Wesley C. GUNTER
v.
William R. WINDERS, Guardian ad litem for Billy Ray Allen, Oran J. Cottle, Horace Junior Efrid, and Miller Motor Express, Inc.
No. 667.
Supreme Court of North Carolina.
January 20, 1961.*788 Daniel K. Edwards, Durham, for plaintiff-appellant.
Bryant, Lipton, Strayhorn & Bryant, by Victor S. Bryant Jr., Durham, for William R. Winders, guardian ad litem for Billy Ray Allen, minor, and Oran J. Cottle, defendants-appellees.
HIGGINS, Justice.
The plaintiff assigns as error the order of the court sustaining Allen and Cottle's plea in bar upon the ground the issues of negligence and contributory negligence presently involved had been determined by the judgment of the Superior Court of Alamance County in a civil action by Dalrymple, Administrator v. Gunter, Allen and Cottle. At the outset this Court is confronted with the procedural question whether upon the pleadings, including the judgment *789 roll in the Alamance action, enough appears to warrant the Court in passing upon the plea in bar (res judicata) or should decision be reserved until evidence is heard?
In the action now before us Gunter alleged: "11. That the joint and concurring negligence of all the defendants was the sole proximate cause of the collision herein described and of the resulting injuries and damage to this plaintiff." In the Dalrymple case the plaintiff's intestate, (Miss Jones) a passenger in Gunter's Ford was killed. Her administrator alleged Allen and Cottle were negligent in that they (1) failed to keep a proper lookout, (2) failed to keep their vehicle under proper control, (3) failed to observe the speed law, and by reason thereof they negligently ran into the Gunter vehicle from the rear; and that after the impact Gunter negligently drove his vehicle from the north traffic lane across the center line into the southern traffic lane where it collided with the tractor-trailer unit owned by Miller Express, Inc., and driven by Efrid.
In the Dalrymple case separate negligent acts were alleged against Allen and Cottle in striking the Gunter vehicle from the rear. Separate negligent acts taking place thereafter were alleged against Gunter in negligently driving his Ford across the center line of the highway and into the traffic lane of the Miller tractor-trailer. Dalrymple alleged: "That the wreck, injury and death herein complained of directly and proximately resulted from the negligence of the defendants as herein set forth; and that the defendants are jointly and severally liable and responsible to the plaintiff for the resulting damages." It may be noted that the joint and several liability for damages is alleged as a conclusion. The bases for the conclusion are the separate and successive negligent acts set forththat is, the negligence of Allen and Cottle in striking the rear of Gunter's Ford and thereafter the negligence of Gunter in carelessly operating his vehicle from its proper north lane of traffic into the south lane in front of the Miller tractor-trailer. Issues were submitted as follows: "(1) Was the death of Viola D. Jones caused by the negligence of Billy Ray Allen and Oran J. Cottle, as alleged in the complaint? Answer, Yes. (2) Was the death of Viola D. Jones caused by the negligence of Wesley Calvin Gunter, as alleged in the complaint? Answer, Yes." Thus, on the face of the record the allegations and the issues in Dalrymple do not establish joint and concurrent acts of negligence of Gunter on the one hand, and Allen and Cottle on the other. Does the record disclose the presence of all conditions necessary to establish a valid plea of res judicata? "Certainty with respect to the thing determined is one of the fundamentals of every trial; and when the result of that trial is pleaded as res judicata in a subsequent proceeding, it cannot be left to uncertain inference. This is sometimes expressed in the rule that the doctrine of res judicata must be strictly applied. Horn v. Indianapolis Nat. Bank, 125 Ind. 381, 25 N.E. 558, 9 L.R.A. 676; 30 Am.Jur., 909. The right of a party to litigate his claim will not be defeated by a roving abstraction which does not meet the exigent standard of notice and hearinghis day in court guaranteed to him by the Constitution. He is entitled to this either at the one time or the other." Cannon v. Cannon, 223 N.C. 664, 28 S.E.2d 240, 243.
"It is well settled that a verdict must be interpreted with reference to the pleadings, the evidence and the judge's charge. Jernigan v. Jernigan, 226 N.C. 204, 37 S.E.2d 493. And in determining whether a judgment constitutes res judicata the judgment must be interpreted with reference to the pleadings, the evidence, the judge's charge and the issues submitted to and answered by the jury. Clinard v. Town of Kernersville, 217 N.C. 686, 9 S.E.2d 381." Reid v. Holden, 242 N.C. 408, 88 S.E.2d 125, 129.
The allegations and findings in Dalrymple do not, on their face, establish *790 (as the cause of the accident) the joint and concurrent negligent acts of Gunter (present plaintiff) and Allen and Cottle (present defendants). The record, therefore, is insufficient to sustain the plea of res judicata.
Although we note the procedural defect, we have come to the conclusion that the judgment in this case should be reversed on the more fundamental ground that a judgment against two or more defendants in a tort action should not be held conclusive inter se, unless their rights and liabilities were put in issue by their pleadings. The great weight of authority sustains this view. The substance of the general rule, as gathered by the decisions and the text writers, is this: A judgment does not conclude parties to the action who are not adversaries and who do not have opportunity to litigate their differences inter se. "It is generally declared that a judgment operates as res judicata only with respect to parties who were adversaries in the proceedings wherein the judgment was entered * * * The theory of the many decisions supporting the general rule is that the judgment merely adjudicates the rights of the plaintiff as against each defendant, and leaves unadjudicated the rights of the defendants among themselves." 30 A, Am.Jur., "Judgments," § 411; Clark's Adm'x v. Rucker, Ky., 258 S.W.2d 9. "A judgment ordinarily settles nothing as to the relative rights and liabilities of the coplaintiffs or codefendants inter sese, unless their hostile or conflicting claims were actually brought in issue, litigated, and determined." 50 C.J.S. Judgments § 819. Both Am.Jur. and C.J.S. cite cases from many jurisdictions. Bunge v. Yager, 236 Minn. 245, 52 N.W.2d 446; Wiles v. Young, 167 Tenn. 224, 68 S.W.2d 114; Byrum v. Ames & Webb, Inc., 196 Va. 597, 85 S.E.2d 364. Issues and admissibility of evidence are determined by the pleadings. Unless defendants have opportunity to cross-plead, evidence relating exclusively to their differences is inadmissibleresult, an insufficient opportunity to be heard.
This decision is in partial conflict with Lumberton Coach Co. v. Stone, 235 N.C. 619, 70 S.E.2d 673, and subsequent decisions based on its authority. To the extent of the conflict, the former decisions are now overruled. The judgment of the Superior Court of Durham County is
Reversed.