Defendant’s pleas in bar of
res judicata (Sanderson v. Ins. Co.,
■ When a former judgment is set up as a bar or estoppel, the question is whether the former adjudication was on the merits of the action, and whether there is such аn identity of the parties and of the subject matter in the two actions, and whether the merits of the second action are identically the same, as will support a plea of
res judicata. Hayes v. Ricard,
Generally, the plea of
res judicata
cannot be determined) from the pleadings alone.
Pemberton v. Lewis,
When, as here, the facts constituting the pleas in bar of
res judicata
and estoppel 'by judgment are shown on the fаce of the defendant’s pleadings, the sufficiency of .such pleas may be tested by demurrer or motion to strike. G.S. 1-141; G.S. 1-126;
Williams v. Hospital Ass’n.,
The demurrer and motion to strike defendant’s pleas in bar present squarely for decision the .sufficiency of such pleas, because the demurrer, for the purpose, admits the truth of factual averments well-stated, and such relevant inferences as may be deduced therefrom, but not legal inferences or conclusions of law asserted by the pleader,
McKinney v. High Point,
On 10 November 1955, F. L. Taylor was operating a Cadillac automobile, owned' by the plaintiff here, Troy Lumber -Company, which was involved -in a collision with an automobile driven by defendant E. M. Hunt. The present action is to recover property damage to the *626 automobile allegedly caused by the actionable negligence of the defendant.
The ultimаte facts alleged in .the pleas in bar are: Troy Lumber Company is a closely held family corporation. At the time of the automobile collision between the automobile driven by F. L. Taylor and defendant’s automobile, F. L. Taylor was, and is now, the controlling stockholder of Troy Lumber Company, the chairman of its board of directors, its president, and has complete charge of its operations and business. Plaintiff instituted this action on 13 February 1956, and on thе same day in the Superior Court of Moore County F. L. Taylor instituted an action against the defendant Hunt .to recover damages for personal injuries sustained in the same automobile collision. F. L. Taylor employed counsеl, David H. Armstrong, to bring both actions and verified the complaint here as president of plaintiff. Mr. Armstrong at the time of filing the pleas in bar here, 16 May 1959, is still counsel for Troy Lumber Company and F. L. Taylor.
The allegations of negligence in pаragraphs 4, 5, 6 and 7 of the complaint here are identical with similar paragraphs in the 'complaint of F. L. Taylor against the same defendant.
In the action of F. L. Taylor against the defendant Hunt, Hunt answered, denying all allegations of negligence made against him in the complaint, pleading contributory negligence of F. L. Taylor, and setting up a counterclaim for damages to his person and property allegedly caused by the actionablе negligence of Taylor.
At the September 1957 Civil Term of the Superior Court of Moore County, the action of
F. L. Taylor and Lumbermen’s Mutual Casualty Co. v. E. M. Hunt
came on for trial before a judge and jury. Since Taylor had acceptеd compensation under the Workmen’s Compensation Act, the Casualty Company was made a party plaintiff.
Taylor v. Hunt,
F. L. Taylor has at all times since the institution of the present action had control of it, as he also had control of his action against E. M. Hunt.
*627 At the time of the automobile collision F. L. Taylor was operating the automobile of plaintiff in the course and scope of his employment, as president of plaintiff, and such injuries as he received were caused ■by the сollision arising out and in the course of his employment with plaintiff.
Is there an identity of parties, or privity among the parties, in this suit, and the suit of
F. L. Taylor
and
Lumbermen’s Mutual Casualty Co. v. Hunt,
within the rule requiring,
inter alia,
identity of parties to make a judgment in one proceeding
res judicata
in another? We think not. A corporation is an entity distinct from its shareholders, and the corporаte entity is distinct, although all of its stock is owned by a single individual or corporation. 13 Am. Jur., Corporations, Sec. 6. To the same effect N.C.G.S. 55-3.1. F. L. Taylor has only a contingent derivative right of succession of property interest, with the othеr stockholders, from the Troy Lumber Company so far as to the present suit for damages is concerned/. The admission that F. L. Taylor is the controlling stockholder of Troy Lumber Company, is chairman of its board of directors, its President, and has complete charge of its operations and business, is insufficient to establish identity or privity between him and the corporation for the purpose of
res judi-cata. Hornstein v. Kramer Bros. Freight Lines,
The subject matter of the two suits is different. Troy Lumber Company’s suit is for damages to its automobile. F. L. Taylor’s suit was for personal injuries to himself. Neither could assert their alleged damages in whole or in part for, or in the name of the other.
Queen City Coach Co. v. Burrell,
’ Since the essential elements of res judicata and estoppel by judgment are lacking, wе would affirm the judgment below on the authority of Queen City Coach Co. v. Burrell, supra, were it not for F. L. Taylor’s active participation in Troy Lumber Company’s suit, that he is its controlling stockholder, its chairman of its board/ of directors, *628 its president, has complete charge of its operations and business, and that he personally was driving the automobile involved in the collision which damaged the corporate property.
This Court said in
Light Co. v. Insurance Co.,
Plaintiff’s demurrer and motion to strike defendant’s pleas in bar admit, for the purpose of the hearing, that F. L. Taylor has at all times, since the institution of the two suits, had control of the instant case, and also his personal action. However, the pleas in bar contain no allеgation that Troy Lumber Company had anything at all to do with the action of F. L. Taylor and Lumberman’s Mutual Casualty Co. v. Hunt, and it is set forth in the pleas in bar that Troy Lumber Company has other shareholders than F. L. Taylor, and there is no allegation in the pleas in bar that these other shareholders had anything to do with Taylor’s action for damages for personal injuries, or that any officer or agent of the corporation had anything to do with his personal action except himself.
If the present аction had been tried first, and if F. L. Taylor had taken complete control of it, and continued such control until its final adjudication, would he be bound by the adjudication of litigated matters therein, as if he were a party, in the determination of the question as to whether Troy Lumber Company’s automobile was damaged by the actionable negligence of Hunt? The very recent case of Wolf v. Paving Supply & Equipment Company, supra, answers the question, No. However, we are not called upon to answer that question here.
The principle of law quoted from Light Co. v. Insurance Co., supra, *629 is not applicable to the Troy Lumber Company upon the facts alleged in the pleas in bar.
The facts in
Philadelphia-Auburn-Cord Co. v. Shockcor,
Hornstein v. Kramer Bros. Freight Lines, supra, is the converse of that case. The plaintiff Frank Hornstein, while driving an automobile owned by Hornstein, Inc., was injured in a collision with a trailer truck driven by Robert E. Wheeler, an employee оf Kramer Bros. Freight Lines, Inc. One Copping was the owner of the truck. Frank Hornstein sued Kramer Bros. Freight Lines, Inc., and Wheeler for personal injuries caused by the collision. Defendants filed a motion for summary judgment claiming that plaintiff’s action was res judicata. A stipulation between the parties stated that Horn-stein, Inc., sued Kramer Bros. Freight Lines, Inc., and Copping for damages to its automobile in the same collision. During the same term of court Copping sued Frank Hornstein for damаges to his truck. The oases were tried together, and the issues of the negligence of Wheeler and Hornstein submitted to a jury, which found against Hornstein, Inc., in its action, and in favor of Copping in his suit against Frank Hornstein. Judgment was entered aсcordingly. The ■stipulation further stated Frank Hornstein was the President, Treasurer and General Manager of Hornstein, Inc., and either as trustee or individual owner, he voted the overwhelming majority of its stock. The defendants contended thаt Frank Hornstein ‘and Hornstein, Inc., are substantially identical for the purpose of involving the doctrine of res judicata. The Court rejected the contention and following the decisions of the State of Pennsylvania, where the collision oсcurred, stated: “There is, therefore, out of the complexity of these three lawsuits nothin? to make the rules of res judicata applicable in the ease at bar
*630 The facts alleged in defendant’s pleas in bar are insufficient to make the rules of res judicata and estoppel by judgment applicable ■to the instant case, and to destroy plaintiff’s action. Troy Lumber Company, a corporate entity distinct from its shareholders, which had nothing to do with E. L. Taylor’s action, and which has other stockholders than F. L. Taylor, has a right to its day in court.
The judgment below is
Affirmed.