I dissent.
C.C. Phillips owned farm land in Adams county adjacent to the right of way of the defendant railway company. Hay and grain, of the asserted value of $2,152.22, on that farm were destroyed in the early afternoon of August 11, 1928, by a fire which, it is alleged, originated on the defendant's right of way and was communicated, by the negligence of the defendant, to the lands of Phillips. In satisfaction of a policy of insurance theretofore issued by plaintiff insurance company to Phillips, the insurer paid $1,543.13 to Phillips, who assigned to the plaintiff his claim for damages against those responsible for the fire. After the receipt of the insurance money and prior to the *Page 628 commencement of this action, Phillips made a claim for $940.97 against the defendant railway company. The negotiations of Phillips and the railway company culminated in a compromise agreement under which Phillips received six hundred dollars from the railway company in full settlement of his claim.
On the theory that the fire was caused by the defendant's negligence (the only issue was whether the fire was caused by the negligence of the defendant), the plaintiff insurance company instituted this action to compel the defendant to reimburse the plaintiff for the amount paid to Phillips, by plaintiff, on the insurance policy. The trial of the cause to a jury (motion, at close of plaintiff's case, for dismissal of the action was denied) resulted in a verdict in favor of the plaintiff. From judgment entered on the verdict, motions for judgment notwithstanding the verdict and for a new trial having been overruled, defendant appealed.
Counsel for appellant contended in the trial court and insist on appeal that, unless the evidence of the settlement made by appellant with Phillips (owner of the property) be considered as an admission of liability, there was no showing that appellant was responsible for the origin of the fire; that the testimony relating to appellant's offer of compromise was inadmissible; and that the trial court erred in submitting to the jury the question whether the appellant's settlement with Phillips was or was not made on the faith of a compromise. The trial court was of the view that, unless the jury found that appellant's settlement with Phillips was an admission of liability, there was no basis for a recovery by the respondent. On that theory, the cause was submitted to the jury. The court said: *Page 629
"I admit, gentlemen, that it is to me a very close question. Frankly I am of the opinion that there must be some showing of a passing train. But I think I will let this case go to the jury on this theory: I am going to leave it to the jury as a question of fact to determine whether or not this was a compromise or an admission of liability and submit to them a special interrogatory. If they find that it was a compromise, then, of course, they could not consider that evidence as an admission of liability of negligence on the part of the company. Then I think that there should be no ground on which recovery could rest, and I undoubtedly would grant a motion for judgment notwithstanding the verdict. That is the way I feel about it now, but if the jury should say that this settlement was not a compromise but an admission of negligence, then I think I would permit a verdict to stand and let the supreme court settle it."
Appellant's offer of compromise and settlement was not admissible in evidence. A few days after the fire, the general manager of Phillips' lessor advised the appellant's claim agent, by letter, that one of appellant's "trains started a fire" which burned over Phillips' land and destroyed grain, etc., of the value of $940.97 and that "we are making a claim to you for the following loss." Then followed a list of items lost, statement of urgency of the matter and request for prompt attention by appellant. Shortly thereafter, the appellant's claim agent, in response to that letter, called in person at the writer's office in Spokane. The general manager of Phillips' lessor testified that he did not recall that the claim agent made "any claim that the railroad had not started the fire or was not liable for it;" that there was some dickering as to the amounts the appellant should pay for the pasture, feed, posts and sacks; that "the only disputes were about the amounts per item, per acre, or for posts or for *Page 630 anything else." The claim agent agreed to settle for $557.85, but finally acceded to and paid the demand of Phillips' lessor for six hundred dollars. Appellant's agent did not at any time, in writing or orally, admit or deny the liability of the appellant. That the appellant did not deny liability, is not determinative of the question whether the offer to compromise the claim was admissible in evidence. That appellant offered to pay six hundred dollars was not an admission of liability to that extent.
Did appellant expressly or impliedly admit any fact upon which the liability was based? The record before us answers that query in the negative, and brings this case within the rule enunciated in Moore v. Stetson Machine Works, 110 Wash. 649, 188 P. 769, that an offer to settle or compromise a claim, even if not made without prejudice, is admissible in a subsequent action on the claim only if the party making the offer thereby admitted a fact which affected his liability. See, also, Eckhardt v. Harder,160 Wash. 207, 294 P. 981.
Poole's Seed Implement Co. v. Rudene, 117 Wash. 150,200 P. 1104, is not in point. In that case, the offer of compromise was composed of letters, which are not quoted in the opinion, exchanged between the respondent and appellant. In that correspondence, it clearly appeared that impliedly the appellant recognized his liability.
There was no evidence, in the absence of the offer of compromise, upon which to submit to the jury the question whether the appellant's negligence caused the fire. The farm of Phillips was about one and one-half miles from appellant's railroad. Between the farm and the railroad right of way is a steep hill. There were no eyewitnesses to the fire; that is, no one saw *Page 631 the fire start. No witness explained how the fire started.
At the time of the fire, a high wind was blowing from the south to the southwest (or from the railroad right of way towards Phillips' farm). Smoke was first noticed on the day of the fire, in the direction of the railroad at 2:00 p.m. or a little before. By 2:15 p.m. the place was blazing. That is, under the evidence, the fire originated on the appellant's right of way at 2:00 p.m., or prior to that time, and by 2:15 p.m. the farm property was burning. All of appellant's engines on that line of road on that date burned oil, but engines of another railroad company, which used the same tracks, burned coal. No train of appellant passed the supposed point of origin of the fire between 10:42 a.m. and 2:15 p.m.
Respondent's adjuster testified as follows: He made an investigation six or eight days after the fire. The burn which destroyed the property of Phillips came down to the railroad right of way at two points. The ground between the right of way and the farm was dry and inflammable. The grass remaining on the right of way was half way to his knees and the same height as the unburned grass in the adjacent fields. He saw coal cinders for a distance of fifty to sixty feet beyond the right-of-way fence.
Respondent did no more than prove that a fire originated on the appellant's right of way a few minutes prior to the arrival of appellant's train drawn by an oil-burning locomotive. By the time the train arrived at the point of origin of the fire, which it is claimed was communicated to Phillips' farm, that fire had already spread over the farm. There was no direct evidence that the fire proceeded from appellant's locomotive, or that the fire was discovered so soon *Page 632 after the passing of appellant's train as to reasonably exclude any other cause for the conflagration. There was no evidence that sparks were thrown from appellant's locomotive, or that there was negligent operation of the locomotive in any manner.
There must be shown more than the mere passing of a train and the mere possibility that an engine drawing that train started the fire to establish responsibility of a railroad company for the origin of a fire which consumes property adjacent to the right of way of such railroad company. General Insurance Co. v.Northern Pacific Ry. Co., 280 U.S. 72; Thorgrimson v. NorthernPacific Ry. Co., 64 Wash. 500, 117 P. 406.
The judgment should be reversed, and the cause remanded with direction to dismiss the action.