Commonwealth Life Ins. Co. v. Goodnight's Adm'r

• Court: Kentucky Court of Appeals
• Writing for the Court: WILLIS, J.
• Citation: Commonwealth Life Ins. Co. v. Goodnight's Adm'r, 235 Ky. 699, 32 S.W.2d 25 (Ky. Ct. App. 1930)
• Decision Date: 21 October 1930
• Parties: COMMONWEALTH LIFE INS. CO. v. GOODNIGHT'S ADM'R.

32 S.W.2d 25

235 Ky. 699

COMMONWEALTH LIFE INS. CO. v. GOODNIGHT'S ADM'R.

Court of Appeals of Kentucky

October 21, 1930

Appeal from Circuit Court, Shelby County.

Action by Angie Goodnight's administrator against the Commonwealth Life Insurance Company. Judgment for plaintiff and defendant appeals.

Affirmed.

Todd &amp Beard, of Shelbyville, and Batson, Cary & Welch, of Louisville, for appellant.

Gilbert Pickett & Matthews, of Shelbyville, for appellee.

WILLIS J.

The Commonwealth Life Insurance Company appeals from a third verdict against it in an action upon a life insurance policy. Upon the first appeal it was contended (1) that a peremptory instruction for it should have been given to the jury, (2) that the verdict was not sustained by the evidence, (3) that the court erred in the admission and rejection of evidence and (4) that the instructions were erroneous. It was held upon that appeal that the evidence was sufficient to take the case to the jury, but the judgment was reversed upon the other grounds assigned. Commonwealth Life Ins. Co. v. Goodknight's Adm'r, 212 Ky. 767, 280 S.W. 123.

Upon the second appeal the right to a reversal of the judgment against the company was rested upon three grounds, which are stated in the opinion. They were (1) alleged error of the court in denying a motion for a directed verdict in favor of the company, (2) refusal to grant a new trial on the ground that the verdict was palpably against the evidence, and (3) a ruling respecting matters introduced by an amended reply. It was again held that the motion for a peremptory instruction was properly denied, but that the verdict was flagrantly against the evidence, and that the amended reply should not be allowed. A new trial was ordered. Commonwealth Life Ins. Co. v. Goodknight's Adm'r, 225 Ky. 688, 9 S.W.2d 1013.

Upon the present appeal it is argued again that a peremptory instruction for the appellant should have been given. The argument is fallacious for at least two reasons. In the first place the evidence is the same as it was on the former appeals and is sufficient to require submission of the case to the jury. The holding of this court to that effect upon the former appeals is conclusive of the question, not only upon the trial court, but upon this court as well. Right or wrong, it constitutes the "law of the case." Louisville & N. R. Co. v. Rowland's Adms., 227 Ky. 841, 14 S.W.2d 174; Mason v. Thomas W. Briggs Co., 221 Ky. 127, 297 S.W. 1106; Metropolitan Life Ins. Co. v. Penick, 227 Ky. 490, 13 S.W.2d 496; Fletcher American Co. v. Culbertson, 228 Ky. 734, 16 S.W.2d 175.

As to the insistence that the present verdict is palpably against the evidence, a different question arises. The Civil Code of Practice, § 341, forbids the granting of more than two new trials to a party upon the ground that the verdict is not sustained by the evidence. It is immaterial that the new trials were granted on the mandate of this court, or that other errors of law also were present in the record and were made grounds for the reversal. Cumberland Railway Co. v Girdner...