(dissenting).
The opinion in tMs case, as is- conceded, upholds the judgment of the lower court, not because it is *700right, but because there have been three jury trials of the cáse, at each of which a verdict was returned in favor of the plaintiff. Two of the judgments based upon these verdicts were reversed. The first reversal was for errors of law, although' the court in that opinion said that the verdict was flagrantly against the evidence. The second reversal was because the verdict was. not sustained by the evidence. Upon this last appeal the court was again asked to set aside the verdict because it was not sustained by the evidence. Upon the second trial the verdict was for $6,000; upon the last, for $11,500. The evidence upon each trial was practically the same. This court, while admitting the justness of defendant’s cause, denies relief, because to grant it wlould violate the rule of procedure as laid down in the ease of Louisville & Nashville Railroad Company v. Graves’ Assignee, 78 Ky. 74, and other eases in which' the doctrine therein announced has been followed.
The opinion in the Graves Case is bottomed upon two propositions: First, the former rule of practice of this court, as announced in the Doughierty and other cases; and, second, section 341 of the Civil Code of Practice as construed in that opinion. If the opinion in the Graves Case, above referred to, is correct, the court has reached' a proper conclusion; but it is my contention that the right to a reversal and new trial in this case is regulated by statute, and not controlled by the Graves Case, or any other case which is not in accord and harmony with the plain provision of the statute. This statute was passed by the General Assembly in 1877, and is now section 341 of the Civil Code of Practice, and is as follows: “A new trial shall not be granted on account of the smallness of damages in an action for an *701injury to the person or reputation, or in any other action in which the damages equal the actual pecuniary injury sustained; nor shall more than two new trials be granted to a party upon the ground that the verdict is not sustained by the evidence.”
Two years after the passage of this act this court had under consideration the Graves Case, which was then here on the third appeal, and refused to reverse it on the ground that the verdict was against the evidence, although there had theretofore been no reversal upon this ground1; the two previous reversals having been for errors of law. The court in that opinion said: “It is true the reversals of this case have been upon questions of law1; but the fact still remains that there have been three findings in the same way upon the same evidence, and, while the case may not be within the letter, it is clearly within the spirit of the statute, and it is also within a rule laid down in the decisions of this court prior to the enactment of this statute.” The decisions referred to, as establishing in part the basis upon which the opinion rested, were those of Dorsey v. Dougherty, 1 A. K. Marsh. 183, and Bennett v. Runyon, 4 Dana, 422.
Of the two verdicts referred to in the Dougherty Case, one had been set aside by the trial judge for the reason that one of the jurors who sat in the trial was discovered to be under 21 years of age. The verdict supporting the judgment from which the appeal was prosecuted is the one referred to in the opinion. Each verdict had been in favor of the plaintiff. It was the contention of counsel for appellant that a hearing with but 11 jurors was not a trial' within the contemplation of the statute, and that it should be disregarded; that appellant was entitled *702to two trials by legally constituted juries before the statutory inhibition should be applied; and in a most thorough, exhaustive, and to my mind unanswerable petition for rehearing, Judge Bibb, representing appellant, among other things, said: “The controlling power of the courts over ■ juries by granting new trials is necessary for the purposes of justice. Juries are'liable to various influences, operating severally upon each juror, by veins and pulsations too minute to be discovered singly, but visible when united in the body of á verdict, against the sober opinions of the court of original and appellate jurisdiction, and found against the weight of the evidence. The latitude given to this controlling power by the statute before recited is not too great for the attainment of justice against the popular impulse to the jury on the one hand, and to set a' due restraint and safeguard upon the courts on the other. By narrowing the limits by the rule of decision as contained in the opinion, the judiciary will be semiemasoulated by its own hand. Such a rule of decision is seemingly contrary to law, by prescribing a tule to the courts below different from' that declared by the Legislature. ’ ’ This petition was overruled without comment.
