#### QUEEN CITY COACH COMPANY v. FRANK BURRELL, d/b/a BURRELL BAKERY, and MIDDLESEX MUTUAL FIRE INSURANCE COMPANY.

(Filed 4 February, 1955.)

1. Judgments § 32—

A final judgment on tbe merits rendered by a court of competent jurisdiction, in tbe absence of fraud or collusion, is conclusive of tbe rights and facts in issue as to tbe parties and their privies, as a universal rule of expediency, justice, and public tranquillity.

2. Same—

The term “privity,” when used to describe persons barred by the doctrine of *res judicata,*means persons having mutual or successive rights to the same interests in property, and whose interests therefore have been legally represented at tbe previous trial.

3. Same—

The rule that a judgment ordinarily binds only parties and privies, is subject to an exception in favor of an employer, whose liability is purely derivative and dependent entirely upon the doctrine of *respondeat superior.*

4. Same: Attorney and Client § 6—

The fact that one of the attorneys representing the employer in an action against tbe third person tort-feasors had theretofore represented tbe employee in an action against the same defendants, does not import that such attorney was representing the employer in the former action, since the relationship of employer and employee in itself does not confer the power upon tbe one to represent or bind the other in litigation.

5. Judgments § 32: Constitutional Law § 21 —

Every person is entitled to his day in court to assert his own rights or defend against their infringement.

6. Judgments § 32—

In an action by the driver of a bus against the driver and owner of a tractor-trailer involved in a collision with the bus, judgment for defendants was entered on the verdict that the bus driver was not injured by the negligence of defendants. *Held:*The judgment does not bar a subsequent action by the owner of the bus against tbe owner of tbe tractor-trailer to recover for damages sustained by the bus in tbe same collision, since tbe two plaintiffs are not in privity and the principle of mutuality is lacking.

7. Automobiles § 8g— ■

The mere skidding of a *motor*vehicle does not imply negligence.

*4338. Automobiles § 18h (2) — Evidence held sufficient for jury on question of whether skidding of vehicle was result of negligence.

Plaintiff’s bus and defendant’s tractor-trailer, traveling in opposite directions, collided. Evidence favorable to plaintiff tended to show that the road was wet and slippery, that as plaintiff’s bus, traveling between 25 and 30 miles per hour, approached a long, sweeping curve to its right, the bus driver saw the tractor-trailer approaching and slowed his bus so that the tractor-trailer could clear the curve before the bus entered it, and that as the tractor-trailer, traveling between 35 and 45 miles an hour, got within 20 feet of the bus, the trailer jackknifed or skidded around on the bus’ half of the road, resulting in the collision. *Held:*The evidence tends to show that the skidding of the trailer was the result of the negligence of its driver in traveling at a speed greater than was reasonable and prudent under the conditions then existing, and defendants’ motion to nonsuit was properly denied.

9. Negligence § 19c—

A judgment of involuntary nonsuit on the ground of contributory negligence will not be granted unless the evidence on that issue is so clear that no other conclusion seems to be permissible.

10. Automobiles § 18h (3) —

In this action by the owner of a bus to recover for damages to the bus resulting from a collision with a tractor-trailer, the evidence *is held*not to show contributory negligence as a matter of law on the part of the bus driver, and denial of defendants’ motion for involuntary nonsuit was proper.

11. Negligence § 20—

An instruction which charges in effect that defendant must satisfy ifche jury by the greater weight of the evidence that plaintiff was guilty of all of the acts of negligence relied upon before the jury should answer the issue of contributory negligence in the affirmative, must be held for prejudicial error.

Appeal by defendants from *Rudisill, J.,*June Term 1954 of MECKLEN-BURG.

Civil action to recover damages for injury to a bus owned by plaintiff and driven by its employee, J. J. Canipe, in furtherance of its business, allegedly caused in a tractor-trailer and bus collision by the actionable negligence of Frank Burrell, doing business under the trade name of Burrell Bakery.

The-defendant Burrell on 4 December 1951 answered denying negligence, pleading contributory negligence, and setting up a counter-claim for damage to bis trailer.

