Tobin v. Nichols

Winslow, O. J. In this case the following propositions are decided: 1. Under the statute making a special verdict a matter of right (sec. 2858, Stats. 1913), and the rule that “every material, issuable fact controverted on the evidence” should be covered by an appropriate question (Schliesleder v. Milwaukee E. R. & L. Co. 147 Wis. 668, 134 N. W. 144), it was error to refuse to submit a special verdict in the present case, because the evidence made it clear that the issues really raised by the pleadings and litigated on the trial were (1) whether there were two independent fires, for the second of which the defendants were not responsible; (2) if not, what was the total damage; (3) if so, what was the damage caused by the first fire. 2. Offers of settlement made before or after suit are not admissible in evidence against the party making them, because the settlement of controversies is favored in the law, and if the fact of an offer of settlement could be placed in evidence as an admission of liability there would be few who would venture to attempt a settlement. Taylor v. Tigerton L. Co. 134 Wis. 24, 114 N. W. 122. 3. These errors must be regarded as affecting the substantial rights of the appellants, and hence as entitling them to a new trial. By the Court. — Judgment reversed, and action remanded for a new trial.