Roberts, Harry W., Jr.

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University of Kentucky

Kentucky Law JournalVolume 29 | Issue 1 Article 151940Trial Procedure--Does a Motion for PeremptoryInstruction Test the Sufficiency of the Pleading?Harry W. Roberts Jr.University of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Civil Procedure CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationRoberts, Harry W. Jr. (1940) "Trial Procedure--Does a Motion for Peremptory Instruction Test the Sufficiency of the Pleading?,"Kentucky Law Journal: Vol. 29 : Iss. 1 , Article 15.Available at: https://uknowledge.uky.edu/klj/vol29/iss1/15KENTUCKY LAW JouRINALThe language and references of the court in the instant caseclearly indicate that there was no intention to depart from the acceptedconception of felony murder. Reference was made to Judge Roberson'streatise on criminal law, and a clear felony murder concept was quotedtherefrom:"It is murder . . . if a person commits arson by setting fire to adwelling house and accidentally burns the occupant." 17  (Italicsadded).The court also referred to Reddick v. Commonwealth, which, as pointedout above, is in conformity with the accepted theory of felony murder.In conclusion, it is submitted that the instant case is not a depar-ture from the generally recognized felony murder doctrine. The con-spiracy factor, and that alone, rendered it necessary for the court toinclude the theory of natural and probable causation before the con-viction of murder could be sustained. Also, a reiteration of the long-standing Kentucky precedent makes it evident that a departure fromthis precedent was not intended.J. Wiar Tun-En, J.TRIAL PROCEDURE-DOES A MOTION FOR PEREMPTORYINSTRUCTION TEST THE SUFFICIENCY OF THEPLEADING?In an action for injuries resulting from the alleged negligence ofthe defendant, defendant pleaded contributory negligence, and filed acounterclaim for his injuries. These allegations were not controvertedby the plaintiff's reply. The defendant's motions for peremptory in-structions, made at the close of the plaintiff's evidence, and again atthe close of all the proof, were denied. The defendant asks reversalof the judgment for the plaintiff on the ground that his affirmativedefense went undenied. The Court of Appeals said:"We have ruled in actions ex contractu and in suits of equitythat a party waives the failure to traverse an affirmative allegationwhere the case was tried as if the issue had been joined in thepleading, but in tort actions the rule is otherwise."The Court reversed the judgment but aflowed the plaintiff to file areply controverting the allegations if he desired to have a new trial.Short v. Robinson, - Ky. -, 134 S.W. (2d) 595 (1939).The statement of the Court that there is a distinction betweenthese three classes of actions, contract equity, and tort, must be con-sidered in the light of the facts of the case before it. Should the courtfollow this dictum, it would necessarily hold that a motion for per-emptory instruction in contract and equity actions will not raisethe sufficiency of the pleadings, but in tort actions the rule is other-'wise. Such a rule is not supported by law.In a search for authority upon which the Kentucky Court couldbase such a holding the only case found is Glens Falls Insurance Co. v.1Whitfield v. Com., 278 Ky. 111, 116, 128 S.W. (2d) 208, 210-11(1939).CASE COMMENTSElliot.1 There, plaintiff, in a suit on a contract, failed to reply to theaffirmative allegations of the defendant. At the close of all theevidence the defendant moved for a peremptory instruction which wasnot granted. The defendant appealed on the ground that his pleadingwent undenied. In rather loose language the Court of Appeals affirmedthe judgment, saying:".. . a motion for a peremptory instruction does not raise thequestion of the sufficiency of the evidence, where the attention ofthe court is not called in some way to the condition of the plead-ing, and this question is not presented to the court ... The ruleIs settled that, where parties on the trial treat the pleadings asconroverted, the judgment will not be reversed here; for it is awise rule that all these objections should be made first in thecircuit court. It is evident that this objection is first made here,and that either the defendant's attorneys did not know the factswhen the trial was going on or concealed them from the court andtreated the pleadings as controverted. The pleadings, having beentreated as controverted during the long trial, can not be treatedotherwise here."'In making such a statement the court was evidently overlookingIts prior decisions on this point.3 It has been held almost uniformlyin Kentucky that a motion for a directed verdict tests the sufficiencyof both pleading and evidence. 