The plaintiff procured an order making the Middlesex Mutual Fire Insurance Company a defendant on account of the defendant Burrell’s counter-claim, because the Insurance Company had a $350.00 deductible policy of collision insurance on the tractor-trailer of Burrell.

*434Tbe plaintiff filed an amended reply alleging contributory negligence on tbe part of tbe defendant Burrell.

On 5 October 1953 tbe defendant Burrell filed a plea in bar to plaintiff’s action alleging it was *res judicata,*based on tbe following facts: In January 1952 J. J. Canipe, tbe driver of plaintiff’s bus at tbe time of tbe collision complained of in tbe instant case, instituted an action against Burrell, tbe defendant herein, and M. A. Dennis, bis driver, in tbe Superior Court of Burke County to recover damages for personal injuries in tbe collision allegedly caused by tbe actionable negligence of Burrell. Tbe defendants Burrell and Dennis answered denying negligence and pleading contributory negligence. Tbis action was tried at tbe March Term 1953 of tbe Superior Court of Burke County before a judge and jury, and tbe jury found by its verdict that Canipe was not injured by tbe negligence of tbe defendants. Judgment was entered on tbe verdict. Canipe did not appeal, and the time for appealing has expired. Judge Rudisill overruled tbe plea in bar, and tbe defendants excepted.

Appropriate issues were submitted to tbe jury. Tbe jury found by its verdict that tbe plaintiff’s bus was damaged by tbe negligence of tbe defendant Burrell, as alleged; that tbe plaintiff was Not Guilty of contributory negligence, and awarded damages; and left unanswered tbe issues on tbe defendants’ counter-claim.

Judgment was entered in accord with the verdict, and tbe defendants appeal.

*John F. Ray and Shearon Harris for Plaintiff, Appellee.*

*Brown & Mauney, Helms ■& Mulliss, James B. McMillan, and John D. Hides for Defendants, Appellants.*

Parker, J.

Tbe defendants assign as error tbe overruling of tbe plea in bar.

Plaintiff’s bus at tbe time of the collision was operated by J. J. Canipe, tbe plaintiff’s employee, in furtherance of plaintiff’s business. Canipe brought a suit against the defendant Burrell, defendant in tbis action, and bis truck driver, for personal injuries. Tbe case was tried in Burke County Superior Court, and resulted in a verdict that Canipe was not injured by tbe negligence of tbe defendants. Pinal judgment was entered upon tbe verdict. Canipe did not appeal, and tbe time for appealing has expired.

Tbe defendants contend that tbe judgment in Canipe’s action in Burke County is *res judicata*as to plaintiff’s action here for damages to its bus in tbe same collision.

Tbe doctrine of *res judicata*is a principle of universal jurisprudence, forming a part of tbe legal systems of all civilized nations as an obvious *435rule of expediency, justice and public tranquillity. *Evers v. Williams,*43 Obio App. 555, 184 N.E. 19. That principle is concisely stated in 30 Am. Jur., Judgments, p. 908 : “Briefly stated, tbe doctrine of *res judi-cata*is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.”

This Court said in *Leary v. Land Bank,*215 N.C. 501, 2 S.E. 2d 570: “Generally, to constitute a judgment an estoppel there must be identity of parties, of subject matter and of issues. *Hardison v. Everett,*192 N.C. 371, 135 S.E. 288. It is a principle of elementary law that the estoppel of a judgment must be mutual, and ‘ordinarily the rule is that only parties and privies are bound by a judgment.’ *Rabil v. Farris,*213 N.C. 414, 196 S.E. 321; 116 A.L.R. 1083. 'When used with respect to estoppel by judgment, ‘the term “privity” denotes mutual or successive relationship to the same rights of property.’ Greenleaf on Evidence, Redfield Ed., Vol. 1, Sec. 189, p. 216.”

