Batson v. City Laundry Co
| Decision Date | 11 April 1934 |
| Docket Number | No. 433.,433. |
| Citation | 174 S.E. 90,206 N. C. 371 |
| Parties | BATSON . v. CITY LAUNDRY CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, New Hanover County; Cranmer, Judge.
Action by Hazel Batson against the City Laundry Company. From a judgment of dismissal, plaintiff appeals.
Reversed.
This cause was tried in the superior court and the plaintiff recovered damages in the sum of $12,250. The trial judge set the verdict aside and allowed motion of nonsuit upon the ground that the plaintiff "upon her own testimony is guilty of contributory negligence." Upon appeal to the Supreme Court the cause was remanded. See Batson v. Laundry, 202 N. C. 560, 163 S. E. 600. This judgment of nonsuit was affirmed. Subsequently the plaintiff instituted the present action.
The complaint contained many allegations substantially similar to the allegations in the former complaint. However, there were new allegations of negligence. The defendant filed an answer denying negligence and pleaded contributory negligence, and for further defenses pleaded the three-year statute of limitations and estoppel by judgment, asserting that the judgment affirmed in Batson v. Laundry, 205 N. C. 93, 170 S. E. 136, constituted res adjudicata.
When the case was called for trial in the superior court, the plaintiff lodged a motion ore tenus to strike from the answer the pleas of the statute of limitation and of res adjudicata. In arguing the motion plaintiff offered in evidence the original complaint in the former action and the complaint and answer in this action and used "the former judgments and opinion of the Supreme Court." The defendant thereupon moved for judgment upon the ground that the opinion of the Supreme Court was res adjudicata. The court denied plaintiff's motion to strike the said pleas from the defendant's answer and dismissed the action upon the defendant's motion, and the plaintiff appealed.
Herbert McClammy, Burney & McClelland, and Rountree, Hackler & Rountree, all of Wilmington, for appellant,
L. Clayton Grant and Bryan & Campbell, ail of Wilmington, for appellee.
C. S. § 415 permits a plaintiff to bring a new action within one year after a judgment of nonsuit. No point is made that the present suit was not brought within a year after the judgment of nonsuit reported in Batson v. Laundry, 205 N. C. 93, 170 S. E. 136. Consequently the plaintiff had a right to bring a new action. If it should be held that the plea of res adjudicata was applicable to the...
To continue reading
Request your trial
-
North Carolina Consumers Power, Inc. v. Duke Power Co.
...118 N.C. 152, 24 S.E. 746. Such a ruling would have been just the reverse of the one we are now considering. Batson v. City Laundry Co., 206 N.C. 371, 174 S.E. 90, Supra.' * * * * * * "It is only when the judgment or order appealed from in the course of the action puts an end to it, or may ......
-
Kelly v. Kelly
...nonsuit, the plaintiff is permitted to bring another action in order that he may 'mend his licks,' if he can. Batson v. City Laundry Co., 206 N.C. 371, 174 S.E. 90; Swainey v. Great Atlantic & Pacific Tea Co., 204 N.C. 713, 169 S.E. 618; Hampton v. Rex Spinning Co., supra; Tuttle v. Warren,......
-
Johnson v. Pilot Life Ins. Co.
...Royster v. Wright, 118 N.C. 152, 24 S.E. 746. Such a ruling would have been just the reverse of the one we are now considering. Batson v. City Laundry Co., supra. reason no appeal lies from a refusal to dismiss, is that it does not come within the purview of the statute, C.S. § 638, permitt......
-
Craver v. Spaugh
...cause of action, and upon substantially the same evidence. Hampton v. Rex Spinning Co., 198 N.C. 235, 151 S.E. 266; Batson v. City Laundry Co, 206 N.C. 371, 174 S.E. 90. The plea cannot be determined from the pleadings alone. DixDowning v. White, 206 N.C. 567, 174 S.E. 451; Buchanan v. Ogle......