filed the following dissenting opinion after reargument.
Unfortunately I find myself unable to concur with the majority opinion filed in this case. It is one that literally will affect untold numbers of future trials. It is based entirely upon the theory of the potential right of Sudbrook to contribution from National; yet Sudbrook did not complain, she did not appeal.
Apparently the question is a novel one. It should be borne in mind that the plaintiff below is the only party who has taken an appeal here. Counsel for all parties concede they were unable to find a case on all fours with the present one, and the majority opinion does not seem to claim that it cites any on all fours with it. The nearest by analogy contained therein, E. Coast Lines v. M. & C. C. of Baltimore, 190 Md. 256, 58 A. 2d 290, will be fully dealt with later. I shall note in passing, however, that the question here being considered was not discussed, nor was there a single citation of authority offered thereon, in the opinion filed in that case. Surely, if such an important question, one that would control the practice of all similar cases in Maryland, were being determined (the present majority opinion contains thirteen pages and deals with this subject alone) the public and the Bar were entitled, at least, to have some discussion thereof in the opinion. Also the owner of the potential right to contribution therein appealed from the granting of the motion for a directed verdict.
If we assume that the plaintiff’s appeal protected Sud-brook’s potential right to contribution from National, the conclusion reached by the majority ruling is, in my opinion, still not right. In short, it holds that when two alleged joint *506tortfeasors are sued as defendants, if one makes a motion for a directed verdict and it is granted, the one to whom the directed verdict is granted is bound, upon reversal on appeal, by the subsequent proceedings at the trial, although not permitted to participate therein. The responsibility of counsel at the trial table oftentimes is grave and weighty, and, to my mind, this ruling will add to it immeasurably. It furnishes little consolation to say that if you make a “bad guess,” you and your client must suffer the “vicissitudes” of your action. New lawyers are endowed with the powers of clairvoyancy, and litigants should not be subjected to the requirement that they rest their rights upon such powers. In fact, it is the boasted claim of the law that one of its cherished goals is a quest for certitude to eliminate “guesswork” from the administration of justice.
The basis of the ruling is the familiar and well established principle of law that in an action for indemnity between two persons, who stand in such a relation to each other that one of them has a duty of indemnifying the other upon a claim by a third person, if the third person has obtained a valid judgment on this claim in a separate action against the indemnitee, both are bound as to the extent and existence of the liability of the indemnitee, if the indemnitee gave to the indemnitor reasonable notice of the action and requested him to defend it, or participate in the defense, but the indemnitor declined or jailed so to do. This has been the law for many years. With this, the text writers, the case law and Restatement agree, but nowhere has it yet been said that the rule applies to one who has appeared and been granted a motion for a directed verdict, or that it changes the usual and customary practice relating to such motions. However, the majority of the Court broaden this rule so as to treat a corporation, that has appeared, participated in the trial and availed itself of the customary and well-recognized methods of defense, on the same footing with a person who has declined or jailed to participate in the defense. I find nothing in the authorities cited in the majority opinion, or by personal research in the statute law of this State, the Maryland Rules or authorities elsewhere that warrants such a drastic change in the long recognized *507results of making a motion for a directed verdict. It is not difficult to foresee many of the dilemmas that will confront litigants and trial counsel in the future.
It may be stated here that the ruling to be suggested later would work no hardship upon, nor forfeit any of the rights, of Sudbrook in relation to her potential right to contribution from National. All that she probably was required to do in this case to protect herself was to object seasonably to the granting of National’s motion for a directed verdict (which she did) and then to note an appeal (which she did not do). This would be certain had Sudbrook filed a cross-claim against National, objected to the granting of the directed verdict and then noted an appeal.
The majority opinion laboriously descants with quotations from the Restatement of the Law. I am in full accord with the principles enunciated by the Restatement, but, after a careful reading of all of the sections named, I fail to discover their applicability to the facts of this case. It seems significant that while the Restatement has been published for quite a number of years, there is not a single reference in the opinion to any case from anywhere that has applied the quoted principles to a factual situation such as the one involved herein.
