O.C.G.A. § 24-4-408 (2019)

Annotations

Cross references. Compromise offers and negotiations, Fed. R. Evid. 408.

Law reviews. For annual survey on evidence, see 65 Mercer L. Rev. 125 (2013).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION APPLICATION AND ILLUSTRATIONS General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3712, former Code 1868, § 3736, former Code 1873, § 3789, former Code 1882, § 3789, former Civil Code 1895, § 5194, former Civil Code 1910, § 5781, former Code 1933, § 38-408, and former O.C.G.A. § 24-3-37 are included in the annotations for this Code section. Former statute enlarged the common-law rule, which did not exclude the admission of distinct facts. McElrath v. Haley, 48 Ga. 641, 1873 Ga. LEXIS 139 (1873) (decided under former Code 1868, § 3736). Distinction between compromise and settlement. - There is a distinction between an offer or proposition to compromise a doubtful or disputed claim, and an offer to settle upon certain terms a claim that is unquestioned. An admission made in an offer of the latter character will be admissible when one made in an offer of the former character will not. See as bearing somewhat on the point. Hatcher v. Bowen, 74 Ga. 840, 1885 Ga. LEXIS 446 (1885) (decided under former Code 1882, § 3789); Cooper v. Jones, 79 Ga. 379, 4 S.E. 916, 1887 Ga. LEXIS 231 (1887) (decided under former Code 1882, § 3789); Akers v. Kirke, 91 Ga. 590, 18 S.E. 366, 1893 Ga. LEXIS 289 (1893) (decided under former Code 1882,

§ 3789); Teasley v. Bradley, 110 Ga. 497, 35 S.E. 782, 1900 Ga. LEXIS 567 (1900) (decided under former Civil Code 1895, § 5194); Austin v. Long, 5 Ga. App. 551, 63 S.E. 640, 1909 Ga. App. LEXIS 60 (1909) (decided under former Civil Code 1895, § 5194); Wilson v. Wilder, 23 Ga. App. 30, 97 S.E. 447, 1918 Ga. App. LEXIS 24 (1918) (decided under former Civil Code 1910, § 5781); Lewis v. Joyner, 29 Ga. App. 92, 113 S.E. 829, 1922 Ga. App. LEXIS 74 (1922); Broyles v. Haas, 48 Ga. App. 321, 172 S.E. 742, 1934 Ga. App. LEXIS 57 (1934) (decided under former Civil Code 1910, § 5781); Pacific Nat’l Fire Ins. Co. v. Beavers, 87 Ga. App. 294, 73 S.E.2d 765, 1952 Ga. App. LEXIS 671 (1952) (decided under former Code 1933, § 38-408). Admission made in an offer to settle will be admissible while one made in an offer to compromise will not be admissible. Charter Mtg. Co. v. Ahouse, 165 Ga. App. 497, 300 S.E.2d 328, 1983 Ga. App. LEXIS 1923 (1983) (decided under former O.C.G.A. § 24-3-37). Trial court erred in denying a homeowner the opportunity to cross-examine the chair of a homeowners’ association’s architectural control committee regarding independent facts that demonstrated the association’s violation of the restrictive covenants in the subdivision as those statements were not part of admissions towards settlement negotiations that

