Cain v. Union Cent. Life Ins. Co.

• Decision Date: 18 May 1906
• Citation: 123 Ky. 59,93 S.W. 622
• Parties: CAIN v. UNION CENT. LIFE INS. CO.
• Court: Kentucky Court of Appeals

93 S.W. 622

123 Ky. 59

CAIN v. UNION CENT. LIFE INS. CO.

Court of Appeals of Kentucky.

May 18, 1906

Appeal from Circuit Court, Franklin County.

"To be officially reported."

Action by Sallie Cain against the Union Central Life Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

John W Ray, for appellant.

Greene & Van Winkle, for appellee.

HOBSON C.J.

On March 6, 1899, appellant Sallie Cain, who was then Sallie Lee, instituted an action in the Franklin circuit court against the appellee, the Union Central Life Insurance Company, on a contract of insurance made on September 24 1894, whereby, as she alleged, the life of J. T. Lee was insured in the sum of $2,000 for her benefit. The defendant answered, pleading, among other things, a contract limitation of one year in bar of the action. She replied to the answer. The circuit court sustained a demurrer to so much of her reply as related to the contract limitation of one year, and she declining to plead further, a judgment was entered that the action be dismissed absolutely and that the defendant recover its cost. From this judgment she appealed to this court, and by an equally divided court the judgment of the circuit court was affirmed. Lee v. Insurance Co., 56 S.W. 724, 22 Ky. Law Rep. 1712. Subsequently, on March 23 1905, she brought this suit on the same cause of action against the same defendant. The defendant pleaded the judgment in the former case in bar of the action. The circuit court held the plea good and dismissed the action. From this judgment she appeals.

After the decision of the former case this court in the case of Union Central Life Insurance Company v. Spinks, 83 S.W. 615, 26 Ky. Law Rep. 1205, 69 L.R.A. 264, overruled the opinion rendered in the former case. But, although this is true, the judgment in that case is binding upon the parties to the action. In Thompson v. Louisville Banking Company, 55 S.W. 1080, 21 Ky. Law Rep. 1611, we had this precise question presented, and in disposing of it we said: "The opinion rendered in these cases is the law of the cases, however erroneous it may have been. The fact that it was overruled in a subsequent case between other parties destroys it as a precedent in other cases, but it is nevertheless binding on the parties to this controversy. The rule is elementary that a matter once litigated and determined finally cannot be relitigated between the same parties. When these cases were returned to the court below, that court had no alternative but to obey the mandate of this court, and upon appeal from that judgment this court is as much bound by that mandate as the court below was. If this were not so, litigation would be interminable, and a judgment of this court finally settling the rights of the parties would be only the starting point for new litigation." In Cincinnati, etc., R. R. Co. v. Pemberton, 9 Ky. Law Rep. 859, the plaintiff, after an opinion by this court, dismissed his action without prejudice and brought a new suit on the same cause of action. The same defense was interposed, and on appeal it was held that the court must regard it as the same case which was considered on the former appeal, and that the judgment then rendered was conclusive of all questions before the court. The same rule was applied by this court where, after an opinion by the superior court the plaintiff dismissed his action without prejudice and brought a new suit. Jenkins v. Headley's Ex'r, 40 S.W. 460, 19 Ky. Law Rep. 290.

It is earnestly contended for the appellant that a judgment upon a plea of limitation is not a judgment on the merits, and does not bar the plaintiff in a subsequent suit on the same cause of action. We cannot accede to this view. The judgment on the former appeal determined that the plaintiff's cause of action was barred by limitation. The parties were before the court. The question whether she could maintain the action or not was the thing litigated and determined. It having been determined then that she could not maintain the action by reason of the lapse of...