Taylor v. Denton Hatchery, Inc.

111 S.E.2d 864 (1960)

251 N.C. 689

F. L. TAYLOR v. DENTON HATCHERY, INC.

No. 531.

Supreme Court of North Carolina.

January 14, 1960.

*865 David H. Armstrong, Troy, for plaintiff, appellant.

W. D. Sabiston, Jr., Carthage, for defendant, appellee.

MOORE, Justice.

There is a single question for decision on this appeal. Is the judgment in the case of Taylor v. Hunt, referred to above, res judicata of the matters alleged in the complaint and is it a bar to the prosecution of the instant action? The question must be answered in the affirmative.

"While a person injured by the tort of a servant may bring suit against either the master or servant, a recovery against the master has been held to bar a subsequent action against the servant, and a recovery against the servant has been held to bar a subsequent action against the master, or, *866 at least, to fix the maximum limit of the master's liability; and, where plaintiff in an action against an employee is defeated on the merits, the judgment is generally regarded as a bar to a subsequent action against the employer, and vice versa, at least when the master is not guilty of any independent or concurrent wrong, but must be held, if at all, under the doctrine of respondeat superior." 50 C.J.S. Judgments § 757, p. 279.

Plaintiff first sued Hunt, the agent, and was defeated on the merits. In the case at bar there is no allegation that defendant, the principal, was guilty of any independent or concurrent wrong. The principal, if liable at all, must be held under the doctrine of respondeat superior. Therefore the judgment in the suit against Hunt bars the maintenance of the present action.

The applicable principle of law has been repeatedly stated in decisions of this Court. In Pinnix v. Griffin, 221 N.C. 348, 350, 20 S.E.2d 366, 369, 141 A.L.R. 1164, it is said: "We have held that the verdict and judgment against the plaintiff on the issue of negligence in an action against the servant is conclusive and bars a later action by the same plaintiff against the principal. This is the law when the master is not guilty of any independent or concurrent wrong but must be held, if at all, under the doctrine of respondeat superior." Holdings to the same effect appear in Stone v. Carolina Coach Co., 238 N.C. 662, 664, 78 S.E.2d 605; Leary v. Virginia-Carolina Joint Stock Land Bank, 215 N.C. 501, 506, 2 S.E.2d 570; Morrow v. Southern R. Co., 213 N.C. 127, 129, 195 S.E. 383; Whitehurst v. Elks, 212 N.C. 97, 98, 192 S.E. 850.

Ordinarily, in order for a judgment to constitute an estoppel there must be identity of parties, subject matter and issues, and only parties and privies are barred and estopped by a judgment. But, conceding that Hunt and defendant are not in privity, the factual situation presented by the case at bar is an exception to the general rule. Leary v. Virginia-Carolina Joint Stock Land Bank, supra, and the authorities therein cited and discussed.

Plaintiff makes the ingenious argument that the negligent conduct complained of was the direct act of defendant, since a corporation can act only through agents. He further contends that the suit against Hunt as an individual was improper since he was acting in his representative, rather than his individual, capacity. To so hold would work a denial of an injured plaintiff's option to sue either the principal or agent or both. That he has this option and right is repeatedly stated in the authorities above cited. See also Wachovia Bank & Trust Co. v. Southern R. Co., 209 N.C. 304, 309, 183 S.E. 620. Plaintiff's contention is without merit.

The further contentions of plaintiff have no merit. The ruling of the court below is in accord with settled principles of law.

Affirmed.