Smith v. McDowell Furniture Co.

Supreme Court of North Carolina

Smith v. McDowell Furniture Co.

61 S.E.2d 96, 232 N.C. 412, 1950 N.C. LEXIS 533

CourtSupreme Court of North Carolina

DecidedSeptember 27, 1950

Docket165

StatusPublished

Cited by4 cases

This text of 61 S.E.2d 96 (Smith v. McDowell Furniture Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. McDowell Furniture Co., 61 S.E.2d 96, 232 N.C. 412, 1950 N.C. LEXIS 533 (N.C. 1950).

Pincite

Opinion

Devin, J.

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. 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. Rader v. 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. Ins. Co., 227 N.C. 251 (258), 41 S.E. 2d 767; Lea v. Bridgeman, 228 N.C. 565, 46 S.E. 2d 555; Burnsville v. Boone, 231 N.C. 577, 58 S.E. 2d 351.

*414 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. 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 these 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. Laundry Co., 209 N.C. 223, 183 S.E. 413; Chapman v. Tea Co., 210 N.C. 842, 188 S.E. 628; Ingle v. Cassady, 211 N.C. 287, 189 S.E. 776; Smith v. 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, 227 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.

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Devin, J.

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. 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. Rader v. 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. Ins. Co., 227 N.C. 251 (258), 41 S.E. 2d 767; Lea v. Bridgeman, 228 N.C. 565, 46 S.E. 2d 555; Burnsville v. Boone, 231 N.C. 577, 58 S.E. 2d 351.

*414 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. 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 these 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. Laundry Co., 209 N.C. 223, 183 S.E. 413; Chapman v. Tea Co., 210 N.C. 842, 188 S.E. 628; Ingle v. Cassady, 211 N.C. 287, 189 S.E. 776; Smith v. 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, 227 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.

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61 S.E.2d 96, 232 N.C. 412, 1950 N.C. LEXIS 533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-mcdowell-furniture-co-nc-1950.

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