The plaintiff assigns as error the order of the court sustaining Allen and Cottle’s plea in bar upon the ground the issues of. negligence and contributory negligence presently involved had been determined by the judgment of the Superior Court of Alamance County in a civil action by Dalrymple, Administrator v. Gunter, Allen and Cottle. At the outset this Court is confronted with the procedural question whether upon the pleadings, including the judgment roll in the Alamance action, enough appears to warrant the Court in passing upon the plea in bar (res judicata) or should decision be reserved until evidence is heard?
In the action now before us Gunter alleged: “11. That the joint and concurring negligence of all the defendants was the sole proximate cause of the collision herein described and of the resulting injuries and damages to this plaintiff.” In the Dalrymple case the plaintiff’s intestate, (Miss Jones) a passenger in Gunter’s Ford, was killed. Her administrator alleged Allen and Cottle were negligent in that they (1) failed to keep a proper lookout, (2) failed to keep their vehicle under proper control, (3) failed to observe the speed law, *785 and by reason thereof they negligently ran into the Gunter vehicle from the rear; and that after the impact Gunter negligently drove his vehicle from the north traffic lane across the center line into the southern traffic lane where it collided with the tractor-trailer unit owned by Miller Express, Inc., and driven by Efrid.
In the
Dalrymple
case separate negligent acts were alleged against Allen and Cottle in striking the Gunter vehicle from the rear. Separate negligent acts taking place thereafter were alleged against Gunter in negligently driving his Ford across the center line of the highway and into the traffic lane of the Miller tractor-trailer. Dalrymple alleged: “That the wreck, injury and death herein complained of directly and proximately resulted from the negligence of the defendants as
herein set forth;
and that the defendants are jointly and severally liable and responsible to the plaintiff for the resulting damages.” It may be noted that the joint and several liability for damages is alleged as a conclusion. The bases for the conclusion are the separate and successive negligent acts set forth — that is, the negligence of Allen and Cottle in striking the rear of Gunter’s Ford and thereafter the negligence of Gunter in carelessly operating his vehicle from its proper north lane of traffic into the south lane in front of the Miller tractor-trailer. Issues were submitted as follows: “(1) Was the death of Viola D. Jones caused by the negligence of Billy Ray Allen and Oran J. Cottle, as alleged in the complaint? Answer, Yes. (2) Was the death of Viola D. Jones caused by the negligence of Wesley Calvin Gunter, as alleged in the complaint? Answer, Yes.” Thus, on the face of the record the allegations and the issues in
Dal-rymple
do not establish joint and concurrent acts of negligence of Gunter on the one hand, and Allen and Cottle on the other. Does the record disclose the presence of all conditions necessary to establish a valid plea of
res judicata?
“Certainty with respect to the thing determined is one of the fundamentals of every trial; and when the result of that trial is pleaded as
res judicata
in a subsequent proceeding, it cannot be left to uncertain inference. This is sometimes expressed in the rule that the doctrine of
res judicata
must be strictly applied.
Horn v. Indianapolis Nat. Bank,
“It is well settled that a verdict must be interpreted with reference to the pleadings, the evidence, and the judge’s charge.
Jernigam v.
*786
Jernigan,
The allegations and findings in Dalrymple do not, on their face, establish (as the cause of the accident) the joint and concurrent negligent acts of Gunter (present plaintiff) and Allen and Cottle (present defendants). The record, therefore, is insufficient to sustain the plea of res judicata.
Although we note the procedural defect, we have come to the conclusion that the judgment in this case should be reversed on the more fundamental ground that a judgment against two or more defendants in a tort action should not be held conclusive
inter se,
unless their rights and liabilities were put in issue by their pleadings. The great weight of authority sustains this view. The substance of the general rule, as gathered by the decisions and the text writers, is this: A judgment does not conclude parties to the action who are not adversaries and who do not have opportunity to litigate their differences
inter se.
“It is generally declared that a judgment operates as
res judicata
only with respect to parties who were adversaries in the proceedings wherein the judgment was entered . . . The theory of the many decisions supporting the general rule is that the judgment merely adjudicates the rights of the plaintiff as against each defendant, and leaves unadjudicated the rights of the defendants among themselves.” 30 A, Am. Jur., “Judgments,” § 411;
Clark’s Admrx. v. Rucker
(Ky.)
This decision is in partial conflict with
Lumberton Coach Co. v. Stone,
Reversed.