U.S. Fidelity & Guaranty Co. v. Blackley, Hurst & Co.

• Decision Date: 28 February 1905
• Citation: 85 S.W. 196
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. BLACKLEY, HURST & CO.
• Court: Kentucky Court of Appeals

85 S.W. 196

UNITED STATES FIDELITY & GUARANTY CO. v. BLACKLEY, HURST & CO.

Court of Appeals of Kentucky.

February 28, 1905

Appeal from Circuit Court, Jefferson County, Common Pleas Division.

"Not to be officially reported."

Action by Blackley, Hurst & Co. against the United States Fidelity &amp Guaranty Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Bodley Baskin & Flexner, for appellant.

Dodd &amp Dodd, for appellees.

HOBSON C.J.

The facts of this case are fully stated in the opinion rendered on the former appeal. See United States Fidelity &amp Guaranty Co. v. Blackley, Hurst & Co., 77 S.W. 709, 25 Ky. Law Rep. 1271. In reversing the judgment which had then been rendered in favor of appellees, this court, in concluding its opinion and stating the reasons for the reversal, said: "Whether appellee used ordinary care to post himself as to the condition of Barnett's accounts before he made the statement to appellant was a question for the jury. For the same reason we think the jury, under proper instructions, should have been allowed to determine whether the plaintiff, prior to the execution of the bond, knew that Barnett was engaged in any gambling or speculative business, would have materially enhanced the hazard of the risk assumed by appellant." On the return of the case to the circuit court it was tried again, and there was again a verdict and judgment for the plaintiffs. The defendant again appeals, insisting that the court should have peremptorily instructed the jury to find for the defendant, that the court did not properly instruct the jury, and that the court excluded proper evidence offered by it.

It is elementary that on the second appeal the opinion on the first appeal must be treated as the law of the case, and all questions which were then presented and properly before the court are as conclusively settled, though not referred to in the opinion, as if each was specially mentioned and considered. The pleadings on the second trial are the same as on the first. The evidence is not substantially different.

It is insisted that a peremptory instruction should have been given because C. M. Barnett, with the knowledge of the plaintiffs was engaged in buying tobacco, and this was not disclosed by the plaintiffs in their answers to the questions asked by the defendant at the time of the application for the bond. This precise question was presented by the record on the...