should have been excluded under former O.C.G.A. § 24-3-37; the homeowner was being sued for not having sought prior approval of the committee prior to commencing construction, and the homeowner’s attempt to show that the association had violated the covenants when the homeowner submitted the proper paperwork for the construction, after the lawsuit was filed, and the association did not respond in a timely manner was relevant to the issues being litigated. Bounds v. Coventry Green Homeowners’ Ass’n, 268 Ga. App. 69, 601 S.E.2d 440, 2004 Ga. App. LEXIS 846 (2004) (decided under former O.C.G.A. § 24-3-37). Benevolent gestures encouraged. - Evidence of activity constituting a voluntary offer of assistance made on the impulse of benevolence or sympathy should be encouraged and should not be considered as an admission of liability. Deese v. Carroll City County Hosp., 203 Ga. App. 148, 416 S.E.2d 127, 1992 Ga. App. LEXIS 379 (1992) (decided under former O.C.G.A. § 24-3-37). Placement of rejected plea offers on record. - In an action for trafficking in methamphetamine, the act of placing the rejected plea offers on the record during the pretrial proceedings did not violate O.C.G.A. § 24-4-408 or Ga. Unif. Super. Ct. R. 33.5. Gage v. State, 358 Ga. App. 855, 856 S.E.2d 440, 2021 Ga. App. LEXIS 142 (2021). Basis for rule. - Rule against allowing evidence of compromise was founded upon recognition of the fact that such testimony was inherently harmful for the jury would draw conclusions therefrom, in spite of anything said by the parties at the time of discussing the compromise, and in spite of anything which may be said by the judge in instructing the jury as to the weight to be given such evidence. Newton Bros. v. Shank, 240 Ga. 471, 241 S.E.2d 231, 1978 Ga. LEXIS 764 (1978) (decided under former Code 1933, § 38-408); Central Nat’l Ins. Co. v. Dixon, 188 Ga. App. 680, 373 S.E.2d 849, 1988 Ga. App. LEXIS 1155 (1988) (decided under former O.C.G.A. § 24-3-37). Former statute was created in order to encourage settlements by letting a party which made an admission or

proposition with a view toward compromise rest assured that the party’s goodfaith settlement attempt would not later be used against the party in court. Benn v. McBride, 140 Ga. App. 698, 231 S.E.2d 438, 1976 Ga. App. LEXIS 1604 (1976) (decided under former Code 1933, § 38408). Purpose of former O.C.G.A. § 24-3-37 was to encourage settlements and protect parties who freely engage in negotiations directed toward resolution of lawsuits. Computer Communications Specialists, Inc. v. Hall, 188 Ga. App. 545, 373 S.E.2d 630, 1988 Ga. App. LEXIS 1122 (1988) (decided under former O.C.G.A. § 24-337). Former statute was very broad and excluded the introduction in evidence of propositions with a view to compromise and also admissions made with a view to compromise. Atlantic Coast Line R.R. v. Wells, 78 Ga. App. 859, 52 S.E.2d 496, 1949 Ga. App. LEXIS 996 (1949) (decided under former Code 1933, § 38-408). Proscription of propositions made with view to compromise refers to civil, not criminal, cases. Reed v. State, 163 Ga. App. 364, 295 S.E.2d 108, 1982 Ga. App. LEXIS 3205 (1982) (decided under former Code 1933, § 38-408). Exclusion of extrinsic evidence. - When parol evidence regarding a refund and repair was contained in an offer of compromise, such evidence was properly excluded. Topeka Mach. Exch., Inc. v. Stoler Indus., Inc., 220 Ga. App. 799, 470 S.E.2d 250 (decided under former O.C.G.A. § 24-3-37). Defendant challenging witness’s testimony based on Fifth Amendment. - Defendant in a civil action lacks standing to challenge the admission of testimony given in a previous criminal action on the ground that such action violated the witness’s Fifth Amendment rights or the immunity agreement between the witness and the state. The privilege against self-incrimination is that of the person under examination as a witness and is intended for that person’s protection only. Kesler v. Veal, 165 Ga. App. 475, 300 S.E.2d 217, 1983 Ga. App. LEXIS 1915 (1983) (decided under former O.C.G.A. § 24-3-37).

