Hampton v. Rex Spinning Co.

• Decision Date: 22 January 1930
• Docket Number: 639.
• Citation: 151 S.E. 266,198 N.C. 235
• Parties: HAMPTON v. REX SPINNING CO.
• Court: North Carolina Supreme Court

151 S.E. 266

198 N.C. 235

HAMPTON v. REX SPINNING CO.

No. 639.

Supreme Court of North Carolina

January 22, 1930

Appeal from Superior Court, Cherokee County; McElroy, Judge.

Action by Ed Hampton against the Rex Spinning Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Civil action for damages for personal injury. The facts essential to the presentation of the legal question involved are contained in the judgment, which is as follows:

"This cause coming on to be heard before his honor, P. A McElroy, judge holding the courts of said county, at June term, 1929, in said court, and after the jury has been sworn and impaneled, the pleadings read, and testimony introduced on behalf of both plaintiff and defendant, and defendant having pleaded, in its amendment to its answer in this cause, a former determination or judgment of nonsuit against the plaintiff on the same cause of action and on the same testimony, at April term, 1928, of said court from the records and uncontradicted testimony the court finds the following facts:

"1. That on May 16, 1927, the plaintiff in this action, Ed Hampton, instituted an action against the Rex Spinning Company above named by suing out a summons therein, which was duly served on said defendant Spinning Company on the 21st day of said month, and on the 27th day of said month, plaintiff duly filed his complaint in said action in the office of the clerk of the superior court of said county, to which complaint the defendant filed its answer on the 17th day of June, 1927.

"2. That said cause came on for trial at the April term, 1928, of said court, before Hon. Cameron McRae, Special Judge, and a jury which was duly sworn and impaneled, at which trial the said plaintiff, Ed Hampton, and one J. T. Cowart were the only witnesses who testified for plaintiff, and at the conclusion of plaintiff's testimony, and after consideration of the cause upon its merits, the court adjudged that the plaintiff, upon all the evidence, was not entitled to recover, and rendered a judgment of nonsuit against the plaintiff, from which plaintiff did not appeal, but which judgment is still in force and unreversed and has been since the date of said trial.

"3. That on March 29, 1929, the plaintiff, Ed Hampton, who is admitted to be the same Ed Hampton who was plaintiff in said former suit, sued out another summons against the same defendant, which summons with the complaint of plaintiff therein was duly served on Rex Spinning Company April 3, 1929, to which complaint defendant on April 27, 1929, duly filed its answer, and thereafter by leave of the court, after it had overruled the first plea of estoppel set up in an amendment to defendant's said answer, and stricken out so much of paragraph 2 of the second estoppel set up in said amendment as contained the testimony of witness, defendant's amendment to its answer was filed, and upon plaintiff's said complaint and answer of defendant, with its amendment as allowed by the court, the cause came on to be tried at the June term, 1929, of said court.

"4. That after a jury had been chosen, sworn and impaneled, the pleadings read and testimony introduced by both plaintiff and defendant, at the conclusion of the testimony, and upon the undisputed evidence in the case and records introduced, the court finds that the cause of action set up in the present action is the same as that set up in the first action, which fully appears from the pleadings in both cases which were introduced in evidence.

"5. The court further finds from the uncontradicted testimony of both the plaintiff, Ed Hampton, and his witness, J. T. Cowart, who were the only witnesses for plaintiff examined on the present trial with reference to said cause of action, that the testimony as to the cause of action was the same in both, except that on the former trial plaintiff testified that Brady was his boss, and on the latter the witness Goodman testified that Brady was under him and over plaintiff, who had orders from Brady.

"Whereupon it is considered, adjudged and decreed by the court that this, the plaintiff's cause of action in this suit, has heretofore been determined adversely to him upon the merits, and that by the judgment in said former cause that the said plaintiff is estopped to prosecute the same cause of action against the same defendant in the present cause, the court holding that the plaintiff is estopped by the former judgment.

"It is further considered, adjudged and decreed by the court that the plaintiff take nothing by his action, the same be dismissed, and that this defendant go hence without day."

From the judgment rendered plaintiff appealed.

J. D. Mallonee and Moody & Moody, all of Murphy, for appellant.

Dillard & Hill, of Murphy, for appellee.

BROGDEN J.

Does a judgment of nonsuit, duly entered by a judge of the superior court, upon the merits of the cause, and after all the evidence has been introduced by plaintiff, become determinative and conclusive in a new action, brought under C. S. § 415, upon the same complaint and upon the same evidence?

The plaintiff contends that C. S. § 415, permits any number of suits upon the same cause of action, brought within one year from a judgment of nonsuit, irrespective of the reason or grounds of such judgment, and bases his contention upon the following decisions of this court: Meekins v. Railroad, 131 N.C. 1, 42 S.E. 333; Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800, 801; Evans v. Alridge, 133 N.C. 378, 45 S.E. 772; Nunnally v. Railroad, 134 N.C. 755, 48 S.E. 998; Hood v. Telegraph Co., 135 N.C. 622, 47 S.E. 607; Tussey v. Owen, 147 N.C. 335, 61 S.E. 180, 181; Henderson v. Eller, 147 N.C. 582, 61 S.E. 446; Eureka Lumber Co. v. Harrison, 148 N.C. 333, 62 S.E. 413; Starling v. Cotton Mills, 168 N.C. 229, 84 S.E. 388, L. R. A. 1915D, 850; Culbreth v. Railroad, 169 N.C. 723, 86 S.E. 624, 626.

The principle was thus stated in Tussey v. Owen, supra: "The plaintiff may, under the decisions of this court, bring another action within one year after the judgment of nonsuit. *** If this were an open question, the writer of this opinion would not give his assent to the principle as thus decided; as a dismissal of the case upon the merits, whether called a nonsuit or by any other name, is equivalent in law to a judgment upon a demurrer to the evidence, which by the best considered authorities has the same effect, as a bar to another suit, as a judgment rendered upon a demurrer to the pleadings, or as any other judgment upon the merits. *** But the law has been settled the other way by actual decision upon the very question, and we now hold unanimously that another suit will lie within a year of the nonsuit."

In Eureka Lumber Co. v. Harrison, supra, the court said "We decided in Hood v. Telegraph Co., 135 N.C. 622, 47 S.E. 607, where the same point was presented, that a second action will lie, although a nonsuit had been entered against the plaintiff on the merits in a former suit for the same cause of action, and upon the same state of facts." The decisions cited as a basis for the doctrine announced in the Hood, Tussey, and Harrison Cases, supra, are Meekins v. Railroad, supra, Prevatt v. Harrelson, supra, Evans v. Alridge, supra, and Nunnally v. Railroad, supra. It may be interesting to observe that the Meekins Case involved a voluntary nonsuit. The Prevatt Case contains no reference to a former suit between the parties. In the case of Evans v. Alridge, supra, the action was dismissed because of failure of proof of showing the publication of summons. The Nunnally Case, supra, is a memorandum decision, which does not disclose the facts. Apparently, therefore, prior to the Hood Case, supra, there was no case involving the nonsuit of a prior action upon the merits. The original record in the Hood Case discloses that there was a trial of the cause upon its merits and the plaintiff was nonsuited. Upon appeal to the Supreme Court the nonsuit was affirmed (130 N.C. 743, 41 S.E. 1038), and the petition to rehear filed by plaintif...