dissenting. I do not feel there was any prejudicial error in this case and I would affirm the judgment.
I am not at all certain the testimony on which the issue is raised was inadmissible. The witness McCormick was not shown to have been an agent of appellee. According to appellant’s abstract, before objection was made he gave the following testimony:
.... I discussed cattle owned by Mrs. Ramsey with Mr. Smith just after the first trial at Farmerville. I told him that the cows were Louise’s and he said they were his.
Then on April 15 (T. 14) of this year he came to my house. He drove up and I went out where he was and Bill said “You get up here in the car. I want to talk to you.” I got up there in the car with him and he said, “I want you to go down to Louise’s or Mrs. Ramsey’s and tell her I’ll give her SI,250.00, you know, to compromise.”
After objection, according to appellant’s abstract, he added:
Well, to finish it, (T. 17) Bill said, “I’ll give her $1,-250.00 and the cows back, but one of the calves are about dead. The cows run at it and knock it around and it’s about dead. Truett West is my lawyer and I’ll go over to Ellis Smith’s and see them.” He asked if I would go ahead and see Mrs. Ramsey but she had flu and I wouldn’t go down there.
I concede that the portion of the testimony given before the objection, standing alone, would have been inadmissible. But if the witness had been permitted to complete his statement, as he did in chambers, there is a very good argument supporting its admissibility.
This theory was clearly recognized in Cunningham v. Davis, 203 Ark. 982, 159 S.W. 2d 751. That was a suit for overtime pay under the authority of the Fair Labor Standards Act. The appellee-plaintiff was permitted, over objection, followed by motion for mistrial, to testify as follows:
“Q,. What did he ask. you? A. If I didn’t want to compromise and let him pay me for the overtime when he was paying twenty-five cents — [1]
The trial judge instructed the jury not to consider the offer of compromise as evidence against the defendant, but left the testimony to the jury for what it was worth. We quoted from the annotation “Admissibility of admissions made during discussion of compromise” to Erickson v. Webber, 80 A.L.R. 919. The statements were to the effect that if a statement forming a part or connected with an offer of compromise is an admission of an independent fact pertinent to the question in issue, evidence of the statement is admissible and that “express admissions of liability made during negotiations for compromise have been held to be admissible in evidence.” We also cited 26 Am. Jur. 478, Evidence, § 566, and Lake v. Wright, 186 Ark. 227, 53 S. W. 2d 233. There is very respectable authority in support of this principle. II Wigmore 34, 39, § 1061; O'Bryan v. Home-Stake Production Company, 195 Kan. 213, 403 P. 2d 978. The nearest we seem to have come to a rejection of this rule is Wilkerson v. Gerard, 200 Ark. 125, 138 S.W. 2d 76. I submit that there was a much more positive admission of liability here than there.
While I agree the majority reached the right result in holding that, the fact the offer was not made to appellee or to one who was her agent was not decisive, it was necessary to resort to authorities in foreign jurisdictions to support this decision. I find authorities seeming to permit a contrary resült. See San Francisco Iron & Metal Co. v. American Milling & Industrial Co., 115 Cal. Ap. 496, 1 P. 2d 1008; 31 C.J.S. Evidence § 285, p. 728.
Regardless of the correctness of the court’s ruling, however, there is enough support for appellee’s position that, in considering the prejudicial effect of the testimony, we should view it as having been offered in good faith and not in a deliberate effort to prejudice the jury, an important element in determining whether a mistrial should have been declared. It should also be noted in this regard that the testimony as to the offer came as a response to an inquiry whether appellant had come to the witness and said anything about the cattle. The response of the witness probably was a little more comprehensive then the examiner expected. A simple “yes” would have been a complete answer.
I cannot conceive of any means the trial court could have taken to sanitize the trial by elimination of any possible prejudice than was taken herein. The effect of the majority opinion is that a mistrial must be declared whenever any testimony relating to an offer of compromise is heard by the jury, however it may have come about and regardless of the lack of bad faith on the part of the parties. We have said many times that the declaration of a mistrial is such a drastic step that it should not be resorted to unless justice cannot be served by a continuation of the trial or unless prejudice cannot be removed by any other step or means. See Rickett v. Hayes, 256 Ark. 893, 511 S.W. 2d 187 (1974). Usually such a step has been reserved for cases where there is flagrant misconduct of counsel or a deliberate and gratuitous reference to obviously improper matter. See. Shroeder v. Johnson, 234 Ark. 443, 352 S.W. 2d 570; Ward v. Haralson, 196 Ark. 785, 120 S.W. 2d 322; First National Bank of Springdale v. Hobbs, 248 Ark. 76, 450 S.W. 2d 298; Oliver v. Jones, 239 Ark. 572, 393 S.W. 2d 248; Ragon v. Day, 228 Ark. 215, 306 S.W. 2d 687. Usually we say that the trial judge must be accorded the broadest latitude in determining the appropriate action to eliminate the prejudicial effect of incompetent testimony. See Arkansas State Highway Commission v. Shepherd, 239 Ark. 1010, 395 S.W. 2d 743; Briley v. White, 209 Ark. 941, 193 S.W. 2d 326. Here the majority has really accorded him no latitude in just such a matter.
I dissent!
Twenty-five cents per hour was the straight-time pay basis.