Application and Illustrations Former statute applied to civil cases and not to criminal cases. Moore v. State, 230 Ga. 839, 199 S.E.2d 243, 1973 Ga. LEXIS 1074 (1973), superseded by statute as stated in Gage v. State, 358 Ga. App. 855, 856 S.E.2d 440, 2021 Ga. App. LEXIS 142 (2021) (decided under former Code 1933, § 38-408); Jones v. State, 137 Ga. App. 612, 224 S.E.2d 473, 1976 Ga. App. LEXIS 2549 (1976) (decided under former Code 1933, § 38-408); Williams v. State, 178 Ga. App. 216, 342 S.E.2d 703, 1986 Ga. App. LEXIS 1638 (1986), superseded by statute as stated in Gage v. State, 358 Ga. App. 855, 856 S.E.2d 440, 2021 Ga. App. LEXIS 142 (2021) (decided under former O.C.G.A. § 24-3-7). Former O.C.G.A. § 24-3-37 applied to preclude the introduction into evidence of offers of compromise, although the evidence of such offers was propounded by the offeror. Davidson v. American Fitness Ctrs., Inc., 171 Ga. App. 691, 320 S.E.2d 824, 1984 Ga. App. LEXIS 2319 (1984) (decided under former O.C.G.A. § 24-3-7). Question made to explore compromise offer excluded. - Exclusion of the defendant’s question, “What is it going to take to make you folks happy?,” was appropriate. The statement was an effort to explore an offer to compromise a claim still being disputed. Houston v. KinderCare Learning Ctrs., Inc., 208 Ga. App. 235, 430 S.E.2d 24, 1993 Ga. App. LEXIS 462 (1993), cert. denied, No. S93C1098, 1993 Ga. LEXIS 766 (Ga. July 1, 1993) (decided under former O.C.G.A. § 24-3-7). Separate judicial proceeding. - Unsigned memoranda of proposals made within the confines of probate court administration proceedings were properly admissible in a later action to recover property of an estate. Myers v. Myers, 195 Ga. App. 529, 394 S.E.2d 374, 1990 Ga. App. LEXIS 610 (1990) (decided under former O.C.G.A. § 24-3-7). Rebuttal of admitted testimony. - When there was sufficient offer of proof by appellant on the issue, the trial court erred by excluding settlement negotiation evidence, which was admissible for the limited but permissible purpose of rebutting appellee’s testimony about an uncon-

ditional offer. Holbrook Contracting, Inc. v. Tyner, 181 Ga. App. 838, 354 S.E.2d 22, 1987 Ga. App. LEXIS 1562 (1987) (decided under former O.C.G.A. § 24-3-7). When statement not made with view to compromise. - Former O.C.G.A. § 24-3-37 did not apply to a statement that the appellant owned decedent’s interest in land and had a deed to prove ownership because this admission was not offered with a view to a compromise or settlement proposition, and no evidence existed to show that the statement was made with a view to a compromise. Graves v. Graves, 252 Ga. 27, 310 S.E.2d 901, 1984 Ga. LEXIS 572 (1984) (decided under former O.C.G.A. § 24-3-7). Although civil engineer’s testimony may have been construable as referring to an offer to compromise a claim, the engineer’s brief reference to a discussion regarding reimbursement of defendanthomeowner for corrective measures against soil erosion produced by developer-plaintiff did not require grant of a mistrial. Ross v. Hagler, 209 Ga. App. 201, 433 S.E.2d 124, 1993 Ga. App. LEXIS 820 (1993) (decided under former O.C.G.A. § 24-3-7). Defendant’s unsolicited offer to settle for the entire amount claimed by plaintiff was an offer to settle and not a proposition to compromise and was admissible at trial. Charter Mtg. Co. v. Ahouse, 165 Ga. App. 497, 300 S.E.2d 328, 1983 Ga. App. LEXIS 1923 (1983) (decided under former O.C.G.A. § 24-3-7). Admission adduced at a criminal trial pursuant to a grant of immunity from prosecution was not an admission “obtained by constraint” within the meaning of former O.C.G.A. § 24-3-37. Kesler v. Veal, 165 Ga. App. 475, 300 S.E.2d 217, 1983 Ga. App. LEXIS 1915 (1983) (decided under former O.C.G.A. § 24-3-7). Guilty plea to a reduced criminal charge was proper evidence as an admission in a subsequent civil action, despite the fact that the admission was the result of a compromise in the criminal case. Kesler v. Veal, 165 Ga. App. 475, 300 S.E.2d 217, 1983 Ga. App. LEXIS 1915 (1983) (decided under former O.C.G.A. § 24-3-7). Admission when no effort made to compromise. - Admission of liability contained in an offer to settle, brought