“And in the case of *McMullin v. Brown,*2 Hill Eq. 457, the trial judge whose decree was affirmed said: ‘And I understand by the term privy, when applied to a judgment or decree, one whose interest has been legally represented at the trial.’ ” *First Nat. Bank v. U. S. F. & G. Co.,*207 S.C. 15, 35 S.E. 2d 47. To the same effect see: 50 C.J.S., Judgments, p. 325; 30 Am. Jur., Judgments, p. 957.

. . a party will not be concluded, against his contention by a former judgment, unless he could have used it as a protection, or as the foundation of a claim, had the judgment been the other way . . .” 50 C.J.S., Judgments, p. 293; *Leary v. Land Bank, supra; Meacham v. Larus & Bros. Co.,*212 N.C. 646, 194 S.E. 99.

To the rule that a judgment ordinarily binds only parties and privies there is an exception “in favor of the master whose liability is purely derivative and dependent entirely upon the doctrine of *respondeat superior.” Pinnix v. Griffin,*221 N.C. 348, 20 S.E. 2d 366; *Leary v. Land Bank, supra; Good Health Dairy Products, Inc., v. Emery,*275 N.Y. 14, 9 N.E. 2d 758, 112 A.L.R. 401, Anno. p. 404.

“The rule appears to be quite well established that a judgment for the defendant in an action growing out of an accident is not *res judicata,*or conclusive, as to issues of negligence and contributory negligence, in a subsequent action based on the same accident and brought against the same defendant by a different plaintiff.” Anno. 133 A.L.R., p. 185 IIIa. See also: *Meacham v. Larus & Bros. Co., supra; Rabil v. Farris,*213 N.C. 414, 196 S.E. 321 (Adverse judgment against minor in action by *436minor, brought by father as next friend, held not to bar action by father to recover for loss of services of minor).

The great weight of authority seems to be that a judgment for the plaintiff in an action growing out of an accident is not *res judicata,*or conclusive as to issues of negligence or contributory negligence, in a subsequent action growing out of the same accident by a different plaintiff against the same defendant. *Tarkington v. Printing Co.; Dunston v. Printing Co.,*230 N.C. 354, 53 S.E. 2d 269; Anno. 133 A.L.R., p. 185 IIIb.

“It is well established that an adjudication unfavorable to a wife in an action by her for personal injuries is not *res judicata,*or conclusive, as to negligence or contributory negligence, in an action by her husband for loss of services or *consortium*because of such injuries; there being no privity between the respective plaintiffs.” 133 A.L.R. 199, where cases are cited.

The only evidence in the Record of the trial of Canipe’s action in Burke County is the Complaint, Answer and Judgment. There is no allegation in the plea in bar that plaintiff here had anything to do with Canipe’s case in Burke County, nor any evidence to that effect. It is true that one of plaintiff’s lawyers here represented Ganipe in his case in Burke County. However, that mere fact is no evidence that this lawyer was representing plaintiff here in the trial of Canipe’s case. “The relation of employer and employee, in and of itself, does not confer upon the employer any power to represent or to bind the employe© in litigation.” *Pesce v. Brecher,*302 Mass. 311, 19 N.E. 2d 36.

It is elementary and fundamental that every person is entitled to his day in court to assert his own rights or to defend against their infringement. The parties are not identical. The present plaintiff was not a party to Canipe’s action in Burke County. It had no control over the conduct of Oanipe’s trial; it could not cross-examine opposing witnesses, or offer witnesses of its own choice. The alleged rights of Queen City Coach Company and J. J. Canipe were entirely separate and distinct. Queen City Coach Company’s cause of action is for property damage; Canipe’s for personal injuries. Neither could assert them in whole or in part for or in the name of the other. *Meacham v. Larus & Bros. Co.,*supra; Anno. 133 A.L.R., p. 185; G-.S. 1-57, “Actions must be prosecuted in the name of the real party in interest . . .”

The exact question raised by the plea in bar does not seem to have been presented to this Court before for decision. Counsel for the parties in their briefs have cited no case presenting the same or substantially the same facts, and no text writer discussing the exact question.

