Steele v. Hash

SHOEMAKER, J.

This is an appeal by Clyde Steele, as administrator of the estate of James D. Steele, from a judgment in favor of the defendant, Robert Hash, in a wrongful death action.

The accident resulting in Steele’s death occurred on December 5, 1958, while he was riding as a passenger in the automobile of one Ralph Adams. On the morning of the accident, Adams and Steele were proceeding across Highway 299, a four-lane freeway, at its intersection with Arlington Road. The Adams car had crossed the two northbound lanes and was proceeding on through the two southbound lanes when it was struck by a southbound car driven by defendant Robert Hash. Adams never saw the Hash car prior to the collision.

Steele died as a result of his injuries, on the day following the accident. His father was subsequently appointed administrator of his estate, and commenced the instant action. Although Adams and Hash were both named as defendants in the complaint, Adams paid the plaintiff $2,500 prior to trial and the plaintiff thereafter dismissed the action, with prejudice, as to defendant Adams. The cause then proceeded to trial against defendant Hash only, which resulted in a verdict and judgment in his favor.

Appellant raises no question as to the sufficiency of the evidence to support the judgment. His sole argument for reversal is that the court erred in admitting evidence, over the objection of appellant, of the amount which Adams had paid appellant prior to the trial, and particularly in instructing the jury with respect thereto, as follows: “You are further instructed that a co-defendant has paid the plaintiff two thousand dollars in settlement. This amount should be deducted by you from the verdict, if you should find for the plaintiff.1,

1

Appellant concedes that under California law any amount paid by one joint tortfeasor in return for a release,

[3]

dismissal with or without prejudice, or covenant not to sue or enforce judgment, operates to reduce pro tanto the amount of damages which the plaintiff may recover against the other joint tortfeasors (Code Civ. Proc., § 877). It is appellant’s position, however, that evidence that a plaintiff has given a release to one tortfeasor in consideration of a specific sum of money ought not to be given the jury. Appellant urges that the jury cannot help but view such evidence as