about by a simple demand for settlement, was not inadmissible on the ground that such admission was “made with a view to a compromise,” when there was nothing whatever to indicate that there had been any effort to compromise, and when it cannot be inferred from the circumstances under which the offer was made that there had been such an effort. Williams v. Smith, 71 Ga. App. 632, 31 S.E.2d 873, 1944 Ga. App. LEXIS 180 (1944) (decided under former Code 1933, § 38-408); Campbell v. Mutual Serv. Corp., 152 Ga. App. 493, 263 S.E.2d 202, 1979 Ga. App. LEXIS 2974 (1979) (decided under former Code 1933, § 38-408). In a condemnation proceeding, the trial court did not err in denying the lessees’ motion in limine to exclude evidence of an alleged pre-condemnation offer of compromise contained in a letter because the letter, which was sent to an appraiser and not to the Georgia Department of Transportation, was not an inadmissible offer of compromise under former O.C.G.A. § 243-37; no condemnation proceeding was pending when the letter was sent, the terms of the letter sought to persuade against the condemnation of the property, or, alternatively, to ensure that the lessees would receive the full amount that the lessees believed would be the lessees’ just and adequate compensation if condemnation occurred, and the letter did not propose a compromise of that amount. CNL APF Partners, LP v. DOT, 307 Ga. App. 511, 705 S.E.2d 862, 2010 Ga. App. LEXIS 1152 (2010) (decided under former O.C.G.A. § 24-3-37). No specific terms of compromise suggested. - Even if a general proposition of settlement has been made by one party, the admissions of the opposite party may be admissible if no specific terms of compromise have been suggested, and the admissions of a party who may desire a settlement are not to be excluded when, so far as appears from the evidence, the opposite party did nothing to induce the statement, and did not contemplate a compromise or abatement of the party’s demand. Pacific Nat’l Fire Ins. Co. v. Beavers, 87 Ga. App. 294, 73 S.E.2d 765, 1952 Ga. App. LEXIS 671 (1952) (decided under former Code 1933, § 38-408).

Evidence of a settlement agreement is admissible when the parties have successfully reached a posture of agreement settling the issues between the parties. Building Assocs. v. Crider, 141 Ga. App. 825, 234 S.E.2d 666, 1977 Ga. App. LEXIS 2081 (1977) (decided under former Code 1933, § 38-408). Settlement negotiations were not admissible in evidence, and dd not constitute a “waiver” of either party’s claim or defense. Citadel Corp. v. Sun Chem. Corp., 212 Ga. App. 875, 443 S.E.2d 489, 1994 Ga. App. LEXIS 431 (1994) (decided under former O.C.G.A. § 24-3-37). General partners’ motion for a new trial was properly denied as evidence of the limited partners’ attempts to liquidate their interests in the partnership was properly excluded as evidence of settlement negotiations. Kellett v. Kumar, 281 Ga. App. 120, 635 S.E.2d 310, 2006 Ga. App. LEXIS 895 (2006) (decided under former O.C.G.A. § 24-3-37). Documents of offers and counteroffers in divorce proceedings. - In a divorce proceeding, the trial court did not err by excluding certain written documents exchanged between the parties that, according to the wife, showed the parties reached an agreement regarding the wife’s support because at no time prior to trial did the wife claim a financial settlement and, at most, those documents were evidence of the parties’ offers and counteroffers made in attempts to negotiate the issues raised in the divorce proceeding and were not admissible at trial. Frost v. Frost, 299 Ga. 278, 787 S.E.2d 693, 2016 Ga. LEXIS 430 (2016). Settlement offers admissible in divorce action. - In a divorce action, the settlement offers were admissible for the purpose of determining whether an exhusband’s actions constituted delay or abuse of process based on statutory language and the ex-husband waived that argument when the ex-husband agreed to address the settlement offers in the affidavits submitted to the trial court. Reid v. Reid, 348 Ga. App. 550, 823 S.E.2d 860, 2019 Ga. App. LEXIS 46 (2019), cert. denied, No. S19C0832, 2019 Ga. LEXIS 689 (Ga. Oct. 7, 2019). Since a telephone conversation transcript between plaintiff and defen-