I shall not attempt to analyse fully all of the quotations from the Restatement. The principal ones are contained in foot-note 3. Even a casual reading of the same shows that they are explicitly predicated and conditioned upon the fact that a “consensual relation” existed between the parties, one of whom is seeking contribution. As stated in the majority opinion, Restatement, Judgments, section 109, states it is based upon the principle of section 107 and operates under the same circumstances. Section 107 sets forth with certainty the circumstances under which it operates. It begins by saying: “In an action for indemnity between two persons * * (the present case is not one for indemnity), and continues, “Distinctions and limitations. The rule stated in this section deals with the effect of a judgment in an action * * * by a person injured by a tort upon a subsequent action between indemnitor and indemnitee for indemnity. * * * The rule stated in this Section applies only to subsequent actions for *508indemnity. It does not apply to other actions between the indemnitor and indemnitee even with reference to the same transaction or subject matter.” (Emphasis supplied). It is obvious that these sections are intended to apply only to subsequent suits between indemnitor and indemnitee where the indemnitee has derived his right to indemnity or contribution as the result of a consensual relation between the parties. The majority ruling, however, is broad enough to include utter and complete strangers, such as defendants in a multicar collision who have never seen each other before, and between whom there has never been a consensual relation.
The majority opinion cites Maryland Rules 315 e 3, and 605 d, as partial authority for the ruling. Rule 315 e 3, had no application to situations such as here involved prior to the filing of the opinion. It applied to third party practice. National was not impleaded as a third party defendant, nor was a cross-claim filed by Sudbrook against National. Rule 605 d, may or may not apply later, but it has no bearing on the question that has been decided by the majority of the Court. Also the majority opinion fails to discuss or analyse any citation of authority by the appellees on the reargument.
Having been somewhat critical of the majority ruling, it behooves me to set forth how I think the case should have been decided, which I shall now do.
While the facts of the case present a rather unusual situation (the plaintiff below being the only appellant), the text writers and cases have dealt with the same principles that are here involved. In Vol. 1, Freeman on Judgments, sec. 412, we find the following pertinent statement:
“The fact that a person was a party to an action in its earlier stages does not bind him by the judgment, unless he was also a party tvhen it was rendered. If he, by permission of the court, withdraws from the action or is dismissed from it, so that he is no longer a party, then the power of the court over him terminates, and a judgment subsequently entered cannot affect his interests, though he may be bound by it as to his codefendants, whom he was *509bound to indemnify. Persons as to whom a nonsuit was granted before a judgment on the merits was rendered are not concluded by it; neither can they claim the benefit of it.” (Emphasis supplied.) 1
The facts in the case of Pinnix v. Griffin (N. C.), 20 S. E. 2d 366, are strikingly similar to those in the present case. The plaintiff, Pinnix, sued C. D. Griffin and the Gate City Life Insurance Company (Company) for the alleged wrongful injury and death of the plaintiff’s intestate, when he was struck by an automobile owned and driven by the first named defendant, who was employed by the other named defendant. On the first trial, there was a judgment of nonsuit as to the corporate defendant rendered at the conclusion of the plaintiff’s evidence, and a verdict was found, and judgment entered, against Griffin. The plaintiff appealed the judgment of nonsuit, and the Supreme Court of North Carolina reversed. When the case again came on for trial, the Court submitted to the jury all of the issues presented at the first trial: negligence; master and servant; contributory negligence; and damages. The defendant, Company, offered a prayer that would have instructed the jury that they, in no event, could award damages in excess of those given against Griffin in the first trial. This prayer was refused. The Supreme Court held that the submission of the issues to the jury was correct, but the failure to grant the defendant’s prayer *510was reversible error. During the course of its opinion, the Court said:
“When the trial court sustained the motion of non-suit as to the appellant in the first trial it had no connection with the subsequent proceedings of the court. It had no opportunity to be heard on the issues presented and its rights are not decided by the verdict. Therefore, it is not estopped by the judgment from undertaking to minimize the damages and to contest the amount to be awarded.”