• ' In 1836 the Dougherty Case was approved in the case of Bennett v. Runyon, 4 Dana, 422, which was in many respects similar to it. There had been a verdict in favor of the plaintiff in an ejectment suit. This verdict was set aside by the trial judge, and upon a retrial the plaintiff again recovered a verdict. This the trial judge refused to set aside, and, upon appeal here, the judgment was affirmed on the authority of the Dougherty Case. A reversal was refused for the reason assigned in the Dougherty Case. In both of. these cases, which were referred to and.relied upon *703by the court in the Graves Case as establishing the court-made rule, the court was controlled by a statute then in force, being section 38 of chapter 264 of the Acts of 1796, entitled: “An act to reduce into one the several acts for preventing vexatious suits, and regulating proceedings in civil cases.” Said section is as follows: “Not more than two new trials shall be granted the same party in the same cause.”
While, to my mind, the court undoubtedly was in error in the Dougherty Case as to what constituted a trial within the meaning of the statute, nevertheless both of these opinions were rested upon the statute; and this being true, and the statute no longer being in force at the time when the opinion was written in the Graves Case, these opinions were not applicable, and should have exerted no controlling influence in determining that case. By the act of 1877, which is section 341 of the Civil Code of Practice, the Legislature sought to abridge, or at least, modify, the rule of practice which in the Graves Case is termed the “established rule of practice.” This must have been the purpose of the act, else the Legislature was doing a vain and useless thing. There was no earthly necessity for the passage of this law, if it was not intended to change the rule of practice upon appeals in that class of cases where the verdict is not supported by the evidence, and to provide a rule of procedure in such cases different from that which the court had theretofore followed; and yet, although this was the clearly expressed legislative purpose and intent, we find that the court in the Graves Case so construed it as to make it conform to the requirements of the rule of practice as it had theretofore existed, thus completely nullifying and destroying the purpose of the legislative act. The *704Graves Case was an old offender. It had been a long time pending in court. On each of the former appeals it had been reversed for errors of law and which upon each reversal the court had said that the verdict was not supported by the evidence, still the reversals, as above stated, were for errors of law. Upon the third appeal Judge Cofer, writing for the court, said that the case came within the spirit, if not the letter, of the law as laid down in section 341, above referred to, and also within a rule laid down by the court before the adoption of the statute, and a reversal was therefore denied.
As we have shown, the previous rule of practice, upon which the court in part rested its opinion, had no application whatever; for the opinions there referred to as establishing this rule were based upon a statute which had been repealed, and hence the opinion is left to rest upon the construction which the court gave to section 341 of the Civil Code of Practice. In place of accepting this statute as written and conforming the court’s opinion to the requirements of this statute, the court chose rather to place such a construction upon the statute as would make it conform to a line of decisions of this court written under an obsolete statute; and in this lies the fault of the Graves Case. In- order to make section 341 mean what the court in the Graves Case says it means, there must be read into it an entire sentence, to wit: “Or that the verdict is not sustained by the evidence coupled with other causes” — so that the court-made statute reads: “Nor shall more than two new trials be granted to a party upon the ground that the verdict is not sustained by the evidence, or that the verdict is not sustained by the evidence coupled with othes causes.” If the Legislature had *705meant that, it should have said so; and its failure to so enact this statute is the best evidence that it did not so intend. It is a primary rule of construction, in arriving at the legislative intent, that a statute unambiguous in its terms must be given that meaning which the ordinary reading of its language warrants. Words are to be taken in their ordinary, usual, and familiar acceptation and meaning, and what they thus convey when so used must be taken as the expression in its entirety of the legislative intent. A statute unambiguous in its terms is not open to construction; but it is the duty of the court to conform' its opinions to the plain meaning of the statute as written.
Such is th'e rule of interpretation in the federal court, and in the State courts of last resort, and especially in our court, where no • rule has been more clearly announced and firmly fixed. In the early case of Clay v. Hopkins, 10 Ky. 485, decided in 1821, this court said: “It is certainly proper in some cases to resort to the reason of a law for the purpose of discovering the intent of the Legislature. This may be done where there is an ambiguity arising from the use of words of doubtful import, or from an apparent conflict between the different provisions of the law; but it cannot be done with propriety where there is no such ambiguity, and with respect to the acts in question it cannot be pretended that there exists any such ambiguity. The words used by the Legislature are clear and unequivocal in their import, and do not admit of .a different construction, and in such-case the Legislature must be taken to mean what they say, and nothing more or less; for where there is no ambiguity there can be no room for construction.” And again, in the case of Robertson v. Robertson, *706100 Ky. 696, 39 S. W. 244, 19 Ky. Law Rep. 29, decided in 1897, Chief Justice Lewis, speaking for the court, said: “When a statute is plain and peremptory, there is nothing for the court to do but enforce it as it is written.”
