Jаrib M. Sanderson, Sr. brought this action to recover damages from Hazel G. Balfour for personal injuries sustained in an automobile accident which occurred on December 23,1963.
Sanderson was operating a tractor which collided with a car owned by Raymond Balfour parked on the highway. The Balfour car had been parked on the highway by Hazel Balfour bailee of her husband Raymоnd’s car.
Raymond Balfour had previously brought suit against Sanderson for property damage to his car arising out of this accident. Sanderson at that time brought a cross action for personal injuries sustained in the accident. These cases were tried before a master, who returned а verdict for the defendant in the case of Sanderson as plaintiff and gave a verdict for thе plaintiff in the action against Sanderson. The master specifically found that Sanderson was negligent and that his negligence was the proximate cause of the accident. These cases went to judgment the first Tuesday of November 1966 and the present action was commenced June 23, 1967.
The defendant Hazel Balfour filed a motion to dismiss setting forth in detail the foregoing record and аsserting that the present action was barred by res judicata or collateral estopрel. The motion to dismiss was denied by the Trial Court {Leahy, G. J.) who reserved and transferred the defendant’s excеption.
The defendant argues that the plaintiff is barred by res judicata and that he is estoppеd from maintaining the present action because the plaintiff’s negligence was determined аdversely to him in the prior litigation.
If the determination of the issue of the plaintiff’s negligence in the prior action is binding upon him in this action then he may not recover and the motion to dismiss should have been granted. The objection to the granting of the motion lies in the accepted rule that res judicata may be asserted only by a person who was either a party or in privity with a party to the prior action. This in turn is based upon the doctrine of mutuality of estoppel; that is, that a party should not be able to plead res judicata of an issue unless the other party could hаve pleaded it against him had the prior verdict been the other way. Restatement, Judgments, s. 93, comment d, ill. 7; 50 C.J.S., Judgments, s. 765.
While the precise question raised in this case has not been *215 prеviously ruled on by this court, the Trial Court’s ruling was in accord with long acceptance of the neсessity of mutuality in our cases. Lord v. Locke, 62 N. H. 566; Parker v. Moore, 59 N. H. 454. The ancient and honorable lineage of the doctrine of mutuality of estoppel should not however prevent its re-exam-in ation.
Enforcement of the rulе of mutuality has always been extended to parties in privity with the original party. Restatement, Judgments, s. 83; Hubley v. Goodwin, 91 N. H. 200. Grаdually exceptions have grown up where there was no privity which would entitle the person аsserting the defense to its benefits, i.e., employer - employee relationship. McNamara v. Chapman, 81 N. H. 169; Thirty Pines, Inc. v. Bersaw, 92 N. H. 69.
Criticism of the doctrine of mutuality has not been lacking. Over a cеntury ago Jeremy Bentham condemned it and suggested that it owed more for its acceptance to the gaming table than reason. 7 Bentham’s Works (Bowring’s ed. 1843) 171. While it was still universally accepted it was сriticized in Comment, 35 Yale L. J. 607 (1925); Note: 29 Ill. L. Rev. 93 (1934); Note, 12 Corn. L. Q, 92 (1926); Note, 18 N.Y.U.L. Rev. 565 (1941).
In 1942 Justice
Traynor
in the case of
Bernhard
v.
Bank of America,
The Bernhard case laid down the following test to determine whether the plaintiff was barred: “Was the issue decided in the prior adjudication identical with the оne presented in the action in question? Was there a final judgment on the merits? Was the party agаinst whom the plea is asserted a party or in privity with a party to the prior adjudication?” Bernhard v. Bank of America, supra, 813.
The
Bernhard
decision initially caused hardly a ripple in the
*216
sea of mutuality. In the quarter of a century that has passed since
Bernhard
its acceptance has bеen limited, but some commentators and courts have now embraced its reasoning. Currie, Civil Procedure: The Tempest Brews, 53 Cal. L. Rev. 25 (1965);
People
v.
Ohio Cas. Ins. Co.,
The absence of mutuality may not be used to permit the plaintiff in this case to maintain his action. The decisions in this state, in the final analysis, have always turned on whether there hаd been a full and fair opportunity to the party estopped to litigate the issue barring him and whеre there had not been he was afforded relief even though the parties were the samе. Perry v. Faulkner, 98 N. H. 474. Where the issues were not the same the fact that the parties were the same has beеn considered immaterial. Lovejoy v. Ashworth, 94 N. H. 8; Laconia Nat. Bank v. Lavallee, 96 N. H. 353; Ainsworth v. Claremont, 108 N. H. 55.
The plaintiff here had a full and fair opportunity to litigate the issue; he did litigate it and lost; public policy and reason both dictate that he be bound by that loss.
Defendant's exception sustained.