Smith v. McDowell Furniture Co.

61 S.E.2d 96 (1950) 232 N.C. 412

SMITH
v.
McDOWELL FURNITURE CO. et al.

No. 165.

Supreme Court of North Carolina.

September 27, 1950.

Paul J. Story, Marion, for plaintiff-appellant.

Smathers & Meekins, Asheville, for defendant McDowell Furniture Co., appellee.

Proctor & Dameron, Marion, for defendant-appellee, J. H. L. Miller and Fred C. Morris, Partners, Trading as Builders Supply Co.

DEVIN, Justice.

It was admitted that the present action is between the same parties and for the same cause as that alleged in the former action which was terminated by judgment of nonsuit, affirmed on appeal. But it was contended that new and additional evidence had been offered in the present action which had not been offered in the former action, particularly as tending to repel the inference of contributory negligence on the part of the plaintiff, and that this action was not being prosecuted upon substantially the same evidence as that appearing of record in the previous action. Hampton v. Rex Spinning Co., 198 N.C. 235, 151 S.E. 266.

However, the trial judge has decided against the plaintiff on this point, and found, after examination of the testimony offered at the present trial in comparison with the record of the evidence offered at the former trial, that the evidence here "is substantially identical" with the evidence in the trial of the former action. The plaintiff excepted to the ruling of the court in dismissing his action, but did not except to the findings of fact upon which the court's judgment was based, leaving only the correctness of the ruling on the facts found as the question presented by the appeal. Radar v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609; Fox v. Mills, Inc., 225 N.C. 580, 35 S.E.2d 869; Manning v. Commerce Ins. Co., 227 N.C. 251, 258, 41 S.E.2d 767; Lea v. Bridgeman, 228 N.C. 565, 46 S.E.2d 555; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351.

While ordinarily a party against whom a judgment of nonsuit has been rendered may commence a new action within one year, G.S. § 1-25, this right is subject to the rule announced in Hampton v. Rex Spinning Co., 198 N.C. 235, 151 S.E. 266, that where a judgment of nonsuit has been entered, and a new suit has been commenced between the same parties based on substantially identical allegations and supported by substantially identical evidence, and those facts are found by the court, the judgment in the former action will be held res judicata and a bar to the maintenance of the second suit. This rule has been consistently adhered to by this Court. Batson v. City Laundry Co., 209 N.C. 223, 183 S.E. 413; Chapman v. Great Atlantic & Pacific Tea Co., 210 N.C. 842, 188 S.E. 628; Ingle v. Cassady, 211 N.C. 287, 189 S.E. 776; Smith v. Pilot Life Ins. Co., 216 N.C. 152, 4 S.E.2d 321; Cleve v. Adams, 222 N.C. 211, 22 S.E.2d 567; Craver v. Spaugh, 22 N.C. 129, 41 S.E.2d 82; Yancey v. Yancey, 230 N.C. 719, 721, 55 S.E.2d 468.

Here the court has found facts which bring the plaintiff's present action squarely within the rule laid down in Hampton v. Spinning Co., supra, and an examination of the record reveals sufficient basis for these findings. The judgment of dismissal logically follows.

Judgment affirmed.