supreme Court of Wisconsin.

Feb. 9, 1926.

Appeal from Circuit Court, Waukesha County; C. M. Davison, Judge.

Action by Frank Papke against John T. Haerle. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.McGovern, Lyons, Curtis, Devos & Reiss, of Milwaukee, for appellant.

Winfred C. Zabel, of Milwaukee, for respondent.

OWEN, J.

Defendant's daughter, Edna, 19 years of age, August 3, 1922, drove defendant's coupé from his cottage to the village of Hartland, a distance of about 3 miles. On one of the public streets of the village of Hartland she struck plaintiff with the automobile, the front wheel of which ran over him, causing him personal injuries. This action was brought to recover for the resulting damages. By a special verdict the jury found the daughter, driver of the automobile, negligent, found the plaintiff free from negligence, and that at the time of the injury the daughter was acting as the agent of the defendant. Upon this verdict judgment was rendered in favor of the plaintiff, from which the defendant appeals.

[1] Appellant contends that the evidence is not sufficient to justify a finding of negligence on the part of the defendant's daughter, and that it shows negligence on the part of the plaintiff as a matter of law. We find it unnecessary to consider this contention, for the reason that the case is effectually disposed of on the ground that there is no evidence which shows that the daughter was acting as the agent of the father in driving the automobile at the time the injuries occurred. The so-called family doctrine as applied to the use of an automobile, adopted in some states, does not obtain here, and the father is not responsible for the negligent operation of his automobile by his minor child merely because of the relationship existing between them, but liability must be predicated on the principles of agency. Crossett v. Goelzer, 177 Wis. 455, 188 N. W. 627;Geffert v. Kayser, 179 Wis. 571, 192 N. W. 26. In order to hold the father liable in this case, it must appear that the daughter, Edna, was using the automobile in the prosecution of her father's business and acting as his agent. The only evidence offered on the part of the plaintiff to establish the fact that Edna was using the automobile as the agent of her father was the testimony of the witness Levinsky that he and the plaintiff, on Memorial Day, 1923, interviewed the defendant with reference to a settlement for the injuries sustained by plaintiff. It appears that the witness and the plaintiff called on the defendant for the purpose of procuring a settlement, but the conversation occurring between the witness and plaintiff on the one hand and the defendant on the other indicates that the defendant made no offer of compromise and had no notion whatever of making any settlement. The witness testified that in that conversation the defendant stated that at the time of the accident the daughter was in the prosecution of an errand upon which she had been sent by the defendant. It is argued by the appellant that this testimony was inadmissible because the statements were made in the course of negotiations for a settlement.

[2][3] It is well established that offers of compromise or settlement are inadmissible in evidence as against a party making them. It is stated by some courts that the reason for excluding such offers is that they are in the nature of privileged communications. Probably the true rule is that stated by Wigmore in his work on Evidence, § 1061, where he says:

“The true reason for excluding an offer of compromise is that it does not ordinarily proceed from and imply a belief that the adversary's claim is well founded, but rather a belief that the further prosecution of that claim, whether well founded or not, would in any event cause such annoyance as is preferably avoided by the payment of the sum offered; in short, the offer implies merely a desire for peace, not a concession of wrong done. By this theory, the offer is excluded because, as a matter of interpretation and inference, it does not signify an admission at all. There is no concession of claim to be found in it, expressly or by implication. It would follow, then, conversely, that, if a plain concession is in fact made, it is receivable, even though it forms part of an offer to compromise; and this much has long been well understood.”

Wigmore cites a number of cases to show that, while an offer of compromise is not admissible as evidence against the person making it, any statement of fact, made in the conversation or negotiations leading up to the offer, is admissible. It is apparent that admissions of independent facts are real admissions, while an offer to pay a certain sum of money in compromise is not an admission of liability, but is consistent with the theory that the person making the offer is willing to pay so much money to be rid of the litigation. This distinction is also pointed out in Greenleaf on Evidence (16th Ed.) § 192, and Jones on Evidence, § 291. Offers of compromise have been held inadmissible by this court in Johnson v. Wilson, 1 Pin. 65;State Bank of Wisconsin v. Dutton, 11 Wis. 371;Richards v. Noyes, 44 Wis. 609;Jewett v. Fink, 47 Wis. 446, 2 N. W. 1124;Taylor v. Tigerton Lumber Co. 134 Wis. 24, 114 N. W. 122;Tobin v. Nichols, 156 Wis. 235, 145 N. W. 659;John E. De Wolf Co. v. Harvey, 161 Wis. 535, 154 N. W. 988.

In Johnson v. Wilson, 1 Pin. 65, the court declared:

“There is no point better settled than that declarations and admissions, made by one party to another while mutually engaged in effecting a compromise of their difficulties, cannot be given in evidence.”

This broad language supports appellant's contention. However, the court cites no authority to support this broad statement, and it is quite apparent that the statement of the rule was inadvisedly framed. In none of the other cases cited has the rule been stated so broadly, and in none of them have admissions or declarations which were not offers of compromise been excluded; and, in Richards v. Noyes, 44 Wis. 609, the court quoted approvingly from section 192 of Greenleaf on Evidence, pointing the distinction between the admission of particular facts and the offer of a sum of money to buy peace. There is nothing in the decisions of this court committing us to the doctrine that admissions of independent facts occurring during negotiations for a settlement are inadmissible in evidence; and, as such a doctrine would be without support in...