Whitney v. Cleveland

Decision Date09 July 1907
Citation91 P. 176,13 Idaho 558
PartiesFRED E. WHITNEY, Respondent, v. W. C. CLEVELAND, Appellant
CourtIdaho Supreme Court

DAMAGES-HERDING AND GRAZING SHEEP-TWO-MILE LIMIT LAW-OWNERSHIP OF SHEEP-EVIDENCE-OFFER TO COMPROMISE-WHEN ADMITTED AS EVIDENCE.

1. The rule is well established that an offer to compromise is not admissible in evidence, but that if an independent admission of a fact such as the handwriting of a party or that a certain item of an account was correct, such independent admission may be introduced.

2. Held, that an offer to compromise was improperly admitted in evidence, and further held that the offer to compromise was not proper rebuttal. The question whether in the offer to compromise a collateral or independent fact has been admitted by one of the parties is a question for the court to determine, and not a question for the jury.

3. Impeaching questions should not be permitted unless a proper foundation is laid therefor.

4. Held, that the instructions properly define the term "preponderance of the evidence."

(Syllabus by the court.)

APPEAL from the District Court of Fourth Judicial District for Elmore County. Hon. Lyttleton Price, Judge.

Action to recover damages for the unlawful grazing and herding of sheep. Judgment for the plaintiff. Reversed.

Judgment reversed and a new trial granted, with costs in favor of the appellant.

Perky &amp Blaine and L. B. Green, for Appellant.

It is not even shown that the sheep were herded or permitted to graze in the sense contemplated by the statute, as interpreted by this court in Phipps v. Grover, 9 Idaho 415, 75 P. 64.

No evidence of an unsuccessful offer to compromise can be admitted over the objection of either party. (1 Rice on Evidence, 435; 1 Ency. of Ev. 596; Kroetch v. Empire Mill Co., 9 Idaho 277, 282, 74 P. 868; Sebree v. Smith, 2 Idaho 359, 362, 16 P. 915.)

The law only allows the introduction in evidence of offers to compromise, which are accompanied by some statement of fact which can be divorced from the offer itself; and courts are careful to draw the line. (Rose v. Rose, 112 Cal 341, 344, 44 P. 658; Smith v. Satterlee, 130 N.Y 677, 29 N.E. 225; Kierstead v. Brown, 23 Neb. 595, 37 N.W. 471, 478; Houdeck v. Ins. Co., 102 Iowa 303, 71 N.W. 354; Home Ins. Co. v. Warehouse Co., 93 U.S. 527, 23 L.Ed. 871; West v. Smith, 101 U.S. 263, 25 L.Ed. 813.)

It was error to deny appellant the opportunity to prove statements of respondent's witnesses as to relevant facts which were contradictory of, and inconsistent with, the testimony given at the trial. (State v. Crea, 10 Idaho 88, 96, 97, 76 P. 1013.)

W. C. Howie, for Respondent.

Appellant's own evidence shows that he did not then question the fact that it was his sheep; the only thing he questioned was the amount of damage. So under the conditions it was perfectly proper for us to ask the question, to show his admission of the fact as to whose sheep it was. (1 Greenleaf on Evidence, sec. 192; 1 Ency. of Ev. 596, and note; Hood v. Tyner, 3 Ind.App. 51, 28 N.E. 1033; Moore v. H. Gans & Sons Mfg. Co., 113 Mo. 98, 20 S.W. 977; Jeness v. Jones, 68 N.H. 475, 44 A. 607; Chicago B. & Q. Ry. Co. v. Roberts, 10 Colo. App. 87, 49 P. 428; 26 Colo. 329, 57 P. 1076.)

No proper foundation was laid for the impeaching questions objected to, as is required by section 6083 of our code, nor the general law of evidence. (7 Ency. of Ev., secs. 96, 106, 109, 111.)

SULLIVAN, J. Ailshie, C. J., concurs.

OPINION

SULLIVAN, J.