Similar facts to the ease here were presented in *Gentry v. Farruggia,*132 *W.*Va. 809, 53 S.E. 2d 741. In that case Chester Gentry sued *437Charles Farruggia to recover damages for personal injuries suffered by Gentry when a taxicab owned by J oe Bengey and driven by Gentry collided with a truck owned and operated by Farruggia. Farruggia filed a special plea alleging that at the May Term 1948 of the Circuit Court of Ealeigh County, a verdict was returned and judgment entered in his favor in an action brought by Joe Bengey against him, in which Bengey sought to recover for property damage to the vehicle owned by him, and damaged in the same collision. The plea alleged that Gentry, as the agent, servant and employee of J oe Bengey, was driving the taxicab at the time and place of the same collision alleged by Gentry to have given rise to his right of action and alleged by Bengey in the former action as ground for his recovery. The Circuit Court sustained the defendant’s plea of *res judicata,*and certified to the Supreme Court of Appeals this question: “Is the final judgment in favor of the defendant in the ease of *J oe Bengey v. Charles Farruggia*heretofore rendered in the Circuit Court of Ealeigh County a bar to the right of the plaintiff in this case to maintain this action ?” The Supreme Court of Appeals answered the question No, and reversed the order of the Circuit Court. The rationale of the Court is: the relationship between Gentry and Bengey does not create privity of interest; and second “that the plea fails because the alleged circumstances preclude the idea of mutuality which is a necessary element of the doctrine sought to be applied”; that plaintiff would not be entitled to a judgment based upon the mere proof of a recovery by Bengey in his action, if he had recovered; and that “both litigants must be alike concluded, or the proceeding cannot be set up as conclusive upon either.”

This question was presented for decision in *Philadelphia Auburn-Cord Co. v. Shockcor,*133 Pa. Super. 138, 2 A. 2d 501: “Does a judgment against the president of a corporation individually, in his action for personal injuries, bar a subsequent action by the corporation for the property damage it sustained in the same accident?” In the municipal court of Philadelphia County there had been a judgment on a verdict for plaintiff for the sum of $925.23. Defendant appealed. The Court said in a Per Curiam opinion: “The case is ruled in principle against the appellant by the decision of the Supreme Court in *Woodburn v. Pennsylvania Railroad Co.,*294 Pa. 174, 144 A. 93. The court, in a per curiam opinion, there said: ‘Though the same defendant figures in both cases, yet, since the record tendered as evidence involved an issue pending between a plaintiff other than the one now at bar, the mere fact that the injury to both plaintiffs occurred in the same accident, and that the present plaintiff appeared as a witness for the other plaintiff, would not make the judgment for defendant in such other suit *res judicata*in this suit. *Walker v. Philadelphia,*195 Pa. 168, 173, 174, 45 A. 657, 78 Am. St. Rep. 801; *438*Siegfried v. Boyd,,*237 Pa. 55, 58-60, 85 A. 72.’ On tbe authority of tbe *Woodburn Case,*tbe judgment is affirmed.”

In Blashfield’s Cyclopedia of Automobile Law and Practice, Perm. Ed., Yol. 9, p. 113, it is said: “A judgment against an employee or agent in bis suit for injuries sustained in an automobile accident does not, necessarily, bar a subsequent action by tbe employer or principal for property damage to an automobile in tbe same accident.” Tbe above Pennsylvania Case is cited as authority for tbe statement.

In *Pesce v. Brecher, supra,*tbe third beadnote in 19 N.E. 2d 36 correctly states tbe decision of tbe Court: “A truck driver was not estopped from suing motorist for injuries sustained in collision, by reason of judgment against driver’s employer in prior action instituted by motorist against employer for property damages caused by collision, where driver was not a party to prior action, notwithstanding that driver testified as a witness in prior action.” Tbe Court in its opinion said: “Tbe present plaintiff was not a party to tbe former action. He is not in privity with any party in the sense that bis rights are derived from one who was a party. His cause of action is and always has been bis own. It is in no way derived from bis employer, who was a party. . . . That tbe plaintiff testified as a witness in tbe former action is immaterial. . . . Tbe essential elements of an estoppel by judgment are lacking, citing authorities.”

