dissenting.
I dissent from that portion of the majority opinion which holds that the determination in the 1963 criminal action of the issue of defendant’s paternity was not res judicata in this civil action. The Restatement of Judgments § 85(1) (1942) states:
“Where a judgment is rendered in an action in which a party thereto properly acts on behalf of another, the other is
(a) bound by and entitled to the benefits of the rules of res judicata with reference to such of his interests as at the time are controlled by the party to the action;
(b) not bound by or entitled to the benefits of the rules of res judicata with reference to his interests not controlled by the party to the action.”
In this case a judgment was rendered in 1963 in an action brought under General Statute 49-2 for wilful failure of defendant to provide adequate support for his illegitimate child. The party who brought the action (the State of North Carolina) properly acted on behalf of the mother. The mother had a direct, personal pecuniary interest in the outcome of the criminal litigation; for if the father could not have been required to support this child the legal duty to provide support would have fallen upon her. N. C. Gen. Stats. 49-2, 49-4. The fact that the *118State of North Carolina was acting on its own behalf as guardian of the public purse did not preclude it from acting also on behalf of the mother. Therefore under the principle stated by the Restatement the mother (plaintiff) is entitled to the benefits of the rules of res judicata with reference to such of her interests as were at the time controlled by the State of North Carolina. At the time, 1963, all of her interests in this litigation were controlled by the state. She had no civil remedy. State v. Robinson, 245 N.C. 10, 95 S.E. 2d 126 (1956). Therefore she was both bound by and entitled to the benefits of res judicata with regard to questions of fact (here paternity) essential to the judgment which were actually litigated (here by plea of not guilty) and determined by the final judgment in 1963. The defendant is estopped by the criminal judgment to deny his paternity in the civil case.
Taylor v. Taylor, 257 N.C. 130, 125 S.E. 2d 373 (1962), which the majority overrules sub silentio is persuasive authority that there was sufficient mutuality of parties for the rules of res judicata to apply. Taylor is distinguishable only in that it involved a defensive use, while the instant case involves an offensive use, of the principle involved. But King v. Grindstaff, 284 N.C. 348, 200 S.E. 2d 799 (1973) seems to sanction the offensive use of the doctrine. See O. Max Gardner III, “Offensive Assertion of a Prior Judgment as Collateral Estoppel— A Sword in the Hands of the Plaintiff?” 52 N.C.L. Rev. 836 (1974).
Justices Huskins and Moore join in this dissenting opinion.