Whitehurst v. . Elks

Pee Cueiam. It may be conceded, without deciding, that there was evidence at the trial of this action tending to show a relationship between the defendant F. A. Elks and the defendant J. H. Dunbar, such that negligence on the part of the defendant J. H. Dunbar, resulting in the death of plaintiff’s intestate, would- have been imputed to the defendant F. A. Elks on the principle of respondeat superior. On the *98 facts shown by all the evidence, the defendant E. A. Elks was liable to the plaintiff in this action only on this principle. The trial court, being of opinion that there was no evidence tending to show liability on the part of the defendant J. H. Dunbar to the plaintiff, dismissed the action by judgment as of nonsuit as to the defendant J. H. Dunbar, and also as to the defendant E. A. Elks. On his appeal to this Court, the plaintiff does not contend that there was error in the judgment dismissing the action as to the defendant J". H. Dunbar. It follows that the contention of the plaintiff that there was error in the judgment dismissing the action as to the defendant E. A. Elks cannot be sustained. Where the relation between two parties is analogous to that of principal and agent, or master and servant, or employer and employee, the rule is that a judgment in favor of either, in an action brought by a third party, rendered upon a ground equally applicable to both, should be accepted as conclusive against plaintiff’s right of action against the other. 15 R. O. L., 1021. In accordance with this rule, the judgment dismissing the action as against the defendant E. A. Elks is Affirmed.