#### EARL FERGUSON v. REX SPINNING COMPANY.

(Filed 1 January, 1935.)

1. Judgments 1/ lb — Judgment dismissing action upon plea of estoppel Iby judgment held without error in this case.

Where, upon a plea of estoppel by judgment, the trial court finds that the allegations and evidence in the second action instituted by plaintiff after his majority are substantially identical with the allegations and evidence in the former action against the same defendant brought by plaintiff through his next friend during plaintiff’s minority, and the findings of the court are supported by the pleadings and evidence in the former trial introduced in evidence in the second trial, judgment dismissing the second action upon the plea of estoppel will be affirmed.

2. Appeal and Error J g—

Where it is determined on appeal that defendant’s plea of estoppel by judgment was properly allowed, other assignments of error by plaintiff need not be considered.

Appeal by plaintiff from Sink, J., at July-August Term, 1934, of Gaston.

Affirmed.

The plaintiff, by his next friend, instituted an action in the year 1927 against the defendant for personal injuries alleged to have been caused by an overseer in the defendant’s mill, where the plaintiff was working as a “doffer boy,” negligently placing a hose conducting compressed air against the body of the plaintiff in such a way as to inflate and stretch the intestines of the plaintiff. At a trial of this action in the Superior Court of Gaston County the plaintiff recovered damages of the defend*497ant, and upon an appeal to tbe Supreme Court tbe judgment of tbe lower court was reversed. Ferguson v. Spinning Co., 196 N. C., 614.

After reaching bis majority tbe plaintiff instituted tbis action for tbe same injuries, and tbe defendant denied tbe allegations of tbe complaint and pleaded estoppel by judgment, asserting tbat tbe judgment in Ferguson v. Spinning Company, supra, constituted res adjudicata. Tbe judge below found tbe facts and beld tbat tbe plaintiff was estopped by tbe judgment in tbe former action to maintain tbis action and granted tbe defendant’s motion for a dismissal. Whereupon tbe plaintiff appealed, assigning errors.

J. Cr. Carpenter and J. L. Hamme for appellants.

J. Laurence J ones for appellee.

SciieNCK, J.

Tbe third assignment of error assails tbe finding of tbe court tbat “tbe cause of action set up in tbe present action is tbe same as tbat set up in tbe first,” and tbe fifth assignment of error assails tbe finding “tbat tbe testimony as to tbe cause of action was tbe same in both” (tbe former and instant cases).

We think tbe record in tbe former action, which was introduced in tbe trial of tbe instant ease, and tbe testimony taken in tbe trials of both cases furnish ample basis for these findings by bis Honor, and tbat such findings support bis conclusions of law tbat tbe judgment in tbe former case is an estoppel to tbe prosecution of tbe instant case.

In tbe former case it is alleged:

> “11th. Tbat tbe sole and proximate cause of tbe injuries and damages to tbis jdaintifif as herein alleged was and is tbe carelessness and negligence on tbe part of tbe defendant in tbat tbe defendant failed to furnish tbis plaintiff a safe place in which to' perform tbe duties of bis employment as aforesaid; tbat it carelessly and negligently furnished an incompetent, careless, and reckless vice-principal with a dangerous instrumentality to use as a plaything; tbat it carelessly and negligently failed to maintain such supervision and control over said vice-principal as to prevent him from using tbis dangerous instrumentality to tbe hurt of bis servants as aforesaid; tbat it carelessly and negligently maintained in its employ as its vice-principal one addicted to such practices, when it bad notice of such practices, or would have bad notice of same bad it maintained tbe proper and necessary supervision of its plant, as aforesaid.”

And in tbe instant case it is alleged:

> “10. Tbat it was tbe duty of tbe defendant to provide for tbe plaintiff Earl Ferguson a safe place in which to work, safe surroundings, a competent and thoughtful overseer, but notwithstanding tbe said duties owing by tbe defendant to tbe plaintiff Earl Ferguson it failed so to do, *498and carelessly and negligently surrounded him with such unsafe and dangerous instrumentality and permitted and allowed such unsafe and dangerous instrumentality to be used at and around the place where it required the plaintiff Earl Ferguson to- work, and such dangerous instrumentality to be used or picked up by such incompetent, thoughtless overseer and to be used by him in the manner aforesaid, to the great injury and damage of the plaintiff Earl Ferguson.

> “12. That the injuries sustained by the plaintiff Earl Ferguson and the damages sustained by him, as herein alleged, were caused solely and proximately by the negligence and carelessness and brutal act of the defendant as herein alleged.”

We think that substantially the same issues arise upon the complaints in the respective actions, former and instant, and, since it is well recognized that the test of an estoppel by judgment is the identity of the issues involved in suit, Gillam v. Edmonson, 154 N. C., 127, the plaintiff in this action is estopped by the pleadings in the former action wherein judgment adverse to him was. rendered.

We have examined the evidence in the former case, and carefully compared it with the evidence in the instant case, and there is substantially no difference between the former and the latter as it relates to the manner and way the plaintiff was injured, and we think that every ground of recovery presented in the latter trial was presented in the former trial, and, therefore, that the fifth assignment of error is untenable.

In Batson v. Laundry, 206 N. C., 371, it is said: “ . . If upon the trial of the new action, upon its merits, . . . it appears to the trial court, and is found by such court as a fact, that the second suit is based upon substantially identical allegation and substantially identical evidence, and that the merits of the second cause are identically the same, thereupon the trial court should hold that the judgment in the first action was a bar or res adjudicóla, and thus end that particular litigation/ ” And again in Hardison v. Everett, 192 N. C., 371, we find the following terse statement: “The underlying reason for recognizing the principle of estoppel is that a person ought not to be vexed twice about the same matter.”

The sustaining of the findings by the court that the pleadings and the evidence are substantially the same in the instant case as in the former action renders it unnecessary for us to pass upon the other assignments of error, as these findings alone are sufficient to sustain the judgment of the court.

Affirmed.