Application and Illustrations (Cont’d) dant showed that defendant made an offer as an effort to compromise a claim which was still being disputed, the trial court did not err in excluding this evidence. Stover v. Candle Corp. of Am., 238 Ga. App. 657, 520 S.E.2d 7 (decided under former O.C.G.A. § 24-3-37). Application to pleadings. - Offer to compromise a disputed claim was no more allowable in pleadings than in evidence. Malcolm v. Dobbs, 127 Ga. 487, 56 S.E. 622, 1907 Ga. LEXIS 412 (1907) (decided under former Civil Code 1895, § 5194). Independent statements of fact. - Admissions which were to be rejected because “made with a view to a compromise,” within the terms of the former statute, were those admissions which were made as a concession to bring about a compromise or settlement; but independent statements of fact by a party, even though made while the parties were trying to settle, are not necessarily inadmissible. Scales v. Shackleford, 61 Ga. 170 (1879) (decided under former Code 1873, § 3789); Austin v. Long, 5 Ga. App. 551, 63 S.E. 640, 1909 Ga. App. LEXIS 60 (1909) (decided under former Civil Code 1895, § 5194). While offers of compromise, with the view to settle or prevent litigation, were inadmissible, yet an independent acknowledgement of a fact may be received, although made pending a treaty for the amicable adjustment of a controversy. Blakely Hardwood Lumber Co. v. Reynolds Bros. Lumber Co., 173 Ga. 602, 160 S.E. 775, 1931 Ga. LEXIS 362 (1931) (decided under former Civil Code 1910, § 5781). Evidence material to other issues. - Terms of a proposition to compromise made to a party, and the party’s reply thereto, were admissible in evidence against the party when the reply was material on certain issues. Lucas v. Parsons, 27 Ga. 593, 1859 Ga. LEXIS 126 (1859) (decided under former law). Conversation between an attorney for the beneficiary and a proper official of the company is admissible for the purpose of illustrating, if it does, good or bad faith of

the company in refusing to pay the amount claimed when the evidence negatives an effort to compromise. Progressive Life Ins. Co. v. Smith, 71 Ga. App. 157, 30 S.E.2d 411, 1944 Ga. App. LEXIS 307 (1944) (decided under former Code 1933, § 38-408). In a suit alleging fraud and other claims, the trial court erred by granting the motion to dismiss for lack of personal jurisdiction of two property companies for not being served with the summons and complaint because the trial court erred in rejecting the plaintiff’s evidence of a settlement proposal between the plaintiff and the two property companies since the settlement proposal was not prohibited by former O.C.G.A. § 24-3-37 as the proposal was being offered to show an agency relationship between the two property companies and a defending business person. Cox v. Mayan Lagoon Estates Ltd., 319 Ga. App. 101, 734 S.E.2d 883, 2012 Ga. App. LEXIS 1032 (2012) (decided under former O.C.G.A. § 24-3-37). Evidence of value of property as per compromise. - When there was no testimony from which an inference would arise that the offer of the defendant insurance company to pay $1000.00 as the cash value of a barn destroyed by fire was offered in a spirit of compromise, liability to pay the amount of loss being undisputed, it was not error to allow such testimony as tending to show the value placed upon the property by the defendant, since one of the major issues of the case was whether or not the amount of the award was so grossly inadequate as to constitute a badge of fraud. Pacific Nat’l Fire Ins. Co. v. Beavers, 87 Ga. App. 294, 73 S.E.2d 765, 1952 Ga. App. LEXIS 671 (1952) (decided under former Code 1933, § 38-408). While evidence as to settlement negotiations ordinarily was inadmissible at a trial to determine the issue of liability, after a divorce and alimony case had been settled by agreement (except as to attorney fees), the effort needed by counsel to reach such settlement was a matter which could be considered in determining the amount of attorney fees to be awarded. Fenters v. Fenters, 238 Ga. 131, 231 S.E.2d 741, 1977 Ga. LEXIS 923 (1977)

