The opinion
TRAYNOR, J.
I dissent. This proceeding involves separate causes of action against several defendants. (Code Civ. Proc., §§ 379 a-c; see Kraft v. Smith, 24 Cal.2d 124, 128 [ 148 P.2d 23 ] ; Peters v. Bigelow, 137 Cal.App. 135, 141 [ 30 P.2d 450 ]; Prosser, Torts, p. 1101.) Plaintiff contends that Compton caused the injury by negligently failing to remove plaster and cotton from plaintiff’s ear, and that since he acted as *714 Sonotone’s agent, Sonotone, as well as Compton, is liable for Compton’s negligence. Plaintiff also contends that Brown and Sonotone are independently liable for his injury, even if Compton is not, on the grounds that Brown failed to supervise Compton properly and advised plaintiff that the pain in his ear was to be expected and was of no consequence, and that Sonotone gave improper instructions to its agents.
In my opinion, plaintiff’s agreement with Compton covered only the cause of action based on Compton’s own negligence and did not relate to plaintiff’s causes of action based on the independent acts of negligence of the other defendants. (See Ash v. Mortensen, 24 Cal.2d 654, 658-659 [ 150 P.2d 876 ] ; Prosser, Joint Torts and Several Liability, 25 Cal.L.Rev. 413, 423-425, 442-443; Prosser, Torts, p. 1107-1111.) Plaintiff may therefore pursue any cause of action involved in this action consistent with lack of negligence on the part of Compton. As to the cause of action based on Sonotone’s liability for Compton’s negligent conduct as Sonotone’s agent, I believe that plaintiff is bound by his agreement with Compton that the latter was not at fault. He cannot claim that the agreement is fictitious in order to pursue a cause of action against Sonotone based on Compton’s culpable conduct as Sonotone’s agent.
It is not necessary to determine in this case whether a principal who is secondarily liable for negligent conduct of his agent is released from liability if the plaintiff makes a compromise with the agent wherein the plaintiff for partial satisfaction of his claim for damages releases the agent. When the secondarily liable defendant is a surety, a release of the principal debtor ordinarily discharges the debt for which the surety is secondarily liable and releases the surety. (Lamb v. Wahlenmaier, 144 Cal. 91, 95 [ 77 P. 765 , 103 Am.St.Rep. 66 ] ; see Holden v. Mensinger, 175 Cal. 300, 304 [ 165 P. 950 ] ; 4 Williston, Contracts (rev. ed.) § 1220.) It is also settled that a verdict in favor of an agent in a tort action terminates the liability of the principal, since that liability is based on the agent’s alleged fault and is incompatible with a verdict denying blameworthy conduct on the part of the agent. (Bradley v. Rosenthal, 154 Cal. 420, 423 [ 97 P. 875 , 129 Am.St.Rep. 171 ] ; Pimple v. Southern Pacific Co., 38 Cal.App. 727, 731 [ 177 P. 871 ] ; see 78 A.L.R. 365 ; 1 Cal.Jur. 845.) The agreement in the present case was not a compromise and did not give plaintiff partial or full satisfaction for his damages. In *715 my opinion the five dollars to be paid by Compton upon the execution of the agreement was only a nominal consideration for plaintiff’s promise “that in the event a judgment is entered against said G. L. Compton ... he will not levy execution upon said judgment against any property of said G. L. Compton and . . . will make no demand upon G. L. Compton to pay said judgment or any part thereof.”
The real significance of the agreement, which was to be concealed from Sonotone and the court, appears from the circumstances under which it was made. Those circumstances speak for themselves. Any person who introduces foreign substances into the body of another must exercise care in removing them (see Ales v. Ryan, 8 Cal.2d 82, 106 [ 64 P.2d 409 ] ; Engelking v. Carlson, 13 Cal.2d 216, 221 [ 88 P.2d 695 ]; Armstrong v. Wallace, 8 Cal.App.2d 429, 439 [ 47 P.2d 740 ].) Plaintiff could therefore assume that he had a promising case with respect to the cause of action based on Compton’s negligence and could expect to recover from Sonotone the damages caused by the negligence of its agent Compton. It is apparent that plaintiff was interested in maintaining the outward appearance of a lawsuit against Compton in order to get Compton’s testimony as a presumably hostile witness to prove Compton’s negligence and to make Sonotone responsible for that negligence. Hence the agreement that in substance provided that Compton’s testimony would not make him responsible to plaintiff. This scheme made the action against Compton a collusive proceeding. It is clear that plaintiff expected by this agreement to secure favorable testimony from Compton in his action against Sonotone, and that Compton’s true performance was to be the giving of favorable testimony. Since the contract could not set forth such an immoral consideration it was predicated on the agreement that Compton was not guilty of culpable conduct. It provided; “Whereas, Charles S. Pellett, through his attorney, has become satisfied that the defendant, G. L. Compton, in the performance of any acts or his negligent failure to do anything which should have been done, was subject to the direction and control and supervision of John B. Brown and the Sonotone Corporation, and that any negligence on the part of said Dr. G. L. Compton, ivas not due to any culpability of said G. L. Compton.” (Italics added.)
Plaintiff should be bound by his agreement that there was *716 no culpability on Compton’s part. He should not be allowed to maintain that this agreement was fictitious after contriving to obtain Compton’s favorable testimony by promising him immunity from liability. (See Civ. Code, § 3517.) He cannot agree that Compton is blameless and at the same time make Compton’s principal liable on the basis of culpable conduct of Compton. Fraud would be encouraged if it were held that such an agreement has no effect on the principal’s liability, which depends solely on the fault of the agent. The public policy underlying the liability of the principal for the agent’s torts (Otis Elevator Co. v. First National Bank, 163 Cal. 31, 39 [ 124 P. 704 , 41 L.R.A.N.S. 529 ] ; Bank of California v. Western Union Telegraph Co., 52 Cal. 280, 288 ; see Prosser, Torts, p. 472) has no effect when the plaintiff and the agent conspire to make the principal alone responsible for the agent’s fault.
Edmonds, J., concurred.