A case decided by the Supreme Court of the United States, George A. Fuller Co. v. Otis Elevator Co., 245 U. S. 489, also, illustrates the point under consideration. Suit was brought by the petitioner to recover indemnity for a judgment that it had to pay in pursuance of the decision in George A. Fuller Co. v. McCloskey, 228 U. S. 194. McCloskey, the plaintiff in the former suit, was injured upon an elevator through the negligence of one Locke, the man in charge of it. He was at work for the Mackay Company, which was doing some painting under a subcontract with the defendant, the petitioner, which, it was held, as between the parties then concerned, made the defendant answerable for Locke. The petitioner had constructed an office building under an agreement with the owner, Hibbs. The Otis Elevator Company had put in the elevators, also under an agreement with Hibbs, and furnished the man Locke upon a somewhat vague understanding with the petitioner, which, the latter contends, left Locke the servant of the Elevator Company as between the parties in the present case. The Elevator Company had been joined as a party defendant in the first suit, but a verdict in its favor had been directed by the court below. The Supreme Court observed that if the Fuller Company were right in its contention that the primary duty rested on the Elevator Company, it (Fuller Company) could recover in this second suit, unless the former proceedings constituted a bar.
At the trial in the court below, there was evidence sufficient to show that the Elevator Company retained its control at the time of the accident, and the jury found a verdict for *511the plaintiff, but the judgment was set aside by the Court of Appeals on the ground that although the former judgment did not make the matter res judicata it concluded the case: “In- view of the adjudicated facts, which were not open to the consideration of a second jury, there was no such primary liability on the part of the Otis Company as will support an action for indemnity.” The Supreme Court reversed the Court of Appeals and, in doing so, said:
“But there were no facts, whether adjudicated in the former case or not, that were not open to the consideration of the jury in this. The Otis Company was joined as a party defendant, it is true, in the former action, and a verdict was directed in its favor. But even if the former verdict against the petitioner had gone on the same issue that was tried in the present case, which was not the fact, it could not have concluded the petitioner in favor of the Otis Company, for the reason, if for no other, that the Otis Company was dismissed from the suit before the petitioner’s evidence was heard.” 2 (Italics supplied.)
I think the authorities cited, justice, and reason impel a ruling that the amount of damages (except as to the ceiling, which will be mentioned later) is not res judicata. When National’s motion for a directed verdict was granted, it could no longer participate in the trial. It had no right to offer evidence or prayers, to participate in the argument to the jury, or to file a motion for a new trial or a remittitur. Under these circumstances, it is inherently unfair to, and places an undue burden upon, a litigant to require that he forego a request for a directed verdict, or suffer all of the possible consequences. If he fails to make the motion, he may find himself in the position of having an unjustified jury verdict *512against him. On the other hand, if he makes the motion and it be granted, his codefendant or codefendants may not have properly prepared the case for presentation, or being financially irresponsible, they may have little interest in its outcome. . I would, therefore, hold that the issue as to the amount of damages suffered by the plaintiff, for which National may be responsible, should be submitted to the jury at the new trial. Cf. Brotman v. McNamara, 181 Md. 224, 233, 29 A. 2d 264, wherein former Chief Judges Bond and Mar-bury advocated a new trial on all issues against all defendants, where one of the defendants had taken the appeal. It may be noted Chief Judge Marbury sat in the E. Coast Lines case, supra, but failed to dissent.