A ease involving the same principle of law is *Elder v. New York & P. Motor Express,*284 N.Y. 350, 31 N.E. 2d 188, 133 A.L.R. 176. Tbe first beadnote in A.L.R. correctly summarizes tbe decision. It is: “A judgment in consolidated actions between trucking companies, each company having brought suit against the other independently to recover for property damage based on alleged negligence resulting in a collision between two trucks, is not *res judicata*in a subsequent action by tbe driver of one of tbe trucks to recover for personal injuries against tbe trucking company against which judgment in tbe first action bad been entered.” Tbe Court said in tbe close of tbe opinion: “In tbe case at bar plaintiff was one of tbe two principal actors in tbe collision and bis right to recover has not been adjudicated in tbe previous action. Tbe proposed abrogation of tbe rule of mutuality would seem to lead to a complete abrogation of tbe rule, even if tbe new exception now urged upon us should be confined to that class of cases where tbe defendant has been a plaintiff in tbe prior action.”

Tbe defendants rely principally upon this *quaere*in *Stansel v. McIntyre,*237 N.C. 148, 74 S.E. 2d 345: “Hence, if it be found that tbe automobile in question was owned and maintained by James H. Austin, and was being operated by Mrs. Austin, all within tbe family purpose doctrine, *quaere,*is be, James H. Austin, under tbe principle of *respondeat superior,*estopped by tbe judgment on tbe verdict in tbe Scotland County *439eases in respect to the issues on which original defendants now seek contribution from Mrs. Austin? Compare *Leary v. Land Bank, supra.'’*The defendants McIntyre and Adcox invoked the aid of G.S. 1-240 to determine and enforce contribution against Mrs. Austin and her husband. Prior to the institution of the Stansel action, McIntyre and Adcox had sued Mrs. Austin in Scotland County to recover damages for property damage and personal injuries, respectively, arising out of the same collision in which the person for whom Stansel is administrator was killed, and Mrs. Austin had filed a counterclaim for damages for her personal injuries. The trial in Scotland County resulted in a verdict that Mrs. Austin was Not Guilty of negligence in injuring and damaging McIntyre and Adcox, that Mrs. Austin was injured by the negligence of McIntyre and Adcox, but that she was guilty of contributory negligence. Judgment was entered on the verdict. On appeal no error was found in the trial. 235 N.C. 591, 70 S.E. 2d 837. The question asked by this Court does not relate to the plaintiff Stansel. It relates solely to the defendants. Mrs. Austin had a complete trial of her case under her management in Scotland County. It would seem that Mr. Austin should not have a second opportunity to prove the same facts which his wife failed to prove the first time in the trial in Scotland County. It would appear that if the jury answered the issues in Stansel’s favor, that as between McIntyre and Adcox and Mr. & Mrs. Austin the judgment that Mrs. Austin was guilty of contributory negligence would as to Mr. Austin call for the application of the principle of derivative liability, though he was not a party to the case in Scotland County. Anno. 133 A.L.R., p. 192 VII. The facts to which the *quaere*relates are the converse of the facts in *Leary v. Land Bank, supra,*but would seem to call for the application of the principle of law therein decided. In the *Stansel Case*the plaintiff there had had no previous opportunity to prove her case. This *quaere*concerns principles of law entirely different from the question for our decision as to defendants’ plea in bar here.

The defendants admit in their brief that the plaintiff here is not in privity with J. J. Canipe. The facts alleged in the plea in bar preclude the principle of mutuality. The facts do not come within an exception to the rule of mutuality. The essential elements of *res judicata*are lacking. The trial court was correct in overruling the plea in bar. The plaintiff here has a right to its day in court. If plaintiff ultimately makes a recovery, it would present no more than a case of contrary verdicts by different juries and opposing judgments. See *Tarkington v. Printing Co.; Dunston v. Printing Co., supra,*p. 358.

