Skeen

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:

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…