
    F. B. INGLE v. LUCRETIA CASSADY.
    (Filed 24 February, 1937.)
    Judgments § 38—
    Where the record supports the findings of the court that the allegations and evidence are substantially identical with those of a prior action non-suited, and that the merits of the two causes are identical, judgment that the prior action constituted res a&ju&ieata, and dismissing the second action is proper. G. S., 415.
    Appeal by plaintiff from Phillips, J., at November Term, 1936, of BUNCOMBE.
    
      Civil action to recover damages for an alleged negligent injury.
    After bearing tbe evidence, tbe trial court found as a fact “tbat tbe instant suit between tbe parties hereto is based substantially on identical allegations and substantially identical evidence as in tbe former case between tbe same parties hereto . . . tbat tbe merits of this cause of action are in substance and identically tbe same as in tbe former action,” and thereupon held tbat tbe plaintiff was estopped to prosecute tbe present action by tbe judgment in tbe former suit, and dismissed tbe same.
    Plaintiff appeals, assigning error.
    
      Ford, Goxe •& Garter for plaintiff, appellant.
    
    
      Harlcins, Yan Winlcle & Walton for defendant, appellee.
    
   Per CueiaM.

This is the “same candle blown out in the original action,” Ingle v. Cassady, 208 N. C., 497, 181 S. E., 562, “and lighted again in the present action.” C. S., 415; Loan Co. v. Warren, 204 N. C., 50, 167 S. E., 494; Motsinger v. Hauser, 195 N. C., 483, 142 S. E., 589.

As the facts found by the trial court are supported by the record, Batson v. Laundry Co., 209 N. C., 223, 183 S. E., 413, the judgment will be affirmed on authority of Hampton v. Spinning Co., 198 N. C., 235, 151 S. E., 266, where it was said tbat “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, tbat the second suit is based upon substantially identical allegation and substantially identical evidence, and tbat the merits of the second cause are identically the same, thereupon the trial court should bold tbat the judgment in the first action was a bar or res adjudicata, and thus end that particular litigation.” The same rule was restated and followed in Batson v. Laundry Co., 206 N. C., 371, 174 S. E., 90.

Affirmed.  