(concurring).
ON MOTION FOR REHEARING
I concur in affirmance of the judgment for the reasons stated in this opinion. In my view, some of the contentions of the parties merit additional consideration and discussion.
The question for decision is as follows: May appellants maintain a second action against the servant for the same injuries resulting from the same collision after they have successfully prosecuted the same cause of action against the master based upon re-spondeat superior and have recovered a final judgment in the former action, the full payment of which has been legally tendered to appellants but refused by them ?
I believe that such question is correctly answered in the negative. I base my af-firmance of the judgment solely on the grounds that appellants have made an election of remedies which the record establishes to have been completed and that, in effect, there has been legal satisfaction of appellants’ judgment against the master. Appellants elected to first pursue their cause of action against the master. They have obtained a final judgment for their damages and could have full payment thereof. I believe that a collectible judgment in this situation completes the election made by appellants and bars a second suit against the servant. This appears to me to be the basic and controlling holding in the case of McNamara v. Chapman, 1923, 81 N.H. 169, 123 A. 229, 31 A.L.R. 188, which I believe to be highly persuasive on the question presented here, which has not been squarely decided by our Texas Courts.
One of the most significant factors here is that appellants have recovered a collectible judgment. In the case of Granquist v. Crystal Springs Lumber Co., 1941, 190 Miss. 572, 1 So.2d 216, the court placed emphasis upon such factor and cited McNamara with approval in holding that a collectible prior judgment against the servant bars a second suit against the master for the identical injury.
However, if the record did not show that appellants had reduced their cause of action to a collectible judgment, I would hold that the second action against the servant is not barred. In my view, a plaintiff is not finally bound by an uncollectible judgment against the master, but may, in such event, pursue his cause of action against the servant who is also liable to him-. The plaintiff’s election to first recover judgment against the master is not complete until satisfaction or its equivalent is had. But where, as here, full payment of the judgment in the prior action has been legally tendered, I would hold that the remedy elected by appellants has been completed and satisfaction has been had so as to bar the second suit against the servant.
*244I agree with appellee’s position that here the master and servant are not joint tort-feasors. It is important to observe the distinction between persons who are true joint tort-feasors, on the one hand, ajid those who may be held liable jointly or severally under the doctrine of respondeat superior, on the other. Where, as here, the master has not independently participated in the tort, he is liable only derivatively while the servant is liable directly to the plaintiffs. The liability of the master for the tort of the servant is not a contested issue in this case.
Appellants cite as the Texas cases most analogous to the instant suit Pearson v. Jacobs, Tex.Civ.App., 293 S.W.2d 543 (1956, wr. ref., n. r. e.) and Hunt v. Ziegler, Tex.Civ.App., 271 S.W. 936 (1925, affirmed Tex.Com.App., 280 S.W. 546, 1926). In Pearson v. Jacobs, supra, the plaintiff filed a second suit against the servant after first having recovered judgment and payment thereof from the master. The trial court dismissed the second suit against the servant after ascertaining that the first judgment had been paid. The Court of Civil Appeals affirmed on three grounds: (1) That where there has been a judgment against one of two or more joint tort-feasors, followed by an acceptance of satisfaction, all other tort-feasors are thereby released, and the judgment and satisfaction may be successfully pleaded by them to the maintenance of the same or another suit by the same plaintiff involving the same cause of action, citing Hunt v. Ziegler, supra; (2) That since the second suit was solely for exemplary damages based upon alleged gross negligence of the servant, there can be no recovery of such exemplary damages in the absence of a recovery of actual damages therein; and (3) That the law does not permit the recovery of actual damages against the principal and only exemplary damages against the agent. In my view, the Court incorrectly referred to the master and servant as joint tort-feas-ors. However, the judgment affirming the dismissal by the trial court was still correctly premised upon the other two stated grounds, and, in my opinion, would also have been correctly based upon the first ground if the court had referred to the master and servant as being jointly liable, instead of designating them as joint tort-feasors.