In the case of E. Coast Lines v. M. & C. C. of Baltimore, 190 Md. 256, previously mentioned, tort actions against two defendants were involved, E. Coast Lines, the original defendant, having interpleaded Baltimore City as a third party defendant. After verdicts were directed in favor of the City, judgments were rendered against the other defendant. This latter defendant settled the judgments and received a release, reserving its right to contribution against the City. The plaintiffs and B. Coast Lines appealed from the judgments in favor of the City; and these judgments, based upon directed verdicts, were reversed and a new trial awarded. This Court held that the defendant, who had settled the judgments, was entitled to contribution, if the jury on the new trial rendered a verdict against the City because of its negligence; and directed that this question be submitted in the form of a special verdict, and, if the jury did render such a verdict, the trial court should enter a judgment of contribution for one-half of the amount of settlement. This action did not leave open the amount of damages on the new trial. However, this question was neither raised nor argued. A reading of the briefs in the case discloses no complaint as to the size of the judgments rendered by the first jury, nor any request, that, in the event of a reversal, the City be afforded an opportunity to minimize the damages. Clearly, the real issue between E. Coast Lines and Baltimore City was the negligence, vel non, of the City, and both parties were willing to have their rights *513settled by a determination of that issue. 1 find no ruling in that case that is in conflict with any suggested herein.
What I have said above concerning the issue of the amount of damages in this case, ordinarily, would also apply to the issue of negligence. But here the negligence of Ogle, for all practical purposes, is conceded, although this will not be the case in many future trials. Ogle testified that he ran his truck over to his left-hand side of the road and collided with the bus operated by Keitz; and that Keitz did nothing that was careless or negligent. National does not contend that it has testimony to refute Ogle’s. Under these circumstances, I think it would be futile to require the jury again to pass upon Ogle’s negligence.
There is one further matter that should be considered. Is the amount of the verdict rendered by the first jury a ceiling to limit the amount of a possible verdict against National on the new trial? Although it involves an apparent violation of the doctrine of mutuality of estoppel, the rule is general and well settled that where the liability, if any, of a principal or master to a third person is purely derivative and dependent entirely on the principle of respondeat superior, as it is in this case, a judgment on the merits in favor of the agent or servant, or even a judgment against him, in so far as it fixes the maximum limit of liability, is res judicata in favor of the principal or master, though he was not a party to the action.3 35 Am. Jur. Supp., Master and Servant, Sec. 591; Annos., 112 A. L. R. 405, 141 A. L. R. 1169; Rest. of the Law, Judgments, sec. 96 (b), and Ill. (3); 1 Freeman, Judgments, 1031; Pinnix v. Griffin, supra.
I would hold that if the jury determines at the new trial that Ogle was acting as National’s servant at the time of the collision, the amount of their verdict should not exceed the amount of the verdict rendered at the first trial.
Summarizing, at the new trial I think the issues to be submitted to the jury should be: (1), Was Ogle acting as the *514servant of National at the time of the accident?; and (2), If so, what is the amount of money, not to exceed $70,000, that the plaintiff is entitled to recover against National, as a result of the injuries sustained by the plaintiff?
. The majority opinion makes no reference to this important section of Freeman, Judgments, or the citations thereunder, but refers to certain broad general principles in sections 444 to 450, inclusive. The limitations to these broad principles are enumerated in section 448, where we find: “The judgment is binding on the covenantor, indemnitor or person liable over because his * * * relation to the indemnitee is such as to impose upon him the legal obligation to defend, assuming an adequate opportunity is given him to do so. It would seem therefore that the rule [enunciated in the majority opinion] extends only to those cases wherein such an obligation to defend arises. * * * A Third party cannot be called upon to defend an action, where his showing himself not to be liable will not necessarily result in a judgment in favor of the party asking him to defend.” This is exactly the case of Sudbrook and National in the case at bar.
. Other cases agree. See Watts v. Lefler (N. C.), 140 S. E. 435; Continental Ins. Co. v. Seaboard Air Line Ry. (S. C.), 90 S. E. 318; Cadsden v. Crafts (N. C.), 95 S. E. 610. Cf. Hackett v. Hyson (R. I.), 48 A. 3d 353.
. No opinion is expressed concerning this rule, in so far as it relates to punitive damages. Anno. 141 A. L. R. 1171. Cf. Nance v. Gall, 187 Md. 656, 50 A. 2d 120.