32 S.W.2d 403 | Ky. Ct. App. | 1929
Affirming.
We have reached the concluding chapter in a controversy that has vexed the courts for over nineteen years. Diana B. Long, on December 7, 1910, sued the New York Life Insurance Company upon a policy of life insurance issued on March 5, 1910, to Anthony F. Long, son of Diana B. Long, in which she was designated as the beneficiary. The plaintiff recovered a judgment, but it was reversed by this court upon the ground that the trial court committed an error in refusing to permit the filing of an amended answer which set up certain statutes of the State of Wyoming.
Four points are now insisted upon as grounds for reversal: (1) That the court erred in refusing to give the jury a peremptory instruction; (2) that there was no competent testimony to the effect that the misrepresentations made in the application were not material; (3) that the instruction given was erroneous because it submitted to the jury whether the misrepresentations were false; and (4) refusal to give the jury an offered instruction. It is apparent from the recital of the history of the case that all these questions are concluded by the opinions of this court upon the previous appeals. The argument for *809 the peremptory instruction is that the evidence showed without contradiction that the statements made in the application were false, and that the testimony for the insurance company established that they were material; but these questions were considered and disposed of on the former appeals. It was held that there was an issue as to the materiality of the misrepresentations, and, if competent evidence was produced by the plaintiff upon that question, it was for the jury. Such evidence was produced on the last trial by witnesses already held to be competent for that purpose, and the argument predicated upon the assumption that they were not so qualified is in opposition to the opinion of this court on the fourth appeal.
The argument that the hypothetical question was defective, in that it did not reflect the true state of facts in evidence, fails to appreciate the ruling of this court which indicated what the question was to embrace. The third point, to the effect that the instructions left to the jury the falsity of certain misrepresentations, which were admittedly untrue, is answered by the fact that these very instructions were approved by this court. The whole issue to be tried was the materiality, and not the falsity, of the answers to the questions, and it was submitted in accordance with the previous decisions, and can no longer be the subject of debate. We have not overlooked the argument of appellant addressed to the effect of the answers of the expert witnesses to the hypothetical questions as to the materiality of the misrepresentations. They testified to the belief, from the facts assumed in the question, that the particular policy in suit would have been issued, and not merely that some other policy predicated upon a different premium would have been issued. The testimony, in its entirety, is not susceptible to the narrow construction put upon it for the purpose of the argument.
The fourth point is introduced for the first time, but it is equally foreclosed by the inflexible rule of the law of the case. At the last trial the insurance company offered an instruction to the effect that, if the false representations were made with a knowledge of their falsity, or with the intention to deceive or mislead, the jury should find for the defendant. That instruction was not offered in the previous trials, but it is nevertheless not available. It has been held uniformly that, where the facts are not *810
materially different, there is no room for additional instructions. The law of the case requires that all questions lurking in the record must be raised upon the appeal and may not be raised thereafter. It applies to instructions not offered, but which might have been offered, on the earlier trials. Pickrell v. Wilson,
After nineteen years of stubborn litigation, seven jury trials, and five appeals to this court, we find that there has been, at last, a fair trial, which satisfies the law and leaves the parties without just ground for complaint.
The judgment is affirmed.