dissenting.
Because it is my opinion that the majority’s affirmance of the grant of summary judgment to the Railroad results in a denial of due process to the Norrises, I must dissent. “ ‘Privity does not mean those who might be affected and whose liability might be fixed by the same set of facts.’ [Cit.]” Smith v. Wood, 115 Ga. App. 265, 269 (154 SE2d 646) (1967). “[A]n agency or master-servant relationship [does not] ipso facto [constitute] privity for purposes of res judicata or estoppel by judgment.” Davis v. Bryant, 117 Ga. App. 811, 812 (162 SE2d 249) (1968). Instead, determining the applicability of res judicata and es-toppel by judgment in cases involving the master-servant relationship has become somewhat complicated by virtue of another legal principle involved in such cases, to wit: derivative liability. With specific reference to a master, the applicability of res judicata and estoppel by judgment is dependent upon the outcome of the previous suit against *397his servant and the nature of the subsequent suit in which the master is a party. If the subsequent suit is premised upon respondeat superior, the master as a defendant may claim the benefit of an earlier judgment favorable to his servant. Gilmer v. Porterfield, 233 Ga. 671 (212 SE2d 842) (1975). However, regardless of the outcome of an earlier suit by or against his servant, that judgment will not bar a subsequent suit brought by a master in his capacity as a plaintiff. “Due process of law requires that the master, not having been a party to the prior adjudication, have his day in court.” (Emphasis supplied.) Gilmer v. Porterfield, supra at 674. Accordingly, under these rules, the Railroad would, as a general proposition, be entitled to rely upon the previous judgment in the Fulton County action as a defense to a subsequent suit brought against it based upon its liability for the negligence of its flagman. However, this does not resolve the issue in the instant case. The specific question is whether the Railroad is entitled to raise the previous judgment as a viable defense against the Nor-rises. In order for the Norrises to be barred by the judgment in the Fulton County action they too must be privies of a party to that judgment. “While the judgment of a court of competent jurisdiction is conclusive between parties and privies as to the issue which it decides, it is not so as to third persons.” Hart v. Manson, 119 Ga. 865 (4) (47 SE 345) (1904).
With reference to a servant, it likewise appears that the applicability of res judicata depends upon the outcome of the previous suit against his master and the nature of the subsequent suit in which the servant is a party. When the servant is the defendant in a subsequent suit, he may, under certain limited circumstances, be entitled to claim the benefit of a previous judgment in favor of his derivatively liable master. See McNeal v. Paine, Webber, Jackson & Curtis, Inc., 249 Ga. 662, 664 (293 SE2d 331) (1982). Compare Gilmer v. Porterfield, supra. The servant may, in certain circumstances, also be entitled to rely defensively upon a previous judgment which was unfavorable to his master. See Nannis Terpening & Assoc. v. Mark Smith Constr. Co., 171 Ga. App. 111 (318 SE2d 89) (1984).
However, as noted above, the issue in the instant case is the extent to which a servant who becomes a subsequent plaintiff will be barred by a previous judgment which was unfavorable to his master. It appears that in such a circumstance, the same rule attaches as in the case of a master whose servant has previously been sued to an unfavorable judgment. That is, the servant likewise will not be bound by his master’s previous unfavorable judgment. See generally Davis v. Bryant, supra; Hunter v. Embree, 122 Ga. App. 576 (178 SE2d 221) (1970). Again, due process is the reason that the servant is not bound by his master’s unfavorable judgment. “The motivating reason is succinctly stated thusly: ‘. . . because it is unjust to bind one by any *398proceeding in which he had no opportunity to make a defense, to offer evidence, to cross-examine witnesses, or to appeal, if he was dissatisfied with the judgment.’ [Cit.]” Blakely v. Couch, 129 Ga. App. 625, 629 (200 SE2d 493) (1973). See also Blakewood v. Yellow Cab Co., 61 Ga. App. 149 (3) (6 SE2d 126) (1939). The Norrises have never had this opportunity. The majority opines that the Norrises seek to reliti-gate the same issue as that which was raised in the Fulton County action. The truth is they have never litigated. They were not parties to the Fulton County action. Contrary to Judge Beasley’s special concurrence, I know of no rule of law that requires one to intervene in a suit as a defendant in order to preserve his rights as against another who is also not a party to the action. Res judicata and estoppel by judgment depend upon privity, not judicial economy. Judicial economy, if violative of due process, is neither judicious nor economical.
Thus, under the generally recognized principles of res judicata and estoppel by judgment, the Norrises are not bound by the judgment against SDSI in the Fulton County action. Davis v. Bryant, supra. “Due process of law requires that [the Norrises], not having been [parties] to the prior adjudication, have [their own] day in court.” Gilmer v. Porterfield, supra at 674. Accordingly, as against the Norrises, I would hold that the Railroad has no res judicata or estop-pel by judgment defense.
