concurring.
I concur in the result reached in the majority opinion. Rut I think that the Insurance Company was estopped by the judgment entered in the case of Wright v. Swain and .Smith to assert the defense that Anna L. Wright was riding in the Smith ear as a paid passenger.
Under the terms of its policy the Insurance Company as.sumed full control of the suit against Smith. Its counsel appeared for him in both the lower court and in the appellate court and successfully established the status of Anna E. Wright as a gratuitous guest in the car.
*267It is well settled that under such circumstances the Insurance Company was bound by all matters litigated and decided in the suit as fully as if it had been an actual party thereto.
In 15 R. C. L., Judgments, Sec. 483, page 1010, the author says: “The courts look beyond the nominal parties, and treat all those whose interests are involved in the litigation arid who conduct and control the action or defense as real parties, and hold them concluded by any judgment which may be rendered, as for example those who employ counsel in the case, assume the active management of the proceeding or defense, and who pay the costs and do such other things as are generally done by the parties. In other words, by participating in the proceedings one is estopped by the judgment as to any questions actually litigated and decided therein.”
These principles were recognized and applied by this court in the opinion written by Chief Justice Campbell in Wright v. Wright, 164 Va. 245, 253, 254, 178 S. E. 884.
See also, Freeman on Judgments (5th Ed.), Vol. I, Sec. 430, p. 936; Id., Sec. 446, pp. 976, 977; Aetna Life Ins. Co. v. Maxwell (C. C. A. 4), 89 F. (2d) 988; 34 C. J., Sec. 1427, pp. 1006, 1007.
Mr. Justice Spratley concurs in this view.