Daniel v. Adorno (D.C.App.) 107 A.2d 700. See also Beauchamp v. Clark, 250 N.C. 132 ( 108 S.E.2d 535); Lampley v. Bell, 250 N.C. 713 ( 110 S.E.2d 316, 317); Heinemann Creameries v. Milwaukee Auto. Ins. Co., 270 Wis. 443 ( 71 N.W.2d 395); Birkholz v. Cheese Makers Mut. Cas. Co., 274 Wis. 190, supra; Klotz v. Lee, 36 N.J. Super. 6 ( 114 A.2d 746); Hurley v. McMillan (Tex.Civ.App.) 268 S.W.2d 229. In none of the cases is the rule stated with more clarity than in the case of Cochran v. Bell, 102 Ga. App. 617, 618 ( 117 S.E.2d 645), written by Judge J. M. C. Townsend: "It follows from the foregoing statements of law that where following an automobile collision in which both the plaintiff and the defendant suffer damage, the insurance company carrying the plaintiff's liability insurance pays the defendant some amount in satisfaction of his claim against the plaintiff and receives a release of all claims in return therefor, this constitutes a settlement of the entire injury and damage which, while not binding upon the plaintiff in the first instance because not authorized by him, places the plaintiff in a position of being able to elect whether to ratify or repudiate the settlement."

The issue is now before us for the first time. In Klotz v.Lee, 36 N.J. Super. 6 ( App. Div. 1955), plaintiff agreed to accept $12,500 from one defendant without regard to the jury's verdict and agreed to collect no more than 50% of the verdict from the codefendant if the verdict ran against both. The jury returned a verdict of $35,000 against the nonsettling defendant alone.

They agree generally that the amount paid should be deducted from the judgment against the other tortfeasor. Some hold that the jury should make the deduction, others that the court should make it. See the cases in the annotation in 104 A.L.R. 931, and Cf. Brandstein v. Ironbound Transp. Co. (Ct. of Errors Appeals of N.J.), 172 A. 580, with Klotz v. Lee (Super. Ct. N.J.), 114 A.2d 746, 749, appeal dismissed, 121 A.2d 369. In the setting in which the problem is here presented, we find the thinking of the Illinois courts persuasive.

Other courts when faced with the precise facts at bar have so held. Gill v. United States, 429 F.2d 1072, 1078-1079 (5th Cir. 1970) citing McMullen v. Coleman, 135 S.W.2d 776 (Tex.Civ.App. 1940); Riexinger v. Ashton Co., 9 Ariz.App. 406, 453 P.2d 235 (1969); Steger v. Egyud, 219 Md. 331, 149 A.2d 762 (1959); Klotz v. Lee, 36 N.J.Super. 6, 114 A.2d 746 (1955); Jacobsen v. Woerner, 149 Kan. 598, 89 P.2d 24 (1939). See also Sweep v. Lear Jet Corp., 412 F.2d 457, 461 (5th Cir. 1969); W. Prosser, Law of Torts § 50, p. 305 (4th ed. 1971).

The Supreme Court reversed the plaintiff's verdict, holding the agreement deprived the trial of its proper adversary character, thus appellants were denied a fair trial because irregularities so warped presentation of the case. The court distinguished the case of Klotz v. Lee, 36 N.J. Super. 6, 114 A.2d 746 (1955) on which Scott relies heavily in the present case. In Klotz nothing was paid to plaintiff prior to trial.