(decided under former Code 1933, § 38408). Evidence material to claim for attorney’s fees. - In a breach of contract action with regard to the installation of a landscape irrigation system, the trial court did not err by allowing the irrigation company to rely upon two pre-litigation letters from the customer during the customer’s cross-examination as the question was not intended to solicit evidence to prove the validity of the irrigation company’s claim or the amount at issue. Rather, the letters were offered to support the company’s claim for attorney fees. Christie v. Rainmaster Irrigation, Inc., 299 Ga. App. 383, 682 S.E.2d 687, 2009 Ga. App. LEXIS 817 (2009), cert. denied, No. S09C2074, 2009 Ga. LEXIS 708 (Ga. Nov. 2, 2009) (decided under former O.C.G.A. § 24-3-37). Introduction into evidence of an agreement to delay trial or ancillary proceedings was not prohibited because neither the agreement nor any testimony showed that the agreement was executed with a view to compromise. Kaiser v. Simmons, 52 Ga. App. 355, 183 S.E. 343, 1936 Ga. App. LEXIS 627 (1936) (decided under former Code 1933, § 38-408). Former statute did not apply to a defendant’s statements to the plaintiff to the effect that the defendant had damaged the plaintiff’s property and that the defendant would pay the full amount of damage in a few days and the remainder after finding what the damage would be. Wilson v. Wilder, 23 Ga. App. 30, 97 S.E. 447, 1918 Ga. App. LEXIS 24 (1918) (decided under former Civil Code 1910, § 5781). When an offer was one to pay the hospital bill rather than an offer to settle or compromise the defendant’s liability or the prosecutor’s right to proceed with a bastardy prosecution, the evidence was admissible and did not come within the proscription of the former statute. Fowler v. State, 111 Ga. App. 856, 143 S.E.2d 553, 1965 Ga. App. LEXIS 1119 (1965) (decided under former Code 1933, § 38-408). Demands for settlement. - There was no error in allowing complainant’s attorney to show that demands were made on the defendant for a settlement of the matters in controversy, and the refusal of

the latter to comply with such demand. This differed from admitting in evidence negotiations for a compromise. Mayor of Columbus v. Howard, 6 Ga. 213, 1849 Ga. LEXIS 28 (1849) (decided under former law); Sasser v. Sasser, 73 Ga. 275, 1884 Ga. LEXIS 116 (1884) (decided under former Code 1882, § 3789). When the same substantial facts affect equally the claims of three clients, that the attorney has settled with one was evidence for the others on an action brought by the clients and was not excluded. Howland v. Barlett, 86 Ga. 669, 12 S.E. 1068, 1891 Ga. LEXIS 42 (1891) (decided under former Code 1882, § 3789). No offer to compromise found. - In action on contract for sale of land, when vendee agrees to deliver truck to vendor as part of consideration, statement of plaintiff vendor that plaintiff had offered to leave settlement of dispute as to condition the truck was to be in “to disinterested men,” after testifying that defendant vendee would do nothing toward fixing the truck, did not show such an offer or proposition made with a view to compromise as to come within the prohibition of the former statute. Walker v. Smith, 87 Ga. App. 517, 74 S.E.2d 374, 1953 Ga. App. LEXIS 784 (1953) (decided under former Code 1933, § 38-408). Admission is not admissible in evidence as an admission of guilt if the admission was made with a view to compromise or to effect a postponement of the case and was, therefore, not made freely and voluntarily by the defendant. Jester v. State, 133 Ga. App. 652, 211 S.E.2d 909, 1975 Ga. App. LEXIS 2231 (1975) (decided under former Code 1933, § 38-408). Evidence of a tender of money designed to prevent the rebuilding of a dam alleged to be a nuisance related to a proposition with a view to compromise and was not admissible. Mayor of Montezuma v. Minor, 73 Ga. 484, 1884 Ga. LEXIS 154 (1884) (decided under former Code 1882, § 3789). Evidence of a settlement with a third person injured in the same casualty ought to be excluded. Firemen’s Ins. Co. v. Larsen, 52 Ga. App. 140, 182 S.E. 677, 1935 Ga. App. LEXIS 77 (1935) (decided under former Code 1933, § 38-408).

Application and Illustrations (Cont’d) Conservator’s argument that the probate court improperly considered an offer of compromise and settlement by the conservator’s surety for $25,000 to settle the claims of the ward’s estate against the conservator was rejected. The probate court was aware of the offer but nothing in the record indicated that the court assigned any probative value to the fact that the administrator and the surety had agreed to settle the estate’s claim against the conservator. In re Hudson, 300 Ga. App. 340, 685 S.E.2d 323, 2009 Ga. App. LEXIS 1124 (2009) (decided under former O.C.G.A. § 24-3-37). Statements by attorney. - When an attorney for the plaintiff met with a member of the plaintiff’s firm and the defendant for the purpose of discussing an account in issue between the parties, and made statements including that the attorney hoped they would be able to settle it without any resort to the courts, admissions by the defendant which were induced by such suggestions were inadmissible as evidence in behalf of the plaintiff in a subsequent suit upon the account. Hill Bros. v. Render, 33 Ga. App. 13, 125 S.E. 79, 1924 Ga. App. LEXIS 677 (1924) (decided under former Civil Code 1910 § 5781). Letters. - Letter written by the attorney of record for plaintiff to attorney of record for defendant, containing admissions as to client’s indebtedness to defendant, and offering a compromise settlement pending litigation, was not admissible in evidence. Georgia Chem. Works v. Malcolm, 186 Ga. 275, 197 S.E. 763, 1938 Ga. LEXIS 593 (1938) (decided under former Code 1933, § 38-408). Letter written with a view toward settlement, and cross-examination of a witness in regard to that letter are properly excluded as not being proper evidence. Brooks v. Fincher, 150 Ga. App. 201, 257 S.E.2d 326, 1979 Ga. App. LEXIS 2118 (1979) (decided under former Code 1933, § 38-408). In dispossessory proceeding wherein the plaintiff alleged that the defendant was the plaintiff’s tenant and was holding

