Folger v. Commonwealth, Department of Highways

350 S.W.2d 703

Opinion

PALMORE, Judge.

In Foiger v. Commonwealth, Ky.1959, 330 S.W.2d 106, reversing a circuit court judgment to the contrary, we held that the appellants, Folg'er and Mathias, had such an interest pertaining to certain property acquired by the state that they were entitled to compensation for its destruction. The case was remanded for further proceedings. After receiving the evidence thereupon introduced, followed by a verdict awarding appellants $4,000, the trial court sustained the state’s motion for judgment n. o. v. and again gave judgment against the appellants, this time on the ground that their rights remained untaken, unviolated and undestroyed. Hence this second appeal.

A .re-examination of our first opinion in this case has convinced us that we were wrong in holding the appellants entitled to recover. See Cumberland River Oil Company v. Commonwealth, Ky.1961, 350 S.W.2d 700, decided today. As to the law of the case, it falls within the qualification stated in Union Light, Heat & Power Co. v. Blackwell’s Adm’r, Ky.1956, 291 S.W.2d 539.

Judgment affirmed.

BIRD, C. J., dissenting.