Kidd v. Hillman

[508]

TYLER, P. J.

Action to recover for damages to an automobile sustained in a collision. Plaintiff’s complaint alleged in substance that on or about the 18th day of January, 1931, she was operating her automobile on the Bayshore highway in San Mateo County when another automobile carelessly and negligently operated by an agent of appellant forcibly collided with her machine and damaged it. She also alleged and prayed for damages for loss of its use. The action was filed April 14, 1933. Plaintiff had previously commenced an action against defendant Hillman and others growing out of the same collision, on January 16, 1932. In this prior action, as here, she alleged she had sustained certain injuries to her person and property. Plaintiff alleged appellant’s driver was negligent, which was the cause of the collision, and that he was driving the appellant’s automobile with his permission. In this prior complaint, she alleged, in addition to certain personal injuries, that she had sustained property damage to clothing worn by her in the sum of $100. This action resulted in a verdict for plaintiff and against defendants for the sum of $1,000. Thereafter, on May 20, 1932, she executed and delivered to defendant Hillman a certain instrument in writing by the terms of which she released him for the sum of $950 from all liability, past and present, by reason of his imputed negligence. A few days later satisfaction of said judgment was entered. Thereafter, as above recited, she instituted the present action to recover for further damage to her property sustained in the selfsame collision, and alleged that she was at all times the owner of the automobile in which she was riding, and as a result of the collision it was damaged in the sum of $475.49. She also prayed for $150 additional damages for loss of the use of her car. The latter claim was abandoned at the trial. Appellant set up the release, the execution of which is not disputed. He also pleaded that plaintiff was splitting a cause of action. He alleged the commencement of the prior action, the judgment, and the fact that both actions were predicated upon the same act of negligence. In passing it may be stated that it appeared in evidence that at the time the prior action was filed John Kidd, the husband of plaintiff, sued the same appellant and alleged in his complaint that the automobile which forms the basis of the present suit was broken and damaged by the