over, a letter written to the plaintiff by the defense attorney with a view toward settlement and compromise between the plaintiff and the bank being represented by the defense attorney following the defendant’s bankruptcy was properly refused admission into evidence. Hogan v. Tiger Auto Parts, Inc., 163 Ga. App. 448, 294 S.E.2d 655, 1982 Ga. App. LEXIS 2524 (1982) (decided under former O.C.G.A. § 24-3-7). Plaintiff’s letter which did not make a demand for an exact sum but instead set out what plaintiff believed was owed to plaintiff and invited the defendant to respond and to set forth defendant’s contentions and defendant’s letter which set forth a figure defendant was willing to pay which amounted to a difference of less than $400 than the amount plaintiff used in plaintiff’s letter constituted evidence of offers of compromise on behalf of each of the parties and therefore was inadmissible as evidence. Allen v. Brackett, 165 Ga. App. 415, 301 S.E.2d 486, 1983 Ga. App. LEXIS 1892 (1983) (decided under former O.C.G.A. § 24-3-7). Correspondence from plaintiff’s former attorney, written within the context of good faith negotiations, was properly excluded. McDevitt & Street Co. v. K-C Air Conditioning Serv., Inc., 203 Ga. App. 640, 418 S.E.2d 87, 1992 Ga. App. LEXIS 589 (1992), cert. denied, No. S92C0888, 1992 Ga. LEXIS 486 (Ga. June 11, 1992) (decided under former O.C.G.A. § 24-3-7). In the slip and fall case, the owner should have been barred under former O.C.G.A. § 24-3-37 from admitting into evidence certain portions of a letter, allegedly conflicting with the occupant’s position at trial, sent by the occupant to the owner setting out the reasons for the fall and seeking to enter settlement negotiations; the letter’s statement as to how the occupant fell was made with a view toward compromise of the claim, and the letter was an offer to compromise a doubtful or disputed claim. Nevitt v. CMD Realty Inv. Fund IV, L.P., 282 Ga. App. 533, 639 S.E.2d 336, 2006 Ga. App. LEXIS 1352 (2006), cert. denied, No. S07C0501, 2007 Ga. LEXIS 290 (Ga. Mar. 26, 2007) (decided under former O.C.G.A. § 24-3-7). Neither former O.C.G.A. § 24-3-37 nor former O.C.G.A. § 24-3-37.1 (see now

