Continental Insurance v. Hargrove

136 S.W. 616, 143 Ky. 400, 1911 Ky. LEXIS 394

• Court: Court of Appeals of Kentucky
• Decided: April 28, 1911
• Status: Published

Opinion

Opinion op the Cotjet by

Chiep Justice Hobson

Reversing.

The facts of this case are fully stated in the opinion delivered on the former appeal. (See Continental Ins. Co. v. Hargrove, 131 Ky., 837.) On that appeal it was held that the verdict for the plaintiff was palpably against the evidence and the judgment for this reason was reversed. On the return of the case to the circuit court, it was tried again on the same evidence, and a second verdict having been returned in favor of the plaintiff, the court entered judgment upon it. The insurance company appeals.

The facts on the second trial are the same as on the first trial. There was no substantial change in the testimony, and no material new testimony was introduced. The former opinion is the law of the case. A's we then held that the verdict was palpably against the evidence, it is the law of the case that a verdict for the plaintiff on the same evidence is palpably against the evidence. It is provided in section 341 of the Civil Code that not more than two new trials shall be granted to a party upon the ground that the verdict is not sustained by the evidence. This necessarily means that two new trials- may be granted if the verdict is not sustained by the evidence, and we can not extend the statute.

Judgment reversed and cause remanded for a new trial.

Judge Nunn dissents.