Defendant Thorpe's agency is not sufficient to place him in privity with either defendant PCR or defendant Allen. As a general rule, "[t]he relationship of principal and agent or master and servant does not create [the] privity [required to assert res judicata]." Kayler v. Gallimore, 269 N.C. 405, 408 (1967); Gregory v. Penland, 179 N.C. App. 505, 512 (2006). Rather, privity exists only where the principal and agent share a common interest in the outcome of the suit.
Instead, the only relationship relied upon by defendant is the fact that SPC Penland was the employee of the National Guard alleged to be negligent. It is, however, well established that "[t]he relationship of principal and agent or master and servant does not create [the] privity" required for res judicata. Kayler v. Gallimore, 269 N.C. 405, 408, 152 S.E.2d 518, 521 (1967). Indeed, in Kaminsky v. Sebile, 140 N.C. App. 71, 81, 535 S.E.2d 109, 115-16 (2000), this Court held that no privity existed for res judicata purposes between a member of the military and the United States Army.
Instead, the only relationship relied upon by defendant is the fact that SPC Penland was the employee of the National Guard alleged to be negligent. It is, however, well established that "[t]he relationship of principal and agent or master and servant does not create [the] privity" required for res judicata. Kayler v. Gallimore, 269 N.C. 405, 408, 152 S.E.2d 518, 521 (1967). Indeed, in Kaminsky v. Sebile, 140 N.C. App. 71, 81, 535 S.E.2d 109, 115-16 (2000), this Court held that no privity existed for res judicata purposes between a member of the military and the United States Army.
(See General Ins. Co. v. Truck Ins. Exch. (1966) 242 Cal.App.2d 419, 424-425 [ 51 Cal.Rptr. 462]; Argonaut Ins. Co. v. Colonial Ins. Co. (1977) 70 Cal.App.3d 608, 615 [ 138 Cal.Rptr. 855], for authorities and views contrary to the OccidentalF. C. Co., supra, premises; and see Fireman's Fund Ins. Co. v. North Carolina Farm B.M.I. Co. (1967) 269 N.C. 405 [ 152 S.E.2d 513, 518]; 7C Appleman, Insurance Law and Practice (1980 supp.) § 4691; American F. C. Co. v. Pennsylvania T. F.M.Cas.
"It is * * * well settled that the privity, which will create an estoppel by judgment against one not a party to the former action, denotes a mutual or successive relationship to the same right." Kaylor v. Gallimore, 269 N.C. 405, 408, 152 S.E.2d 518 (1966). Accord: Masters v. Dunstan, 256 N.C. 520, 124 S.E.2d 574 (1962); Light Co. v. Insurance Co., 238 N.C. 679, 79 S.E.2d 167 (1953); Leary v. Land Bank, 215 N.C. 501, 2 S.E.2d 570 (1939); Rabil v. Farris, 213 N.C. 414, 196 S.E. 321 (1938).
(50 C.J.S., Judgments, § 798, p. 342; Fischbach v. Auto Boys, 106 N.Y.S.2d 416; see also, Stephens v. Snyder, 65 Ga. App. 36, 14 S.E.2d 687; and Jess v. Great Northern Railway Company, 401 F.2d 535 [9th Cir. 1968].) In Kayler v. Gallimore, 269 N.C. 405, 152 S.E.2d 518, the court said: "It is also well settled that the privity, which will create an estoppel by judgment against one not a party to the former action, denotes a mutual or successive relationship to the same right. . . ."
The question now presented is: When one has sued a principal for damages alleged to have been caused by the negligent acts and omissions of the agent and judgment has been rendered in favor of the principal on the ground that such plaintiff has failed to establish negligence on the part of such agent, may such person thereafter sue and recover from the agent upon allegation of the same injury and the same acts and omissions of the agent? This question was fully considered and determined by us in Kayler v. Gallimore, 269 N.C. 405, 152 S.E.2d 518. For the reason there explained, the answer is that the former judgment in favor of the principal is not a bar to the action against the agent, the agent not having been a party to the former action. A different rule prevails where the first suit is brought against the agent and the judgment therein establishes that the agent was not negligent and thereafter suit is brought against the principal on the ground of respondeat superior.
Furthermore, Crab Orchard, not being a party at the time of the entry of the order by Judge Campbell, is not barred by that order from asserting its claim at this time. Kayler v. Gallimore, 269 N.C. 405, 152 S.E.2d 518; Bank v. Casualty Co., 268 M.C. 234, 150 S.E.2d 396. There was no error in the several orders of Hasty, S.J., permitting intervention by Crab Orchard and Pate in these proceedings.
Therefore, a judgment in favor of Dr. Flitt on the negligence claims bars the same claims being brought against defendant, his employer. See Urquhart, 211 N.C.App. at 129, 712 S.E.2d at 204–05 (holding that collateral estoppel applied where the prior judgment involved the plaintiff's suit against the state employee in his individual capacity and the subsequent suit was brought under the Tort Claims Act); Kayler v. Gallimore, 269 N.C. 405, 408, 152 S.E.2d 518, 521 (1967) (“[A] principal or master, sued for damages by reason of the alleged negligence of his agent or servant, may plead, in bar of such action, a judgment in favor of the agent or servant in a former action by or against the present plaintiff, which judgment establishes that the agent or servant was not negligent.”); Bullock v. Crouch, 243 N.C. 40, 42, 89 S.E.2d 749, 751 (1955) (“[I]f the judgment in the action against the servant had terminated in favor of servant, since the defendants' liability was only derivative, no action could have been sustained against the defendants.”)The Restatement (Second) of Judgments supports plaintiff's position. The Second Restatement drafters comment that “[i]f a judgment of a court of first instance is based on determinations of two issues, either of which standing independently would be sufficient to support the result, the judgment is not conclusive with respect to either issue standing alone.”
2. The December 1990 order certifying the class against UCR and U-Can Rent I is not binding on James Archer, Janice Archer, Voyager, Chrysler First, and U-Can Rent II. Estridge v. Denson, 270 N.C. 556, 155 S.E.2d 190 (1967); Kayler v. Gallimore, 269 N.C. 405, 152 S.E.2d 518 (1967). The Prior Order Is Not Controlling