This action was commenced in the probate court of Elmore county to recover for damages alleged to have been sustained by reason of the defendant herding and grazing his sheep on the land of plaintiff and within two miles of his residence under what is known as the two-mile limit law. Judgment was rendered in favor of the plaintiff and an appeal was taken by the appellant to the district court of said county, where the cause was tried de novo. Upon the trial of the case in the district court the jury returned a verdict in favor of the respondent for $ 125 and costs of suit. A motion for a new trial was overruled and this appeal is from the judgment and the order overruling the motion for a new trial. The errors relied upon are the insufficiency of the evidence to justify the verdict and in the admission and rejection of certain testimony, and in the giving of a certain instruction. One of the main contentions is that the evidence does not show that the sheep mentioned in the complaint belonged to the appellant.

We have examined all of the evidence contained in the record, and it is shown that the sheep which it is alleged did the damage bore two brands; about five-sixths of them were branded V. T. and about one-sixth with a blotch or dot U. or a horseshoe dot brand. The latter brand is designated in the evidence as the horseshoe dot by some of the witnesses, and by others as the dot U. brand. It was admitted by the appellant in his testimony that his sheep bore those brands, but his evidence tended to show that his sheep were not on or near plaintiff's ranch, and for that reason could not have been the cause of the damage sustained by plaintiff. The plaintiff introduced no direct evidence as to the fact that appellant owned said sheep. He only showed that the brands on the sheep were the same brands used by appellant.

It appears from the record that the attorney for the respondent had some communication with the appellant in regard to the damage done by said sheep prior to the time this suit was brought, and that the appellant offered as a compromise to pay $ 25 in full settlement of said matter which offer was refused by respondent. On cross-examination of the appellant he was asked the following question: "Q. You offered him $ 25 for the damages suffered from your sheep, did you not?" Thereupon objection was interposed by counsel for appellant on the ground that that was not proper cross-examination, and incompetent for any purpose, as it was an offer to compromise. The court thereupon stated as follows: "It is not competent to show that there was any damage sustained, but it would be directly in rebuttal of matters called out on cross-examination. The tendency of your testimony is to show that he had no sheep there. It would be competent to rebut that if nothing else," and thereupon overruled the objection. The witness thereupon answered as follows: "I told him I would give him $ 25 to make him a present, but I did not consider my sheep had done him any damage." The witness on redirect examination testified that all he knew about the sheep having been there was what respondent's counsel had written him, that he had written him and threatened him with a suit. Witness further testified as follows: "I had not seen my men about it. My object was merely to save the trouble and expense of suit regardless of any merits of the claim, on the theory that it was cheaper to give him a little something than to fight him in court. I never at any time admitted that my sheep had damaged him at all." Whereupon the...

To continue reading

Request your trial
8 cases
  • State v. Sing
    • United States
    • Idaho Supreme Court
    • July 1, 1922
    ... ... St. 140, 102 P. 381; ... Tilden v. Hubbard, 25 Idaho 677, 138 P. 1133; ... Osborn v. Cary, 28 Idaho 89, 152 P. 473; Whitney ... v. Cleveland, 13 Idaho 558, 91 P. 176; People v ... Cleveland, 49 Cal. 578; People v. Armstrong, ... 114 Cal. 570, 46 P. 611; State v ... ...
  • State v. Ramirez
    • United States
    • Idaho Supreme Court
    • May 25, 1921
    ... ... 639, 133 Am. St. 140, 102 P. 381; Tilden v. Hubbard, ... 25 Idaho 677, 139 P. 1133; Osborn v. Cary, 28 Idaho ... 89, 152 P. 473; Whitney v. Cleveland, 13 Idaho 558, ... 91 P. 176; People v. Cleveland, 49 Cal. 578; ... People v. Armstrong, 114 Cal. 570, 46 P. 611; State ... v ... ...
  • Hatfield v. Max Rouse & Sons Northwest
    • United States
    • Idaho Supreme Court
    • January 9, 1980
    ...such as "for the purposes of argument only," or "without prejudice." Dictum in an early Idaho case is to this effect. Whitney v. Cleveland, 13 Idaho 558, 91 P. 176 (1907). The modern approach is to exclude All statements made in the course of settlement negotiations. This is the position ad......
  • Davidson v. Beco Corp.
    • United States
    • Idaho Court of Appeals
    • December 26, 1986
    ...the limitations upon using settlement offers in evidence. These limitations long have existed in Idaho law. See, e.g., Whitney v. Cleveland, 13 Idaho 558, 91 P. 176 (1907). They are intended to promote settlements, a public policy recently reiterated by our Supreme Court. See Quick v. Crane......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT