Barnes Ex Rel. Underwood v. McGee

204 S.E.2d 203 (1974) 21 N.C. App. 287

Benjamin Lewis BARNES, by his Guardian Ad Litem, Mrs. James Underwood, and Floyd P. Barnes
v.
Curtis McGEE et al.

No. 7418SC98.

Court of Appeals of North Carolina.

April 17, 1974.

Smith, Moore, Smith, Schell & Hunter by Richmond G. Bernhardt, Jr., and Vance Barron, Jr., Greensboro, for plaintiffs-appellants.

Henson, Donahue & Elrod by Perry C. Henson and Richard L. Vanore, Greensboro, for defendants-appellees.

VAUGHN, Judge.

A judgment on the merits in favor of the employee precludes any action against the employer where, as here, the employer's liability is purely derivative. Taylor v. Hatchery, Inc., 251 N.C. 689, 111 S.E.2d 864; Pinnix v. Griffin, 221 N.C. 348, 20 S.E.2d 366.

If the judgment dismissing plaintiffs' action against the employee, McGee, is a judgment on the merits, plaintiffs' right to proceed against the employer has been proscribed. In that event alleged errors in dismissing the action against the employer are without practical significance and should not be reviewed on appeal. Kendrick v. Cain, 272 N.C. 719, 159 S.E.2d 33.

Except as provided by subsection (1) of Rule 41(a), no action or claim therein shall be dismissed at the plaintiff's instance except upon such terms as the judge may determine that justice requires. G.S. § 1A-1, Rule 41(a)(2). In this case the judge determined that the dismissal was to be "with prejudice." "A judgment of dismissal with prejudice gives the defending party the basic relief to which he is entitled as to the claim so dismissed." 5 Moore, Federal Practice, § 41.05(2), p. 1066. A dismissal "with prejudice" is the converse of a dismissal "without prejudice" and indicates a disposition on the merits. It is said to preclude subsequent litigation to the same extent as if the action had been prosecuted to a final adjudication adverse to the plaintiff. 46 Am.Jur.2d, Judgments § 482, p. 645. "Dismissal with prejudice, unless the court has made some other provision, is subject to the usual rules of res judicata and is effective not only on the immediate parties but also on their privies." (Emphasis added.) 9 Wright and Miller, Federal Practice and Procedure, § 2367, p. 185-86.

Plaintiffs elected to sue both the employee McGee and the employer. After all the evidence was in, they elected voluntarily to dismiss the action against the employee and proceeded to do so with the knowledge that the dismissal could be with prejudice. It is clear that the dismissal of plaintiffs' claim against the employee "with prejudice" bars further prosecution of that claim against the employee and, insofar as he is concerned, is equivalent to a judgment on the merits in his favor. We are of the opinion that the dismissal should have the same result for the employer whose liability, if any, is derived solely from that of the employee.

There is authority contrary to our opinion in this case. See, e. g., State of Maryland v. Baltimore Transit Co., 38 F.R.D. 340 (D.Md.); Denny v. Mathieu, 452 S.W.2d 114 (Mo.). We do not, however, find the reasoning in those cases and others reaching similar results to be persuasive.

We think the words "with prejudice" are plain and should be given their plain meaning. If this practice is followed in the interpretation of all of our new Rules of Civil Procedure, much litigation can be avoided. It should not be necessary for the court in this and other cases to look behind the words "with prejudice" to determine the meaning of the court in its judgment of dismissal. The judge, in his discretion, could have dismissed the action on such other terms as he, in his discretion, determined that justice required.

For the reasons stated, the propriety of the directed verdict in favor of the employer is now academic. The appeal is, therefore, dismissed.

Appeal dismissed.

BRITT and PARKER, JJ., concur.