Opinion
Decided November 30, 1937.
Appeal from Wayne Circuit Court.
E. BERTRAM for appellants.
J.M. KENNEDY for appellees.
Reversing.
Claiming that they were the joint owners of a 73-acre tract of land lying on the waters of Carpenters fork of Otters creek in Wayne county, W.M. Beatty and others brought suit against Virgil Pyle and B.D. Shapero to recover the value of timber cut. A trial before a jury resulted in a verdict and judgment for plaintiffs in the sum of $2,998. On appeal the judgment was reversed on the ground that the finding of the jury that the patent under which plaintiffs claimed was not included in the older patent under which the defendants claimed was flagrantly against the evidence and the cause remanded for a new trial. Pyle v. Beatty, 244 Ky. 518, 51 S.W.2d 659. On a second trial there was a verdict for plaintiffs in the sum of $2,900 and again the case is before us for review.
An opinion on appeal is the law of the case on subsequent trials and subsequent appeals, Baker v. High Splint Coal Co., 258 Ky. 786, 81 S.W.2d 577, and, where the judgment is reversed because the verdict is flagrantly against the evidence, and on a second trial a like judgment is rendered upon substantially the same evidence, the former opinion necessitates a reversal. Continental Ins. Co. v. Hargrove, 143 Ky. 400, 136 S.W. 616. We have carefully examined the evidence on the second trial, and find that, though appellants have improved their position by the introduction of other witnesses, the evidence presented by appellees is substantially the same as that heard on the first trial, and without additional probative value. In the circumstances a reversal of the judgment is the only alternative.
Judgment reversed and cause remanded for a new trial not inconsistent with this opinion.