
    Slingerland v. Norton.
    
      (Supreme Court, General Term, Fifth Department.
    
    January 23,1891.)
    Evidence—Admissions—Offer to Compromise.
    ’ In an action for damages caused by a fire alleged to have been negligently allowed to spread from defendant’s premises, evidence of the compromise of a claim of another"person for damages caused by the same fire will be excluded under the rule that negotiations or propositions looking to the settlement of a controversy without action will not be received in evidence as admissions of liability.
    Appeal from Ontario county court.
    Action by Henry Slingerland against William H. Norton. From a judgment of the county court affirming a judgment of a justice’s court defendant appeals.
    Argued before Dwight, P. J., and Macomber and Corlett, JJ.
    C. J. Bissell, for appellant. W. W. Clark, for respondent.
   Dwight, P. J.

The action was for the alleged negligent burning of the plaintiff's timber by fire allowed to escape from the defendant’s fallow. The defendant controverted the allegation of negligence in the setting and management of the fire on his own land, and sought to avoid liability, on the ground that the negligence, if any, was not that of himself, his agents or servants, but of a third person who had taken the contract to clear bis land, fit for the harrow, at an agreed price per acre, and that the means and time of accomplishing that result were not in the defendant’s control. The justice who tried the case, without a jury, gives the reasons for his judgment in his return, from which it appears that he decided the question of fact last above suggested against the defendant’s contention, and found that the person who did the work and set the fire was not an independent contractor, but the servant of the defendant, and that the latter was responsible for his negligence. The evidence bearing upon this question was conflicting, and unfortunately it embraced two items of testimony in behalf of the plaintiff, objected to by the defendant, which were improperly admitted. The first was in violation of the familiar rule that negotiations or propositions looking to the settlement of a controversy without action cannot be given in evidence as admissions of liability. 1 Greenl. Ev. § 192; Steph. Dig. Ev. (Chase’s Ed.) 52, note, and the cases cited.

The rule is well founded in reason. The law is willing to encourage the compromise and settlement of controversies without litigation, and holds communications looking to that end as privileged in their character, and not to be used to the prejudice of the party making them. It is true the privilege does not extend tb an admission of a disputed fact even though made in the course of such negotiations; but this does not detract from the force of the rule. The principle is that an offer or consent or expression of willingness to settle is not to be taken as an admission of liability, and is, therefore, not evidence of the fact. The testimony objected to was within the rule. There was in it no admission of any fact in controversy, but only the expression of a desire that the matter might be settled without paying money to the lawyers. The same rule should, a fortiori, have excluded the testimony objected to of the fact of a settlement without litigation of the claim of another neighbor for damage done by the same fire. What motives or considerations may have influenced the defendant to make that settlement does not appear. The fact that he did settle with a third person was not to be taken- as an admission of his liability, for the same reason that his proposition to settle with the plaintiff was not to have that effect. The reasons for his judgment given by the justice in his return are pertinent and forcible, and we should probably have no hesitation to affirm that judgment had the conclusion of fact upon which it was based been reached upon evidence, all of which was relevant and admissible on the issue involved. For the error indicated the judgment of the county court and of the justice must be reversed, with costs. All concur.  