In Hunt v. Ziegler, supra, the plaintiffs sued the servant after having first filed suit against his master under the doctrine of respondeat superior, had settled their case with Court approval and accepted payment of the judgment. The writ of error was granted upon a practice question which was discussed by the Commission of Appeals and the opinion of the Court of Civil Appeals was approved on the merits of the case. Hence, the discussion here will be in terms of the opinion of the Court of Civil Appeals. The second suit against the servant was based upon the theory that the plaintiffs were damaged far in excess of the amount awarded by the judgment and collected from the master, and that they were entitled to recover an additional amount against the servant after allowing credit for the amount theretofore paid by the master. The trial court, based upon a jury verdict, rendered judgment in favor of plaintiffs for such additional amount. The Court of Civil Appeals reversed and rendered judgment that plaintiffs take nothing, holding that the second action against the servant was barred. The Court recognized the rule that “where there has been a judgment against one or two or more joint tort-feasors, followed by an acceptance of satisfaction, all other tort-feasors are thereby released, and the judgment and satisfaction may be successfully pleaded by them to the maintenance of- the same or another suit by the same plaintiff involving the same cause of action.” The plaintiffs contended that such rule was applicable only to joint tort-feasors and not to other wrongdoers such as the master and the servant in that transaction; that the master, if liable at all, was only constructively or “secondarily” so, while the servant was the active and only wrongdoer, and *245the master could have exacted contribution, even full indemnity, of the servant. At pages 938-939 of the opinion, the Court said:
“These contentions, if correct, do not occur to us to furnish any reason for excluding the principle stated from application to the case presented here. The distinction sought to be drawn is purely superficial; it has no effect whatever upon the essential and controlling element of identity of causes of action.
“The rule is applied to joint tort-feasors because of the fundamental fact that there is but a single injury in itself and of itself indivisible, and constituting an indivisible cause of action, for which both in law and good conscience there can be but one satisfaction; and when that satisfaction is made by one of the joint tort-feasors, or by any person (Lovejoy v. Murray, 3 Wall. 1, 18 L.Ed. 129), it has the effect of releasing all others who may be jointly, or jointly and severally liable.
“So, in the case at bar, the situation is in principle precisely the same. The Glass Company, the master, if liable at all, was constructively so because of its responsibility for the act of Hunt, its servant; and if the latter was liable, he was so because of his individual responsibility for the identical act. Both were tort-feasors, and whether jointly liable or not appellees had a cause of action against them, severally, it is true, but only upon one cause of action, and it was an indivisible one. Upon that cause of action appellees might have sued both tort-feasors in the same action, and recovered a joint and several judgment against them, but the amount could not have been apportioned between them, for the very obvious reason that the cause of action was single and indivisible. Or appellees might have maintained a suit against each of the tort-feasors at the same time, and even prosecuted each to judgment, but in such case the satisfaction of one judgment would surely have had the effect of releasing the other. Here the aggrieved parties successfully prosecuted their single cause of action against one of the tort-feasors, and received and accepted satisfaction in full of the judgment. That was satisfaction for the entire injury, for the single cause of action, and although it moved from only one of the wrongdoers, no foundation remained for any claim against the other. The cause of action was extinguished. We think the authorities are as one in support of this holding.” (Citing many authorities.)
It should be noted in Hunt v. Ziegler, while the court first discussed the rule concerning joint tort-feasors, that the master and servant were referred to as only “tort-feasors” and in holding the second suit against the servant barred by the judgment and payment in the first suit the court continued to describe them as “tort-feasors” rather than “joint tort-feasors”.
When we consider that the master and servant are not joint tort-feasors, although some cases have incorrectly so referred to them, I believe that, by analogy, the cases of Pearson v. Jacobs, supra, and Hunt v. Ziegler, are favorable to appellee rather than appellants.
Another case relied on by appellants is Sherwood v. Huber & Huber Motor Exp. Co., 1941, 286 Ky. 775, 151 S.W.2d 1007, 135 A.L.R. 263. In that case the plaintiff first sued the servant for injuries in an automobile collision and recovered a judgment. Execution was issued and returned “no property found” Thereafter, the plaintiff filed suit against the master. The trial court overruled a demurrer filed by plaintiff directed to a plea urged by the master that plaintiff had made an election by first pursuing her cause of action against the servant and that the second suit was barred. The Court of Appeals reversed with directions to sustain the demurrer. Relying principally upon equitable principles, the appellate court held, in sub*246stance, that a final judgment in the prior action which could not be satisfied through execution or otherwise amounted to no judgment at all, and would not bar the second action against the master. In Sherwood, the court did not hold that in the case of master and servant the plaintiff could pursue her cause of action against the servant and later against the master if a legal tender of the amount of the first judgment had been made. The Court also did not hold that the plaintiff could have refused to accept payment of the first judgment and still assert a cause of action in a later suit against the master. It is evident that by the word “satisfaction” the Court meant “payment” or “collection”. At page 1012 of the opinion, the Court said:
“We conclude from the foregoing and from reason that the election is not complete so as to create a bar to a later separate action against another who is also liable to the plaintiff for the same cause of action until satisfaction has been made by someone or more of those whom the law makes responsible for the damages sustained.”
