concurring specially. The majority opinion holds that the former judgment is not binding upon the plaintiff in the present litigation, because the former judgment did not result from an actual contested trial in the United States Court, but resulted from an agreement between the parties. I do not find any support in law for this position. Whether the former judgment is the result of an agreement, or default, or consent, or contested trial, it is binding on the parties and their privies. Code § 110-501. See Webster v. Dundee Mtg. &c. Co., 93 Ga. 278 (3) (20 SE 310); Kidd v. Huff, 105 Ga. 209 (1) (31 SE 430); Moore v. Butler, 150 Ga. 154 (1) (103 SE 154); Alford v. Smith, 224 Ga. 802 (164 SE2d 781). And, of course, it is binding both on parties and privies. Smith v. Wood, 115 Ga. App. 265, 266 (4b) (154 SE2d 646); Blakewood v. Yellow Cab Co., 61 Ga. App. 149 (2, 3) (6 SE2d 126); Code §§ 3-607, 38-114, 38-623, 105-1805, 110-501.
It has been held, however, that where a husband or wife is injured as the result of a tort, neither is the privy of the other. The husband may file the first suit, and lose it; and the wife then may file suit and win it, the first judgment being no bar because husband and wife are not privies in such cases. See Hare v. Southern R. Co., 61 Ga. App. 159 (6 SE2d 65); Commercial Credit Corp. v. C. & S. Nat. Bank, 68 Ga. App. 393, 394 (23 SE2d 198); Morris v. Ga. Power Co., 65 Ga. App. 180 (1a) (15 SE2d 730); and Harris Equip. Co. v. McGuigan, 104 Ga. App. 612 (122 SE2d 286).
Of course, there is privity between employer and employee, master and servant, and principal and agent, because tortious conduct by the servant while in prosecution of the master’s business renders the master liable; and if the wife should be agent of the husband in commission of tortious acts whereby another is injured, the husband would be liable. Code § 105-108.
But in the case sub judice there is another principle of law which enables the plaintiff to withstand the defense of former judgment. Here, the plaintiff, Howard Edward Couch, filed the first suit in Whitfield Superior Court, against Harold Blakely and Neely Produce Company, as defendants.
With a great show of speed, the defendant, Harold Blakely, filed an action in United States District Court against Howard Couch, National Truck Service, Inc., and Refrigerated Transport Company. Service was not perfected on Howard Edward Couch, and this resulted in his being dismissed from the Federal court action. But judgment was rendered before the state court action was tried, in favor of Harold Blakely, plaintiff, and against National *631Truck Service, Inc. and Refrigerated Transport Company. Thus, Harold Blakely, who is defendant in the state court action, obtained a judgment in federal court against the trucking company employer of Howard Edward Couch.
Ordinarily, Harold Blakely, defendant in the case sub judice, would have the right to plead his judgment against the employer of Howard Edward Couch, National Truck Service, Inc., and Refrigerated Transport Company, Inc., in bar, as res judicata, because such judgment presumes that the negligence of the truck driver was adjudicated against Couch and in favor of Blakely. The privity between the employer, Refrigerated Transport Company, Inc., and its employee and driver of its truck, Couch, would ordinarily afford Blakely the privilege of pleading same in bar, even though Couch himself was never served and was dismissed from the federal suit.
But here Couch sued Blakely first and his state court suit was pending when Blakely rushed into federal court, and with more than "deliberate speed,” obtained judgment before a trial was held as to the action pending in state court. Code § 3-607 provides that: "A former recovery or the pendency of a former suit for the same cause of action, between the same parties, in the same or any other court that has jurisdiction shall be a good cause of abatement.” Also see Russ Transport, Inc. v. Jones, 104 Ga. App. 612, 613 (122 SE2d 282).
It would have simplified this case if Couch could have gone into federal court and filed a plea of pending suit, which would have effectively prevented the obtaining of any judgment against him in the federal court action.
It may be thought that Couch should have gone into federal court with a plea of pending suit. But it must be remembered that. Blakely did not afford him that right, in that Blakely failed to perfect service on Couch and dismissed him from the suit. Thus, Couch was not required or allowed to plead the pending suit as a bar to the federal court action.
I do not find any precedent on this question, that is, where suit is pending in a court of competent jurisdiction, and the defendant rushes into a federal court and files another suit and obtains judgment, and then pleads it in estoppel or bar of the earlier suit which was pending against him when he filed the federal action.
Counsel for defendant Blakely must be given credit for ingenuity in this attempt, including the failure to serve Couch, so it would be made certain that Couch could not come forth and plead the *632pending suit, but still their efforts ought not to be allowed to succeed. I concur with the result reached by the majority opinion.