Cumbow Land Co. v. Hardin , 280 Ky. 682 ( 1939 )

Reversing.

This is the second appeal of this case. The opinion on the first appeal is found in 272 Ky. 736, 115 S.W.2d 303. The facts are fully stated in that opinion and it is unnecessary to repeat that statement here. On the return of the case to the circuit court another trial was had resulting in another verdict for the defendant, pursuant to which judgment was entered dismissing the petition. This appeal is prosecuted from that judgment.

We have carefully examined the evidence on the second trial and find that it is substantially the same as that heard on the first trial. It was pointed out in the former opinion that the only evidence having any bearing on the real issue in the case was that of the appellee and of W.H. Hardin. On the second trial the testimony of W.H. Hardin, given on the first trial, was read to the jury. The testimony of the appellee does not differ in any essential particular from that given by him on the first trial. This is apparently realized by counsel for the appellee, since no brief has been filed for the appellee pointing, out to us wherein the evidence differs in any substantial particular from that heard on the former trial.

Since it was held in the former opinion that the verdict was flagrantly against the evidence and since the evidence on this trial is substantially the same, we are again compelled to reverse the judgment because the verdict is flagrantly against the evidence. The opinion on the former appeal is the law of the case and must be followed.

Judgment reversed, with directions to grant the appellant a new trial, and for further proceedings not inconsistent with this opinion.