Defendants next assign as error the trial court’s denying their motion for judgment of nonsuit. The evidence favorable to plaintiff tended to show these facts: Shortly after 4:00 a.m. on 15 September 1951 Canipe *440was driving its bus, containing 5 passengers, on Highway No. 70. He was going to Asheville, which was West. The bus, about 3 miles West of the Town of Cleveland, was going down a slight grade at a speed of between 25 and 30 miles an hour. It had been raining hard, but the rain had slowed down. The road was very slick when wet, because the rain had washed the gravel and rock off the road so there was little gravel in the tar. That was the reason for the slow speed of the bus. Defendant’s tractor-trailer was traveling East on this road, and meeting the bus. Defendant’s driver testified he traveled frequently over this road delivering bread, and that it was a pretty slick road. That as the bus approached a long, sweeping curve to its right, Canipe saw the tractor-trailer coming around this curve meeting him. Canipe slowed his bus still more so the tractor-trailer could clear the curve before he entered it. The tractor-trailer prior to the impact was traveling approximately between 35 and 45 miles an hour. When the bus got within 20 feet of the front of the tractor-trailer, the trailer part came around on the bus’ half of the road. Canipe had moved over to his right as far as he could, until he could feel his right wheels dropping off on the shoulder of the road, which was the North side of the road. The trailer jackknifed into the bus. That tracks, apparently made by the tractor-trailer, were in plaintiff’s traffic lane.

The mere skidding of a motor vehicle does not imply negligence. *Mitchell v. Melts,*220 N.C. 793, 18 S.E. 2d 406; *Springs v. Doll,*197 N.C. 240, 148 S.E. 251. However, considering the evidence in the light most favorable to the plaintiff, there was evidence tending to show that the skidding of the trailer was the result of the negligence of the defendant Burrell’s driver in driving the tractor-trailer carelessly and heedlessly, at a speed greater than was reasonable and prudent under the conditions then existing, and on the wrong side of the highway. That evidence makes it a case for the jury. *Waller v. Hipp,*208 N.C. 117, 179 S.E. 428; *Williams v. Thomas,*219 N.C. 727, 14 S.E. 2d 797.

The defendants contend that the plaintiff by its own evidence established contributory negligence of its bus driver, and cannot recover. A judgment of involuntary nonsuit on the ground of contributory negligence will not be granted, unless the evidence on that issue is so clear that no other conclusion seems to be permissible. *Singletary v. Nixon,*239 N.C. 634, 80 S.E. 2d 676. In our opinion, from a study of the evidence, such contention is without merit.

We have refrained from stating the evidence fuller, because there must be a new trial for error in the charge. The evidence offered by the defendant required the submission of an issue of contributory negligence. The defendants assign as error this part of the charge: “If the defendant has satisfied you from the evidence and by its greater weight that the plaintiff was operating his bus on Highway No. 70, and that while oper*441ating tbe same be failed to keep a proper lookout, failed to bave bis bus under control and did operate bis bus on tbe wrong side of tbe center of said highway, and that be was operating bis bus at an excessive rate of speed and that be did operate bis bus so as to collide with tbe trailer operated by tbe defendant, this would constitute contributory negligence on tbe part of the plaintiff, and if tbe defendant has further satisfied you from the evidence and by its greater weight that such contributory negligence and collision combined and concurred with tbe defendant’s negligent acts and contributed to the damage of tbe defendant as tbe proximate cause thereof as an element without which tbe damages to bis trailer would not bave occurred, tbe Court instructs you that it would be your duty to answer tbe second issue Yes. If tbe defendant has failed to so satisfy you that tbe plaintiff was negligent, by tbe evidence and by its greater weight, you will answer that issue No.”

To find tbe plaintiff guilty of contributory negligence, tbe judge instructed tbe jury that tbe defendant must satisfy them that tbe plaintiff was guilty of *all*tbe acts of negligence enumerated as to it in tbe charge, whereas it was sufficient for defendant to satisfy tbe jury of either, when alleged and supported by evidence. *Burnett v. Seventh Street Produce Co.,*(Ark.), 47 S.W. 2d 38; *Rogers v. Mason,*(Ill. 1952), 104 N.E. 2d 354.

For error in tbe charge there must be a new trial, and it is so ordered.

New trial.