majority">Pee Cubiam.

We are here concerned only with the counterclaims in the two actions. By way of counterclaim, the present defendant sued the plaintiff’s husband in the former action for damages which she alleges she sustained by the negligence of his wife and agent, the present plaintiff. She was unsuccessful and judgment was entered establishing that the husband was not and is not liable to her by reason of the alleged acts and omissions of his wife, and alleged agent, the present plaintiff. Now, the defendant, by way of counterclaim, sues the wife for the same damages, alleging the same negligent acts and omissions of the wife, the present plaintiff.

It is immaterial that the owner and the driver, sued in succession by the present defendant, by way of counterclaim, are husband and wife. The important relationship between them, for the purposes of the question now before us, is that of principal and agent. While it does not clearly so appear from the record before us, there is no suggestion in thé 'brief or oral argument that the reason for the husband’s victory in his action was, á failure. by the defendant to prove that the wife was the husband’s agent. We, therefore, *94determine the present case on the assumption that the agency of the present plaintiff for her husband was either admitted or established in the former action brought by him against the present defendant.

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. Leary v. Land Bank, 215 N.C. 501, 2 S.E. 2d 570. The basis for the two rules, which appear at first glance to be inconsistent, was discussed in Kayler v. Gallimore, supra.

It was, therefore, error to dismiss the counterclaim on the motion of the plaintiff on the ground of the judgment previously rendered in the action brought by the plaintiff’s husband against this defendant.

Reversed.

Citation profile

Relationships

How this case has been treated — in progress