Hutchins v. Waters

[71]

Opinion

ELKINGTON, J.

The parties have presented an “Agreed Statement on Appeal” which, as we find relevant, recites the following:

“The case was for personal injuries suffered by plaintiff-appellant William Hutchins, on June 11, 1971 when the bus which he was driving was struck in the rear by the vehicle of the defendant-jrespondent] Gerald G. Waters. At the time of the collision, Appellant had stopped his bus in the traffic lane next to the bus zone since there was a truck parked in the bus zone.

“On August 30, 1973. Appellant’s case was consolidated for trial with the action for personal injuries by Frances Thomas, arising from the same collision. Ms. Thomas was a passenger in the San Francisco Municipal Railway bus driven by Appellant.

“On December 20, 1973 an Offer to Compromise, pursuant to CCP § 998 was made to both plaintiffs by defendant Waters. The offer was for an aggregate sum of Six Thousand Two Dollars ($6,002.00). The amount to be apportioned to Appellant was specified in the offer as Two Thousand Two Hundred Fifty-one Dollars ($2,251.00) but neither party could accept the offer unless the other also agreed to accept.

“On January 7. 1974 both cases were tried in the Superior Court in San Francisco, and a verdict was returned in favor of the Plaintiff-Appellant in the amount of $750.00.

“On January 25. 1974, defendant filed a Memorandum of Disbursements. pursuant to CCP § 998 for his costs from the beginning of the action. On February 1. 1974, plaintiff filed a Motion to Strike defendant’s cost bill and/or retax costs.

“The matter was heard by the trial judge on February 27. 1974 and plaintiff’s Motion to Strike defendant’s costs was granted, only as to one-half of the jury fees.

“The sole issue on appeal is whether the defendant should be granted his costs under CCP § 998 when the

Offer of Compromise [that] was made was for an aggregate sum with the apportionment between the plaintiffs given but which had to be accepted bv both plaintiffs.