Pace v. Paducah Ry. & Light Co.

• Decision Date: 26 October 1905
• Citation: 89 S.W. 105
• Parties: PACE v. PADUCAH RY. & LIGHT CO.
• Court: Kentucky Court of Appeals

89 S.W. 105

PACE v. PADUCAH RY. & LIGHT CO.

Court of Appeals of Kentucky.

October 26, 1905

Appeal from Circuit Court, McCracken County.

"Not to be officially reported.'

Action by W. D. Pace against the Paducab Railway & Light Company. From a judgment granting a new trial, plaintiff appeals. Reversed.

Taylor & Lucas, for appellant.

Reed &amp Berry, for appellee.

O'REAR J.

This is an action by appellant against appellee to recover damages for personal injury. It grows out of the same accident and occurrence as shown in the case of Glisson v. Paducah Railway & Light Co., 87 S.W. 305, 27 Ky. Law Rep. 965. The same question of practice arises in this case as arose in that, and for which the judgment in that case was reversed. It consequently follows that the judgment in this case must also be reversed.

Appellee pleaded a settlement of the cause of action before the filing of this suit. Appellant sought to avoid this plea by a replication that the settlement was procured by the fraud misrepresentation, and oppression practiced upon him by the agents of appellee. The court submitted the question to the jury whether the settlement was procured by the actual fraud of appellee or its agents. The instruction, however, does not confine the fraud relied upon. The practice of submitting to the jury whether a contract was procured by fraud really leaves to the jury the determination of both the law and fact of the matter. The court, on the contrary, should have submitted to the jury to find the evidence whether the specific acts relied upon as constituting the fraud were perpetrated by appellee or by its agents in its behalf.

There were three trials of this case. The result of the first trial was a verdict for appellant for $1,000. This was set aside on the application of appellee on some of the numerous grounds filed in support of the motion for a new trial. Which of the grounds it was based upon, is not shown in the court's judgment. No bill of exceptions was filed, touching that trial. Therefore it must be assumed, on this appeal, that the action of the court in granting it was justified. The second trial resulted in a verdict for appellant of $500. The bill of exceptions disclosed that substantially the same evidence and the same instructions were given as upon the last trial. The court granted a new trial, and set aside the second judgment. Among the grounds stated was that the verdict was contrary...