Trent v. Lechtman Printing Co.

• Decision Date: 31 December 1912
• Citation: 167 Mo. App. 540,152 S.W. 376
• Parties: TRENT v. LECHTMAN PRINTING CO.
• Court: Missouri Court of Appeals

152 S.W. 376

167 Mo. A. 540

TRENT v. LECHTMAN PRINTING CO.

Kansas City Court of Appeals. Missouri.

December 31, 1912.

APPEAL AND ERROR (§ 1195)—LAW OF THE CASE.

The decision of the court on appeal is the law of the case on a subsequent trial, where there is no essential difference in the evidence at the two trials.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by Clay H. Trent, by next friend, against the Lechtman Printing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Battle McArdle, of Kansas City, for appellant. Yates & Mastin and D. E. Bird, all of Kansas City, for respondent.

JOHNSON, J.

This case was here on a former appeal from a judgment recovered by plaintiff. We reversed the judgment and remanded the cause on account of misconduct of plaintiff's counsel in his argument to the jury. 141 Mo. App. 437, 126 S. W. 238. The case was tried again, resulting in a verdict and judgment for plaintiff in the sum of $3,500. Again defendant appealed, and we are asked to reverse the judgment on the ground of error in the refusal of the court to give a peremptory instruction to the jury to return a verdict for defendant.

A similar instruction was considered in our former opinion, and we held that plaintiff had made out a case to go to the jury. Counsel for defendant attempt to excuse their second presentation of issues then definitely settled on the ground of essential differences in the evidence adduced at the two trials. Special attention is called to the alleged absence from the present record of any evidence of a promise to repair the machine in question and an assurance of safety, on which plaintiff claims he relied. But we find in plaintiff's testimony the same assertions with reference to these issues, with the exception of some minor and nonessential differences as to details, that appeared in the former record. On the whole record, we find the demurrer to the evidence raises the identical questions we decided in the former opinion; and as we are satisfied with the views therein expressed, we see no occasion for disturbing the judgment.

Accordingly it is affirmed. All concur.