Bullock v. Crouch , 243 N.C. 40 ( 1955 )

89 S.E.2d 749 (1955) 243 N.C. 40

Johnnie Norman BULLOCK
v.
M. F. CROUCH, trading and doing business as Crouch Brothers.

No. 389.

Supreme Court of North Carolina.

November 2, 1955.

D. Emerson Scarborough, Yanceyville, for appellant.

Burns & Long, Roxboro, for appellee. Edwin B. Meade, Danville, Va., of counsel.

DENNY, Justice.

The appellant insists that by virtue of the provisions contained in Article IV, Section 1, of the Constitution of the United States, we must give full faith and credit to the judgment entered in the Circuit Court of Pittsylvania County, Virginia, in the action of Bullock v. Cherry. Conceding this to be so, it does not follow that such judgment is binding on the defendant in this action.

To bind Crouch by the Virginia judgment it must appear that he was a party to such action or in privity with the defendant therein. Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111, 32 S. Ct. 641, 56 L. Ed. 1009, Ann.Cas. 1913E, 875; Green v. Bogue, 158 U.S. 478, 15 S. Ct. 975, 39 L. Ed. 1061; Meacham v. Larus & Bros. Co., 212 N.C. 646, 194 S.E. 99; Thomas v. Reavis, 196 N.C. 254, 145 S.E. 226; Hines v. Moye, 125 N.C. 8, 34 S.E. 103; Simpson v. Cureton, 97 N.C. 112, 2 S.E. 668; Bennett v. Holmes, 18 N.C. 486; Briley v. Cherry, 13 N.C. 2, 18 Am. Dec. 561; 30 Am.Jur., Judgments, section 220, page 951.

Since it is admitted that the defendant in this action was not a party to the action in which the judgment sought to be enforced was entered, neither the doctrine of res judicata nor estoppel applies unless there was a privity of relationship between this defendant and Cherry.

In the case of Bigelow v. Old Dominion Copper Mining & Smelting Co., supra [225 U.S. 111, 32 S. Ct. 644], the Supreme Court of the United States said: "No judgment can be regarded as res judicata as to any matter where the rights in the subjectmatter arise out of mutuality, and not by succession, unless the party could, as matter of right, appear and defend, even though he may have had knowledge of the suit. Otherwise, he might be bound by a judgment as to which he had never had the opportunity to be heard, which is opposed to the first principles of justice."

It is likewise said in 50 C.J.S., Judgments, § 802, p. 347, "* * * where the master is not a party to the action against the servant, either actually or through privity of relationship to his servant, a judgment against the servant is not res judicata as against the master", citing Sherwood v. Huber & Huber Motor Exp. Co., 286 Ky. 775, 151 S.W.2d 1007, 1012, 135 A.L.R. 263.

In the last cited case, a judgment had been obtained against the servant, or employee, as in the instant case, and in the suit against the master, or employer, the question was raised as to whether or not the defendants were bound under the doctrine of res judicata by the judgment rendered in the action against their servant. The Court said: "To hold that the judgment in such latter case should be given res adjudicata effect so as to bind one only derivatively liable in a later action against him would destroy the principal ground upon which the doctrine of res adjudicata is founded, which is, that the one so estopped must have been an actual party to the litigation wherein the estopping judgment was rendered, or he must have sustained a privy relationship to one of the actual parties thereto." The Court held that the defendants, not having been parties to the first action of plaintiff against their servant, either actually or through privy relationship to their servant, that the judgment rendered against the latter was not res judicata as against them. It was pointed out, however, that if the judgment in the action against the servant had terminated in favor of the servant, since the defendants' liability was only derivative, no action could have been sustained against the defendants.

The decisions generally are to the effect that in an action ex delicto, where the doctrine of respondeat superior is, or may be, invoked, the injured party may sue the servant alone or the master alone, or may bring a single action against both. And when the action is brought against the servant alone, and a judgment is obtained against him, and such judgment is not satisfied, the injured party may bring an action against the master. In such case, however, the recovery against the master may not exceed the amount of the recovery against the servant. Pinnix v. Griffin, 221 N.C. 348, 20 S.E.2d 366, 141 A.L.R. 1164, and cited cases. However, if the servant satisfies the judgment against him, or obtains a verdict in his favor, no action will lie against the master. Whitehurst v. Elks, 212 N.C. 97, 192 S.E. 850. See also 50 C.J.S., Judgments, § 757, p. 279, where the authorities are assembled.

The ruling of the court below in sustaining the demurrer will be upheld.

Affirmed.