Opinion
Filed 23 February, 1959.
APPEAL by plaintiff from Seawell, J., March-April 1958 Civil Term of WAKE, docketed and argued at the Fall Term as No. 453.
Virginia N. Nowell in propria persona.
Smith, Leach, Anderson Dorsett and Howard E. Manning, for defendant, appellees.
This action was begun 1 May 1956. The complaint alleges plaintiff became a patient of defendants in 1951, negligence on the part of defendants in interpreting X-rays of her intestinal tract causing her to consent to a needless and negligently performed operation and a more extensive and unauthorized operation.
Defendants by answer denied the allegations of negligence and wrongful conduct. As affirmative defenses they pleaded: (a) the lapse of three years from the accrual of the cause of action and the provisions of G.S. 1-52 as a bar; (b) the provisions of G.S. 1-54 as a bar; and (c) the institution in 1953 of an action based on the wrongs asserted in this action, trial of that action at the May Term 1955 resulting in (1) judgment of nonsuit as to defendant Hamilton, (2) verdict on the merits in favor of defendant Neal with a judgment on the verdict, which judgment was affirmed by this Court in December 1955. See 243 N.C. 175. Defendants attached copies of the pleadings and judgment in the prior action to their answer in this action. They claimed the benefit of that judgment to defeat this action.
Plaintiff replied. She admitted the institution of the prior action resulting in judgment as shown by the exhibits attached to the answer. She denied the asserted legal effect of the prior judgment.
Defendants moved for judgment on the pleadings. Judge Seawell, examining the pleadings, found the identity of the actions and nonpayment of costs adjudged against plaintiff in the prior action. He adjudged the defenses appearing on the face of the pleadings valid and dismissed the action.
This action grows out of the same basic facts considered in Nowell v. Neal, ante, 516, and Nowell v. Hamilton, ante, 523. No new legal question is presented. The judgment rendered conforms with settled principles of law. Hence it is
Affirmed.