Most courts that have addressed the issue, while not declaring these agreements void, have permitted the disclosure of the contracts to the jury when offered by a nonsettling defendant. See, e. g., Hemet Dodge v. Gryder, 23 Ariz. App. 523, 534 P.2d 454 (1975); Ward v. Ochoa, 284 So.2d 385 (Fla. 1973); Gatto v. Walgreen Drug Co., 61 Ill.2d 513, 337 N.E.2d 23 (1975); Burkett v. Crulo Trucking Co., 355 N.E.2d 253 (Ind. App. 1976); Grillo v. Burke's Paint Co., 275 Or. 421, 551 P.2d 449 (1976); but see Klotz v. Lee, 36 N.J. Super. 6, 114 A.2d 746 (1955), appeal dismissed, 21 N.J. 148, 121 A.2d 369 (1956). The Illinois Supreme Court wrote in Reese v. Chicago, B. Q. R.R. Co., 55 Ill.2d 356, 303 N.E.2d 382, 387 (1973), that "the use of loan agreements tends to undermine the adversary nature and integrity of the proceedings against the remaining defendant."

We deem agreements whereby insurance carriers agree to any pay consideration to foster litigation in which they are not interested, in order to avoid their own liabilities, contrary to law and public policy. Klotz v. Lee, 114 A.2d 746 (N.J.Super. 1955), one of two decisions upon which respondent relies, is no authority to the contrary, because that case involved an essentially different type of agreement. A comparison to the one before us is instructive.

Burnham v. Williams, 198 Mo.App. 18, 25, 194 S.W. 751, 753; Birkholz v. Cheese Makers Mut. Cas. Co., 274 Wis. 190, 79 N.W.2d 665, 666; Wm. H. Heinemann Creameries, Inc. v. Milwaukee Auto. Ins. Co., supra, 71 N.W.2d loc. cit. 399-400; Daniel v. Adorno, D.C.Mun.App., 107 A.2d 700, 701; Jetton v. Polk, 17 Tenn. App. 395, 68 S.W.2d 127, 131; Isaacson v. Boswell, 18 N.J.Super. 95, 86 A.2d 695, 698; Last v. Brams, 238 Ill.App. 82, 84; Perry v. Faulkner, 98 N.H. 474, 102 A.2d 908. Graves Truck Line v. Home Oil Co., 181 Kan. 507, 312 P.2d 1079, 1081 (2); Fikes v. Johnson, 220 Ark. 448, 248 S.W.2d 362, 364(3), 32 A.L.R.2d 934, 937 (3); Klotz v. Lee, 36 N.J.Super. 6, 114 A.2d 746, 748, appeal dismissed 21 N.J. 148, 121 A.2d 369; U.S.A.C. Transport v. Corley, 5 Cir., 202 F.2d 8, 11-12(2); Foremost Dairies v. Campbell Coal Co., 57 Ga. App. 500, 196 S.E. 279; 5A Am.Jur., Automobile Insurance, § 117, p. 119. Contrast Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 1001, where the insurer had settled a suit against its insured and disposition of a subsequent suit by such insured was controlled by our compulsory counterclaim statute, section 509.420 RSMo 1949, 30 V.A.M.S.

Beauchamp v. Clark, 250 N.C. 132, 108 S.E.2d 535, and cited cases. See also Wm. H. Heinemann Cream v. Milwaukee Auto Ins. Co., 270 Wis. 443, 71 N.W.2d 395; Birkholz v. Cheese Makers Mutual Casualty Co., 274 Wis. 190, 79 N.W.2d 665; Klotz v. Lee, 36 N.J. Super. 6, 114 A.2d 746; Hurley v. McMillan (Tex. Civil App.), 268 S.W.2d 229; Anno: Liability Insurer — Settlement — Effect, 32 A.L.R.2d 937. It is said in 5A Am. Jur., Automobile Insurance, section 117, page 119: "An automobile liability insurers settlement of a claim against the insured, made without the insured's consent or against his protests of nonliability, and not thereafter ratified by him, will not ordinarily bar an action by the insured against the person receiving the settlement, on a claim arising out of the same state of facts.

" See also Bedford School District v. Caron Construction Company (1976), 116 N.H. 800, 367 A.2d 1051; and Klotz v. Lee (1955), 36 N.J. Super. 6, 114 A.2d 746. In the Bedford School District case it is noted, at 1054, that: