Admitting tbe truth of tbe facts alleged and contained in tbe amendment to tbe answer of defendants, as we must do in testing a demurrer, this question arises: Is tbe judgment in tbe Newbern case res judicata of tbe matters alleged in tbe complaint, in and a bar against tbe plaintiffs’ prosecution of this action? We are of opinion and bold tbat tbe question is properly answered in tbe affirmative.
“As to matter set up as defense tbe usual ground of demurrer is its insufficiency, and this may be taken by a formal demurrer or demurrer ore tenus." McIntosh, North Carolina Prac. & Proc., 501, sec. 475; Toler v. French, 213 N. C., 360, 196 S. E., 312; Ins. Co. v. McCraw, ante, 105, 1 S. E. (2d), 369.
Generally, to constitute a judgment an estoppel there must be. identity of parties, of subject matter and of issues. Hardison v. Everett, 192 *506N. C., 371, 135 S. E., 288. It is a principle of elementary law tbat tbe estoppel of a judgment must be mutual, and “ordinarily tbe rule is tbat 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 witb respect to estoppel by judgment, “tbe term ‘privity’ denotes mutual or successive relationship to tbe same rights of property.” Greenleaf on Evidence, Redfield Ed., Vol. 1, sec. 189, p. 216.
Tbat tbe rule tbat only parties and privities are bound by a judgment is subject to certain exceptions is recognized in tbe decisions of this Court. Bank v. McCaskill, 174 N. C., 362, 93 S. E., 905.
In tbe case of Whitehurst v. Elks and Dunbar, 212 N. C., 97, 192 S. E., 850, this Court said: “Where tbe relation between two parties is analogous to tbat of principal and agent, or master and servant, or employer and employee, tbe rule is tbat a judgment in favor of either in an action brought by a third party, rendered upon a ground equally applicable to both, should be accepted as conclusive against tbe plaintiff’s right of action against tbe other.” 15 R. C. L., 1027.
In tbat case tbe liability of tbe defendant Elks depended solely on imputing to him tbe negligence of tbe defendant Dunbar on tbe principle of respondeat superior. From judgment as of nonsuit as to both defendants tbe plaintiff appealed only as to Elks. Tbe judgment was affirmed.
See, also, the cases of Smith v. R. R., 151 N. C., 479, 66 S. E., 435; Morrow v. R. R., 213 N. C., 127, 195 S. E., 383; and Hudson v. Oil Co., ante, 422, 2 S. E. (2d), 26.
“Tbe application of tbe principle of res judicata to persons standing in tbe relation of principal and agent or master and servant has, by some authorities, been supported on tbe ground tbat privity exists between persons standing in these relations. But other authorities deny tbe existence of such privity, and hold tbat in such cases tbe technical rule is, upon grounds of public policy, expanded so as to embrace within tbe estoppel of a judgment persons who are not, strictly speaking, either parties or privies,” 24 A. & E. Enc. of Law (2 Ed.), 752, quoted in Gadsden v. Crafts, 175 N. C., 358, 95 S. E., 610.
But, be tbat as it may, tbe principle is applied and prevails in decisions of courts of tbe several states and of tbe United States, notably among which are these: Doremus v. Root, 23 Wash., 710, 63 Pac., 592, 54 L. R. A., 649; Childress v. Lake Erie and W. R. Co. (Ind. case), 101 N. E., 332; McGinnis v. Chicago, etc., Ry. Co., 200 Mo., 347, 98 S. W., 590; Williford v. Kansas, 154 Fed. Rep., 514; Wolf v. Kenyon, 273 N. Y. S., 170, Sup. Ct., 242, App. Div., 116; Portland Gold Mining Co. v. Strattons, Independence, 16 L. R. A. (N. S.); N. C. and N. R. Co. v. Jopes, 142 U. S., 18, 35 L. Ed., 919; Bigelow v. Old Dominion Copper and Smelting Co., 225 U. S., 111, 56 L. Ed., 1009; Anderson *507v. West Chicago Street Ry. Co., 65 N. E., 717; Antrim v. Legg, 203 Ill., A. 483; Bradley v. Rosenthal, 154 Cal., 420.
In. Doremus v. Root, supra, Fullerton, J., delivering opinion of tbe Supreme Court of tbe State of Washington, said: “From tbe principle tbat there can be no liability on tbe part of tbe employer for tbe act of bis employee in which be took no part, if tbe employer is free from liability, it follows tbat a judgment in favor of tbe employee in an action brought against him for an injury caused by such an act is a bar to a recovery against tbe employer in an action brought against him for tbe same cause of action.”
In Childress v. Lake Erie & W. R. Co., supra, Adams, J., for tbe appellate Court of Indiana, said: “Where it is not claimed tbat tbe master actually participated in or directed tbe commission of tbe wrong, and is only sought to be held under tbe doctrine of respondeat superior, a judgment rendered as in this case, in favor of tbe servant, would bar a judgment against tbe master.”
In McGinnis v. Chicago, etc., Ry. Co., supra, Graves, J., speaking for tbe Supreme Court of Missouri, said: “We are firmly of tbe opinion tbat in cases where tbe right to recover is dependent solely upon tbe doctrine of respondeat superior, and there is a finding tbat tbe servant, through whose negligence tbe master is attempted to be held liable, has not been negligent, as was true in tbe case in band, there should be no judgment against tbe master.”
In Williford v. Kansas, supra, McColl, District J. of Circuit Court, Western District of Tennessee, said: “My conclusion is tbat, tbe plaintiff having tested bis right to recover against tbe servants or agents of tbe master or principal, and having bad bis day in court, be is precluded from testing it again on tbe same issue or issues against tbe master or principal.”
In Wolf v. Kenyon, supra, a New York case, it is said: “Strictly speaking, master and servant are not in privity, but where tbe relationship is undisputed and the action is purely derivative and dependent entirely upon tbe doctrine of respondeat superior, it constitutes an exception to tbe general rule, nor does this lack of mutuality affect tbe exception,” citing Bigelow v. Old Dominion Copper Mining and Smelting Co., supra.
In Portland Gold Mining Co. v. Strattons, Independence, supra, Van Devanter, Circuit J., U. S. C. A., after reviewing pertinent authorities, concludes: “It is settled by repeated decisions tbat tbe general rule tbat one may not have tbe benefit of a judgment as an estoppel unless be would have been bound by it bad it been tbe other way is subject to recognized exceptions, one of which is tbat, in actions of tort, such as trespass, if tbe defendant’s responsibility is necessarily dependent upon *508the culpability of another, who was the immediate actor, and who, in an action against him by the same plaintiff for the same act, has been adjudged not culpable, the defendant may have the benefit of that judgment as an estoppel, even though he would not have been bound by it had it been the other way. And we think it could not well be otherwise, for, when the plaintiff has litigated directly with the immediate actor the claim that he was culpable, and, upon the full opportunity thus afforded for its legal investigation, the claim has been adjudged against the plaintiff, there is manifest propriety, and no injustice, in holding that he is thereby concluded from making it the basis of a right of recovery from another who is not otherwise responsible.”
In Bigelow v. Old Dominion Copper & Smelling Co., supra, the Supreme Court of the United States, speaking through Justice Burton, on the subject of estoppel by judgment, said: “An apparent exception to this rule of mutuality has been held to exist where the liability of the defendant is altogether dependent upon the culpability of one exonerated in a prior suit upon the same facts when sued by the same principal. . . . The unilateral character of the estoppel of an adjudication in such cases is justified by the injustice which would result in allowing a recovery against a defendant for the conduct of another, when that other has been exonerated in a direct suit. The cases in which it has been enforced are cases where the relation between the defendants in the two suits has been that of principal and agent, master and servant, - or indemnitor and indemnitee.”
In applying these principles to the question involved in the present action, it is well to bear in mind the alleged facts with respect to the relationship of the parties to the accident, and to each other. Neither plaintiffs nor the defendant bank were present at the time of, or actively participated in the acts which caused the collision. Defendant bank’s automobile was in the possession and under the control and direction of its servants and agents, W. B. Newbern and Junius Bess, in the line of duty and in the course of their employment. The plaintiffs’ truck was in charge of their servant and employee, Elton Holley, in the line of duty and in the course of his employment. The relationship of master and servant or employer and employee existed between the defendant bank and the intestate Newbern and defendant Bess. The same relationship existed between plaintiffs and Elton Holley. The liability of the defendant bank to plaintiffs, if any, is grounded solely, and is dependent wholly, upon the negligence of its servants and employees, Newbern and Bess, individually or jointly, under the doctrine of respondeat superior.
In the case of Newbern v. Leary, supra, judgment in which is here pleaded by defendants as bar to plaintiffs’ right to prosecute this action,, *509the question of liability for the injury and death of Newbern, resulting from the same collision, has been adjudicated between Leary Brothers, the plaintiffs here, who were defendants there, and Newbern, the agent and servant of the bank. The verdict of the jury is to the effect that the intestate Newbern was injured and killed by the negligence of the agent of Leary Brothers, who was operating their truck, and that although the said intestate by his own negligence contributed to his injury and death, the agent of Leary Brothers, by the exercise of due care, could have avoided the injury and death of the intestate. That being true, can the plaintiffs Leary Brothers now by this separate action charge the defendant bank, the master or employer of Newbern, with liability for acts of its servant or employee, Newbern, for the damage to their truck? The bank’s liability, if any, is not as joint tort-feasor with Newbern or with defendant Bess. It rests solely upon the principle of respondeat superior. The jury having determined, and judgment having adjudicated that the negligence of agent of plaintiffs as alleged in the complaint was the proximate cause of the injury and death of Newbern, servant and agent of the bank, that judgment operates as an estoppel against the right of Leary Brothers to relitigate that question in an independent action against Newbern’s master, the bank.
On the other hand, as between Newbern and Bess, while there is allegation that they both were servants of the bank and that Newbern was the superior of Bess and the alter ego of the bank, the verdict finds that Newbern by his own negligence contributed to his injury and death as alleged in the answer. In pleading contributory negligence it is averred in the answer that “the negligence and careless acts, doings and omission on the part of said plaintiff’s intestate or of his said chauffeur and driver, Junius Bess, or both of them, acting singly or in conjunction in the particulars set forth in this answer” contributed to or proximately caused the injury and death of the intestate.
If, then, Newbern were actively negligent, and Bess were also negligent as charged in the answer, he and Newbern would be joint tort-feasors. “To make joint tort-feasors they must actively participate in the act which causes the injury,” Brown v. Louisburg, 126 N. C., 701, 36 S. E., 166; Smith v. R. R., supra. As between them as joint tort-feasors, their relationship would not be within the exception to the general rule of estoppel, and the judgment in the Newbern case, supra, would not be res judicata of the matters and things here alleged in the complaint in so far as the defendant Bess is concerned. However, the relationship between the bank and Bess, being that of master and servant, and the plaintiff being estopped by the Newbern judgment to prosecute the action against the bank, that estoppel will inure to the benefit of Bess.
*510Tbe fact that this action was instituted before the Newbern action does not change the legal situation. “A prior judgment upon the same cause of action sustains the plea of former recovery, although the judgment is in action commenced subsequently to the one in which it is pleaded. The date is of no consequence; it is the fact of an adjudication between the same parties upon the same subject matter, which gives effect to the former recovery.” Herman on Estoppel and Res Adjudi-cata, Estoppel by Record, p. 126, sec. 120.
The cases of Meacham v. Larus & Bros. Co., 212 N. C., 646, 194 S. E., 99; Rabil v. Farris, supra, and other cases relied upon by plaintiffs are distinguishable in factual situations from the present case. The decision here is not in conflict with the general principles there applied.
On this record the only question considered is whether the plea of res judicata is sufficient to meet the test of demurrer. For the reason hereinbefore stated, we hold that it is sufficient, and to that extent the judgment below is
Affirmed.