Chapman v. Great Atlantic & Pacific Tea Co., 210 N.C. 842 (1936)

Dec. 16, 1936 · Supreme Court of North Carolina

210 N.C. 842

A. L. CHAPMAN v. THE GREAT ATLANTIC & PACIFIC TEA COMPANY.

(Filed 16 December, 1936.)

Appeal by plaintiff from Rousseau, J., at May Term, 1936, of Guilford.

Affirmed.

This is an action to recover damages for personal injuries which the plaintiff suffered when he was struck on the head by an awning which fell on him while he was standing on the sidewalk in front of defendant’s store in the city of High Point, N. ■().

The action was begun in the Superior Court of Guilford County on 3 January, 1936.

It is alleged in the complaint that plaintiff’s injuries were caused by the negligence of the defendant, as specifically alleged therein.

This allegation is denied in the answer.

In further defense, and as a bar to plaintiff’s recovery in this action, the defendant pleads a judgment of the municipal court of the city of High Point dismissing as of nonsuit an action begun in said court by the plaintiff against the defendant on the same cause of action as that alleged in the complaint in this action.

At the close of the evidence the court found that the cause of action alleged in the complaint in this action is substantially the same as that alleged in the complaint in the action instituted by the plaintiff against tbe defendant in the municipal court of High Point; that the evidence at the trial of this action is substantially the same as that at the trial of the action instituted by the plaintiff against the defendant in the municipal court of High Point; that the action instituted by the plaintiff against the defendant in the municipal court of High Point, and tried in said court, was dismissed by judgment as of nonsuit on 19 July, 1935, and that the plaintiff did not appeal from said judgment.

On these findings of fact, it was ordered, considered, and adjudged by the court that this action be and the same was dismissed.

The plaintiff excepted and appealed to the Supreme Court, assigning as errors the findings of fact and the judgment.

Silas B. Carey and Walser £ Wright for plaintiff.

Dalton, Turner ■& Dickson and JR. T. Pickms for defendant.

Per Curiam.

The findings of fact on which the judgment was rendered in this action were supported by the evidence at the trial.

An examination of the complaint in this action and of the complaint in the action instituted by the plaintiff against the defendant in the municipal court of High Point, discloses that the causes of action alleged in said complaints are substantially the same. The evidence at the trial of said actions is likewise substantially the same. There was no error in the findings of fact.

The judgment dismissing the action is supported by the findings of fact and is affirmed on the authority of Hampton v. Spinning Co., 198 N. C., 235, 151 S. E., 266; Brown v. Johnson, 207 N. C., 807, 178 S. E., 570; Batson v. Laundry Co., 209 N. C., 223, 183 S. E., 413.

Affirmed.