concurring specially:
I concur that appellant is entitled to a new trial. In my view the “Mary Carter Agreement,” insofar as it (1) agrees that Scott shall remain in the action as a party defendant, and (2) provides that the agreement between Scott and the plaintiff shall remain a secret one, is not binding on the trial court because it is collusive and for the obvious purpose of permitting plaintiff to obtain testimony and other assistance from Scott during the trial of the matter which would not otherwise be available. To this extent the adversary nature of the matter has been compromised. Because Scott has no further interest in defending against the claims of the plaintiff, I would hold the trial court should dismiss him from the case as a defendant. Because, by the terms of the agreement, Scott stands to benefit in the event of a large plaintiff’s verdict against the appellants, such fact should be revealed to the jury, if Scott testifies, so that the jury, in considering Scott’s testimony, may weigh his bias and interest. Breit-kreutz v. Baker, cited in the majority opinion. See also dissenting opinion by Tray-nor, J. in Pellett v. Sonotone Corporation, 26 Cal.2d 705, 160 P.2d 783 (1945) wherein the “real significance” of an agreement which requires the settling defendant to remain as a party defendant is discussed.