Triano

Action for damages by plaintiff, a minor eight years of age, for injuries received by him in coming in contact with a gear of one of the peeling devices in defendant Booth Company’s canning plant.

The action was first brought in Alameda County. The complaint was in two counts. The first alleged that plaintiff became dizzy and was about to fall and to save himself from striking the floor he ran his hand into the gear, resulting in the. injuries, complained of. The second count was based upon the attractive nuisance theory. Defendant Booth & Company is a Nevada corporation. The ease was transferred or removed to the federal court. At the opening of the trial in that court, plaintiff dismissed the first count and the case was tried under the second. The trial resulted in a verdict for defendant and judgment on such verdict was entered and it became final.

Thereafter plaintiff instituted another action to recover for the same injuries, and joined as defendants the Booth Company and its stockholders. This complaint contained the identical counts of the original and earlier action. Both actions were founded on the same cause of action and the parties were the same except the…