Skeen v. Payne

SCOTT (Robert H.), J. pro tem.* Plaintiff brought this action for personal injury against defendant Payne, as driver, and defendant Overland, as owner, of the automobile with which the car in which plaintiff was riding collided. Prior to verdict and judgment, plaintiff settled with Payne for $5,000 and gave him a dismissal without prejudice. Thereafter, plaintiff recovered judgment against Overland, only, for $5,000. Overland appeals from this judgment on the ground that, by plaintiff’s settlement with Payne, the driver, Overland, the owner, has been deprived of rights which he otherwise would have under section 17152 (formerly § 402c) and section 17153 (formerly § 402d) of the Vehicle Code.

[607]These sections are as follows:

‘ ‘ § 17152. Liability of Operator. In any action against an owner on account of imputed negligence as imposed by Section 17150 the operator of the vehicle whose negligence is imputed to the owner shall be made a party defendant if personal service of process can be had upon the operator within this State. Upon recovery of judgment, recourse shall first be had against the property of the operator so served. ’ ’

“§17153. Subrogation of Owner. If there is recovery under this chapter against an owner based on imputed negligence, the owner is subrogated to all the rights of the person injured or whose property has been injured and may recover from the operator the total amount of any judgment and costs recovered against the owner. ’ ’

This objection was urged before the trial court and was overruled. On this appeal, Overland asserts that he has wrongfully been precluded from being able to require plaintiff to have recourse first against property of Payne, and has been deprived of his right to be subrogated to the rights of plaintiff so as to proceed against Payne to recover the amount of the judgment which has been ordered against Overland.

Appellant urges that settlement by Payne precluded further action against Payne by plaintiff arising out of the same injury (under Civ. Code, §1541), and that a dismissal without prejudice was in effect a dismissal with prejudice because the statute of limitations had run as to plaintiff’s claim against Payne. (Code Civ. Proc., § 340.) He further asserts that because plaintiff had no further right as against Payne, appellant could not be subrogated to any right of plaintiff, and therefore appellant could not recover from Payne any amount that appellant would have to pay under the judgment.