The majority asserts, however, that the Railroad was properly granted summary judgment under the “doctrine of binding precedent.” See Lowe Engineers v. Royal Indem. Co., 164 Ga. App. 255, 259 (297 SE2d 41) (1982). Apparently, as the majority recognizes, the legal principle denominated as the “doctrine of binding precedent” entered the jurisprudence of this State in Bray v. Westinghouse Elec. Corp., 103 Ga. App. 783 (120 SE2d 628) (1961). In that case, a wife’s previous unsuccessful suit for loss of consortium was held to constitute a bar to her husband’s subsequent suit for personal injuries. However, in Stapleton v. Palmore, 162 Ga. App. 525-526 (291 SE2d 445) (1982), it was expressly recognized that the Bray decision was in conflict with another line of eases which held “that the spouse is neither privy nor party to the injured plaintiff’s cause of action insofar as consortium rights are concerned, and thus under principles of res judicata is not barred by a prior verdict in an earlier trial in favor of the defendant as to liability for tort to the injured party. . . .[Cits.]” This court concluded in Stapleton that the latter line of cases was controlling rather than Bray and its progeny. On certiorari, the Supreme Court agreed that Bray would no longer be considered controlling authority in this State. Stapleton v. Palmore, 250 Ga. 259 (297 SE2d 270) (1982). Thus, insofar as the Supreme Court has clearly established that the Bray decision does not constitute viable authority, I believe that any discussion of the “doctrine of *399binding precedent” must start from the premise that it is currently a doctrine of somewhat dubious effect.
Moreover, the necessity for legal resort to the so-called “doctrine of binding precedent” has recently been questioned. “[T]he result in Lowe was mandated by application of the established doctrine of es-toppel by judgment.” Knight v. Western Intl. Hotels &c. Co., 172 Ga. App. 630, 632-633 (323 SE2d 914) (1984) (Carley and Beasley, JJ., concurring specially). As previously noted, the law has long recognized that the principles of res judicata and estoppel by judgment have applicability in cases which involve'derivative liability. See generally Roadway Express v. McBroom, 61 Ga. App. 223, 227 (6 SE2d 460) (1939). The principles of res judicata and estoppel by judgment apply not only in cases in which the derivative liability is predicated upon respondeat superior; they also have application in cases where the derivative liability is predicated upon indemnification. For example, McArthor v. Ogletree, 4 Ga. App. 429, 433 (61 SE 859) (1908) discusses the application of the principle of “estoppel by judgment” in the context of a subsequent action for indemnification. The action in Lowe Engineers was predicated upon contractual indemnification. The insurer-defendant’s liability was ultimately based upon the liability of the insured-plaintiff for the death of the latter’s employees and upon a contract of indemnification. Thus, the insurer-defendant in Lowe Engineers was entitled to rely upon the previous judgment against its insured as “fix[ing] the maximum limit of liability” (Roadway Express v. McBroom, supra at 227), and as “determining] the relationships and liabilities between [itself] and [its insured]” ([McArthor v. Ogletree, supra at 432), insofar as the contract specifically excluded coverage for the liability established by the previous judgment. Accordingly, although the result in Lowe Engineers was correct. I would overrule it insofar as it purports to enunciate a “doctrine of binding precedent” which, under existing law, I find to be not otherwise necessary or warranted and which — as demonstrated by the majority opinion in the instant case — is susceptible of being applied in such a way as to violate the due process rights of litigants.
The majority apparently concludes that the Norrises are not being denied due process because the doctrine of binding precedent is applicable. I submit that the majority’s analysis is backwards. The question should be whether application of the doctrine of binding precedent would violate due process under the circumstánces of the instant case. The Fulton County action established only SDSI’s liability to one of the Railroad’s employees. The Norrises were neither parties nor are they privies to a party in that action against Mr. Norris’ employer. Davis v. Bryant, supra. The instant action seeks to establish the Railroad’s liability to the Norrises. It is not barred by res judicata or estoppel by judgment, and, as discussed, I do not believe *400that there is any viable separate “doctrine of binding precedent” in this State. I note again that “[d]ue process of law requires that [the Norrises], not having been [parties] to the prior adjudication, have [their] day in court.” Gilmer v. Porterfield, supra at 674. Accordingly, I must respectfully dissent.
Decided March 15, 1985 Rehearing denied March 29, 1985 L. Lin Wood, Jr., John O. Moore, Thomas F. Brown II, for appellants. Willis G. Haugen, Delia T. Crouch, for appellee.I am authorized to state that Presiding Judge McMurray joins in this dissent.