4 But if the Glens Falls Case did cor-rectly set forth the law in regard to what will be tested by motion forperemptory instruction it was certainly overruled by Utterback'sAdm'r. v. Quick,5 which held that a motion for peremptory instruction,In an action ex contractu, did raise the question of the sufficiency ofthe pleading. In that case the court said:8"If evidence can not be considered without pleading to supportit, then it follows that a motion for a peremptory instruction testsboth the pleading and the evidence . . . 'It is true, as urged, thata motion for a peremptory instruction tests the sufficiency of thepleading as well as the evidence.'"The cases that are cited and which might be cited by the courtas authority for such a decision as in the Glens Falls Case fall readilyinto two classes: first, cases in which the court found that because ofthe particular circumstances the pleadings had in fact been traversed;"" Glens Falls Insurance Co. v. Elliott, 223 Ky. 205, 3 S.W. (2nd.)219 (1928).'Glens Falls Insurance Co. v. Elliott, 223 Ky. 205, 209; 3 S.W.(2nd.) 219, 221 (1928).0Schulte v. L. & N. R.R. Co., 128 Ky. 627, 108 S.W. 941 (1908);Louisville R. Co. v. Hibbitt, 139 Ky. 45, 129 S.W. 319 (1910); Bender v.South, 189 Ky. 623, 225 S.W. 504 (1920); Insurance Co. v. Gore,215 Ky. 487, 284 S.W. 1107 (1926).'Cases cited supra, n. 4.Utterback's Adm'r. v. Quick, 230 Ky. 333, 19 S.W. (2nd.) 980(1929).6 Utterback's Adm'r. v. Quick, 230 Ky. 333, 336, 19 S.W. (2nd.) 980,982 (1929).Carter Coal Co. v. Bays, 183 Ky. 29, 208 S.W. 1 (1919); (see infraKENTUCKY LAW JOURNALsecond, cases in which there had been no objections at all raised inthe lower court.8 Both classes being distinguishable the cases citedas authorities by the court in the Glens Falls Case do not support Itsholding.9But looking at the problem from another viewpoint, if a motionfor a peremptory instruction questions only the suffciency of theevidence, then why can not a party after requesting such instructionsobtain a judgment on the pleading by a motion for judgment notwith-standing the verdict?10 Such a motion is uniformly denied in Kentuckybecause, says the Court of Appeals, the circuit court has determinedthat matter in the prior motion and can not be required to consider itagain in a motion of another form." In so holding the court is, ofnecessity, saying that a motion for peremptory instruction raises thequestion of the sufficiency of the pleading.The statement of the court in the principal case, "... In actionsex contractu and in suits of equity ... a party waives the failure totraverse an affirmative allegation where the case was tried as if theissue had been joined in the pleading, . . ." if applied to the facts ofthat case would be incorrect. On the contrary it is the Jaw in Ken-tucky that in all cases, contract and equity as well as tort, a motionfor peremptory instruction raises the question of the sufficiency of thepleadings. There is no reasonable basis for any distinction in theseclasses of actions, and the Kentucky Court of Appeals, with the excep-tion of the Glens Falls Case, has never made any such distinction.The decision in that case was not in accord with reasoning and author-ity. If it ever was the law in this jurisdiction, it was clearly over-ruled by the Utterbac Case. Therefore, it can not be doubted that amotion for peremptory instruction tests the sufficiency of the plead-ings as well as the evidence and that the rule is the same in actionsof tort, contract, and equity.HAxany W. RoBETs, J.n. 10); Rowe v. Arnett, 241 Ky. 768, 45 S.W. (2nd.) 12 (1931) (Thepleading in two actions were consolidated; thus the court held thatthe issues had been formed.)8 Fitzpatrick v. Vincent, 121 Ky. 185, 88 S.W. 1073 (1905);Hack v. Laskley, 197 Ky. 117, 245 S.W. 851 (1922); Horton's Com-mittee v. Shelman, 245 Ky. 508, 55 S.W. (2nd.) 923 (1932); EdwardBrackhans and Co. v. Gilson, 263 Ky. 509, 92 S.W. (2nd.) 830 (1937).'In Carter Coal v. Bays, supra n. 8, the circuit court treatedthe answer of of the previous trial of the same facts to be the answerof the second trial. The pleadings were controverted as of record.In Fitzpatrick v. Vincent, supra n. 9, there had been no objectionof any kind to the pleadings for the lower court to pass upon. Thesetwo cases are not authority for a holding that a motion for peremptoryinstruction does not test the sufficiency of the pleading in actionsex contractu."Kentucky Civil Code (Carroll, 1938) see. 386."uConnecticut Fire Insurance Co. v. Moore, 154 Ky. 18, 156 S.W.867 (1913); Sheffield King Milling Co. v. Sorg, 180 Ky. 539, 203 S.W.300 (1918); The Franklin Life Insurance Co. of Phila. v. Cook'sAdm'r., 216 Ky. 15, 287 S.W. 553 (1926).

Trial Procedure--Does a Motion for Peremptory Instruction Test the Sufficiency of the Pleading?

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Trial Procedure--Does a Motion for Peremptory Instruction Test the Sufficiency of the Pleading?

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