I do not believe that Sherwood is authority for appellants’ position here, and it appears to me that had the judgment debtor in the first suit made a valid legal tender of the amount of the judgment, the Court would have ruled differently.
Appellants also rely upon rules announced in the Restatement of the Law .of Torts, Judgments and Restitution. Some of the statements and comments plainly apply only to true joint tort-feasors. Other general statements appear to support appellants’ position that the instant suit is not barred. However, I do not find in these statements or comments any specific and flat rejection of appellee’s position here that where an election is made by a plaintiff to first recover' judgment against the master for a tort committed by the servant for which the master is only derivatively liable, and full payment is legally tendered by the master, that the election is completed and is a bar to a second suit against the servant on the same cause of action. If the rules announced in Restatement of the Law can properly be specifically construed against appellee’s stated position, then I do not believe that they are supported by analogous Texas decisions nor by the weight of authority elsewhere.
I also do not agree with appellants’ contention that the judgment against the master has not been satisfied. The appellee not only tendered full payment of the judgment to the district clerk and made him an agent for the purpose of paying appellants but, in addition, made a legal tender in cash. In my view, this is the equivalent of satisfaction of the judgment The judgment debtor did everything he was required to do to satisfy it; and he was entitled to have the judgment against him discharged. When appellants elected to first pursue their cause of action against the master, in my view, this included the obligation to accept payment of it, certainly, where it was promptly made as in this case, and before the second suit against the servant was brought to trial.
While I agree with appellee that appellants’ election to first recover judgment against the master coupled with the legal tender of payment constitute a bar to the second suit against the servant, I would not rest affirmance of the judgment upon ap-pellee’s contentions as to res judicata or collateral estoppel.
It has been held that within the purview of res judicata the servant is not in privity with the master. Maryland Casualty Co. v. Morris, 1939, Tex.Civ.App., 128 S.W.2d 86 (n. w. h.); 34 Tex.Jur.2d, Judgments, § 418, page 463. The rule as to persons who may be in privity with actual parties to a suit is stated in the case of Cain v. Balcom, 130 Tex. 497, 109 S.W.2d 1044 (1937), as follows: . “Privity, in this connection, means the mutual or successive relationship to the same rights of property; that is to say, all persons are privy to a judgment whose succession to the rights of property *247therein adjudicated are derived through or under one or the other of the parties to the action, and which accrued subsequent to the commencement of the action.” The prior action here was brought solely against the master. In my view, appellee, the servant, was not in privity with the master in so far as the first suit was concerned under the rules laid down by the above-cited cases. Because appellee was not actually a party to the first suit and was not in privity with the master who was sued therein, he would not be protected from the second suit under either res judicata or collateral estoppel. These subjects are discussed in the cases of Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526 (1930); Grimes v. Maynard, 1954, Tex.Civ.App., 270 S.W.2d 282 (writ ref.); Ray v. Chisum, 1953, Tex.Civ.App., 260 S.W.2d 118 (wr. ref., n. r. e.); 34 Tex.Jur.2d Judgments, § 450, pages 490-492. McNamara v. Chapman, supra, heavily relied upon by appellee, recognizes that had the judgment against the master proved uncollectible, the subsequent suit against the servant might not have been barred.
Both parties recognize the rule that where the liability of a defendant is derivative (such as that of a master under respondeat superior), a judgment in favor of the party from whom the liability is derived (such as a servant who has committed a tort while in the scope of his employment), may be set up as a defense, even though the defendant in the latter suit was not a party to the first action. See Siratt v. City of River Oaks, 1957, Tex.Civ.App., 305 S.W.2d 207 (wr. ref.); Eastland County v. Davisson, 1929, Tex.Com.App., 13 S.W.2d 673, affirming Tex.Civ.App., 6 S.W.2d 782; Stafford v. Lawyers’ Lloyd of Texas, 1943, Tex.Civ.App., 175 S.W.2d 461 (n. w. h.); Allstate Insurance Company v. Brown, 1956, Tex.Civ.App., 289 S.W.2d 300 (n. w. h.). This is not such a case, because the master here was held liable to plaintiffs in the first suit based upon the tortious conduct of his servant.
It is the public policy of this state to avoid a multiplicity of suits. 1 Tex.Jur.2d, Actions, § 45, pp. 555-556. In my view, the instant suit against the servant should be and is barred because of the election made by plaintiffs to first recover judgment and payment thereof from the master, and when a legal tender of full payment was made by him, as is shown here, the election became complete. The judgment should be held to be legally satisfied and plaintiffs’ cause of action extinguished.
My original concurring opinion herein is withdrawn and this opinion, on motion for rehearing, is substituted therefor.