O.C.G.A. § 24-4-416) prevented admitting a letter from the defendant medical device manufacturer because there was evidence plaintiff patient’s surgeon requested that the manufacturer pay for third surgery to replace the device, and the letter in response confirmed the terms; further, there was evidence the offer was made to maintain the surgeon’s goodwill due to the number of devices the surgeon implanted in patients on a yearly basis. Trickett v. Advanced Neuromodulation Sys., 542 F. Supp. 2d 1338, 2008 U.S. Dist. LEXIS 12921 (S.D. Ga. 2008) (decided under former O.C.G.A. § 24-3-7). Insurance claims. - In an action by the assignee of a claim under a fire insurance policy, evidence as to whether other companies, having policies covering the same property, had paid claims under those policies, was inadmissible. Firemen’s Ins. Co. v. Larsen, 52 Ga. App. 140, 182 S.E. 677, 1935 Ga. App. LEXIS 77 (1935) (decided under former Code 1933, § 38-408). Evidence that the plaintiff, in attempting to discuss plaintiff’s claims arising out of an automobile collision, could not get a response from the defendant, plaintiff’s insurer, did not show “negotiations and offers of compromise or settlement,” which were not proper evidence under former O.C.G.A. § 24-3-37, but was properly admitted under O.C.G.A. § 13-6-11 to show that the defendant acted in bad faith, or was stubbornly litigious, or put the plaintiff to unnecessary trouble or expense. U-Haul Co. v. Ford, 171 Ga. App. 744, 320 S.E.2d 868, 1984 Ga. App. LEXIS 2329 (1984) (decided under former O.C.G.A. § 24-3-37). In action for abuse of process, the trial court properly allowed the plaintiff to testify as to the offers of settlement made by the defendant’s attorney immediately prior to trial. The settlement offers were not made during the course of the litigation in which they were offered in evidence, but in the context of settling the original suit by the defendant. Ostroff v. Coyner, 187 Ga. App. 109, 369 S.E.2d 298, 1988 Ga. App. LEXIS 616 (1988) (decided under former O.C.G.A. § 24-3-37). Conditional offer to pay half of claim. - When a person held a claim against another in a certain amount, a

proposition by the latter to pay one-half of the claim provided another person paid the other half, was a proposal of compromise, and inadmissible. This was true even assuming that the person making the proposal and such other person were partners. English v. Moore, 28 Ga. App. 265, 110 S.E. 737, 1922 Ga. App. LEXIS 439 (1922) (decided under former Civil Code 1910, § 5781). Offer to pay less than contract sum. - On an issue of whether the contract was procured by the fraudulent representation of the plaintiff of a material fact, the admission of evidence that the defendant offered to pay a less sum in compromise of any liability under the contract is harmful error. Dance v. Mize, 134 Ga. 646, 68 S.E. 434, 1910 Ga. LEXIS 302 (1910) (decided under former Civil Code 1910, § 5781). Former statute was applied to reject admission made with view of compromise in the following cases. - See Duncan v. Bailey, 162 Ga. 457, 134 S.E. 87, 1926 Ga. LEXIS 216 (1926) (decided under former Civil Code 1910, § 5781); Slade v. Raines, 165 Ga. 89, 139 S.E. 805, 1927 Ga. LEXIS 309 (1927) (decided under former Civil Code 1910, § 5781). Erroneous admission. - Trial court erred in admitting evidence of an agreement between the prosecutor and the defendant in a bastardy case for the payment by the defendant of a sum of money in return for an agreement that the case should be dead docketed since such evidence could have had only the purpose of showing an admission of guilt by the accused and as such it was inadmissible as not having been freely and voluntarily made. Simmons v. State, 98 Ga. App. 159, 105 S.E.2d 356, 1958 Ga. App. LEXIS 532 (1958) (decided under former Code 1933, § 38-408). When trial court informed the jury that testimony leading up to an offer of compromise was being excluded, if the trial court’s usage of the word “compromise” was in error, such error was rendered harmless by the trial court clearly stating to the jury that offers in compromise were inadmissible, that the court was sustaining the objection to the

Application and Illustrations (Cont’d) extent that it might have any bearing on an offer in compromise, or any element of it, that the court was offering no opinion whatever of any kind, and that if anything

had been said about an offer in compromise to disregard it as it was not admissible. Southeastern Metal Prods., Inc. v. De Vaughn, 99 Ga. App. 569, 109 S.E.2d 305, 1959 Ga. App. LEXIS 905 (1959) (decided under former Code 1933, § 34408).

RESEARCH REFERENCES C.J.S. 31A C.J.S., Evidence, §§ 380, 387 et seq. ALR. Admissibility of evidence of unperformed compromise agreement, 26 A.L.R.2d 858. Admissibility of admissions made in connection with offers or discussions of compromise, 15 A.L.R.3d 13. Admissibility of confession by one accused of felonious homicide, as affected by

its inducement through compelling, or threatening to compel, accused to view victim’s corpse, 27 A.L.R.3d 1185. Admissibility, in civil action, of confession or admission which could not be used against party in criminal prosecution because obtained by improper police methods, 43 A.L.R.3d 1375. Admissibility of defense communications made in connection with plea bargaining, 59 A.L.R.3d 441.