Opinion
No. 29775.
November 19, 1940. Rehearing Denied December 24, 1940.
(Syllabus.)
APPEAL AND ERROR — Decision on former appeal controlling — Verdict properly directed for defendant.
This court having held on a former appeal that the trial court should have directed a verdict for the defendant at the close of all the evidence, and inasmuch as there is no substantial difference in the facts presented in this case from those presented in the case when it was here before, the decision of the former appeal is controlling.
Appeal from District Court, Garvin County; Ben T. Williams, Judge.
Action by Vermelle Sherrill, administratrix of the estate of Lula J. Smith, deceased, and others, against the Sovereign Camp, Woodmen of the World, on a life insurance policy. From judgment for defendant, based on a directed verdict, plaintiffs appeal. Affirmed.
R.E. Bowling, of Pauls Valley, for plaintiffs in error.
Jacob B. Moore, of Ardmore, for defendant in error.
This is the third time this case has been before this court. A statement of the facts will be found in the first appeal, Sovereign Camp, Woodmen of the World, v. Lula J. Smith, 176 Okla. 545, 56 P.2d 408. During the time between the first and second appeals Lula J. Smith died, and the second case as well as the instant case was prosecuted in the name of Vermelle Sherrill, administratrix of the estate of Lula J. Smith, deceased.
The case was first tried to a jury and a verdict rendered in favor of the plaintiff for the amount sued for, from which verdict the defendant appealed to this court. This court, after reviewing the evidence, reversed the case for the reason that the evidence was not sufficient to sustain the verdict of the jury. See Sovereign Camp, Woodmen of the World, v. Smith, supra. On being submitted to the trial court again, the trial judge instructed the jury to return a verdict in favor of the defendant, from which verdict the instant appeal is taken. There was no change in the pleadings and the evidence in this trial was substantially the same as in the earlier trial.
In Doyle-Kidd D. G. Co. v. Ingram, 126 Okla. 161, 259 P. 211, we said:
"This court having held on a former appeal that the trial court should have directed a verdict for the defendant at the close of all the evidence, and inasmuch as there is no substantial difference in the facts presented in this case from those presented in the case when it was here before, the decision of the former appeal is controlling."
We have examined the evidence presented in this appeal and have found no substantial difference in the facts presented in this case from those presented when it was here before. This court will not disturb a verdict in favor of defendant as directed by the trial court under such a record.
The former decision, Sovereign Camp, Woodmen of the World, v. Smith, supra, is controlling and is the law in this case.
The judgment is affirmed.
RILEY, GIBSON, HURST, and NEFF, JJ., concur.