George B. GRIFFIN
v.
Beatrice McBRAYER.
No. 94.
Supreme Court of North Carolina.
February 24, 1960.*749 E. L. Loftin, Asheville, for plaintiff appellee.
Don C. Young and Pangle, Garrison & Sams, Asheville, for defendant appellant.
RODMAN, Justice.
The appeal presents this question: Is an unsatisfied judgment against a servant or a partner a bar to another action against the master or the other partner based on the tortious conduct alleged in the prior action? The answer is succinctly stated in Thompson v. Lassiter, 246 N.C. 34, 97 S.E.2d 492, 496. Denny, J., said: "* * * where the doctrine of respondeat superior is or may be invoked, the injured party may sue the agent or servant alone, and if a judgment is obtained against the agent or servant and such judgment is not satisfied, the injured party may bring an action against the principal or master." A similar conclusion was reached in an action against a partner, Davis v. Sanderlin, 119 N.C. 84, 25 S.E. 815. The rule has been so stated in several of our prior decisions. McFarlane v. North Carolina Wildlife Resources Com., 244 N.C. 385, 93 S.E.2d 557; Pinnix v. Griffin, 221 N.C. 348, 20 S.E.2d 366, 141 A.L.R. 1164; Leary v. Virginia-Carolina Joint Stock Land Bank, 215 N.C. 501, 2 S.E.2d 570. Our application of the law accords with authoritative decisions elsewhere. Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111, 32 S. Ct. 641, 56 L. Ed. 1009; Verhoeks v. Gillivan, 244 Mich. 367, 221 N.W. 287, 65 A.L.R. 1083; Dillard v. McKnight, 34 Cal. 2d 209, 209 P.2d 387, 11 A.L.R. 2d 835, and notes; 50 C.J.S. Judgments §§ 636 & 760, pp. 71 & 284; 52 A.J. 464.
The answer given to the question here presented in no way conflicts with the conclusion reached in Crosland-Cullen Co. v. Crosland, 249 N.C. 167, 105 S.E.2d 655, or Dillingham v. Gardner, 222 N.C. 79, 21 S.E.2d 898, as urged by defendant. Liability was imposed on C. F. McBrayer in the prior action for his negligent failure to confine the cattle. The question of defendant's responsibility for the acts of C. F. McBrayer has not heretofore been considered. Plaintiff's allegations, if found to be true, would impose liability on her for *750 the negligence of her agent or partner. Until the factual controversy with respect to agency or partnership has been resolved, defendant's liability cannot be determined. The distinction between the two types of cases is clearly pointed out in Leary v. Virginia-Carolina Joint Stock Land Bank, supra.
While the facts alleged are not sufficient to defeat plaintiff's claim, it does not follow that the court was correct in deleting the allegations. If C. F. McBrayer was defendant's agent or partner, as alleged, the judgment against him fixes the maximum verdict which plaintiff could obtain in this action. It is in effect a limitation of liability. Thompson v. Lassiter, supra, and cases cited. To have the benefit of this limitation of liability, it was necessary to plead the prior judgment. Gibson v. Gordon, 213 N.C. 666, 197 S.E. 135; Blackwell v. Dibbrell, 103 N.C. 270, 9 S.E. 192. The court erroneously ordered the allegations stricken.
Modified and affirmed.