The statute being plain and unambiguous in its terms, it was not open to construction. It needed no judicial intepretation. It stated in plain language, that could not be mistaken, and that was not susceptible of any dual meaning: “Nor shall more than two new trials be granted to a party upon the ground that the verdict is not sustained by the evidence. ’ ’ II will be observed that the Legislature used the word “ground,” showing plainly that it had in mind a singular subject. Had it been contemplated that this act was to apply as the court in the Graves case applied it, the Legislature would not have confined the wording of the statute to a single cause for which “not more than two new trials” should be granted.
It may be argued, as it was argued in the Graves case, that this act was passed, as was the act of 1796, for the purpose of regulating or preventing vexatious litigation, and for that reason the court, in applying the statute, is justified in looking to the spirit, rather than following the letter, of the law; but such a practice has been expressly condemned by this court in a long line of decisions, in which it has been held that with the policy or wisdom of the statute the court has no concern, but that these are matters that must address themselves exclusively to the Legislature. In the case of Bosley v. Mattingly, 14 B. Mon. 90, this court said that where the intention of a statute is clear and explicit, and its provisions susceptible of but one interpretation, the evil, if any, must be corrected by the Legislature, and not by the judiciary; *707and the doctrine therein announced was followed with approval in the case of Brace v. Shaw, 16 B. Mon. 80, and in a number of more recent decisions.
In the case of Witte v. Koeppen, 11 S. D. 598, 79 N. W. 831, 14 Am. St. Rep. 826, where the construction of a statute was under consideration, the court said that: “In construing a statute a court is not at liberty to disregard its plain and express terms upon any theory as to its spirit. When it is plain and unambiguous courts are not permitted to search for its meaning beyond the statute itself.” And in the case of Chase v. Swayne, 88 Tex. 218, 30 S. W. 1049, 53 Am St. Rep. 742, the court said that: “It is a legitimate and recognized rule of construction for a court, in interpreting the Constitution and statutes, to find out their true meaning from the language used, the subject-matter, and purposes of those framing them; but to ingraft upon a Constitution or law something that has been omitted, and which the court believes should have been embraced, is judicial legislation.” And in the case of in re Walker’s Estate, 110 Cal. 387, 42 Pac. 815, 30 L. R. A. 460, 52 Am. St. Rep. 104, in construing a statute, the court said that:. “The duty of the court is simply to ascertain and declare what is in substance or terms declared therein, not to insert what has been omitted, nor to omit what has been inserted.” Authorities might be cited in support of this proposition almost without number, and through them all there is a uniformity of expression to the effect that courts will not be permitted to usurp that power which the Constitutions, State and Federal, have reposed in the respective Legislatures. Thus the fundamental error in the Graves case lies in the fact that the court gave to the statute a meaning *708much broader and entirely different from that which its terms authorized.
But aside from this, it seems to me, with all due respect to the court, and especially the learned judge who wrote that opinion, that its logic is faulty and the conclusion reached is unsound. In fairness to the juries it should be said that, before they are criticised for returning verdicts not supported by evidence, they should have the case fairly presented and the law correctly given to them. It' is unreasonable to demand1 of the jury that it shall reach a proper and just conclusion based upon faulty premises; and no case should ever be reversed, because the verdict is not supported by the evidence, when substantial errors of law have been committed during the progress of the trial. Until the substantial errors of law have been eliminated it is impossible to tell what the verdict would have been; for, if the jury has reached one conclusion under a given state of facts, it is fair to presume that the same jury would, under a different state of facts, have reached an entirely different conclusion. Jurors want to arrive at the right of every case, and they have no opportunity to do so until the facts are properly presented upon which to base their finding, and the law correctly given by the court to serve as their guide in properly applying the facts. Hence I say that, when the court says that three juries have reached the same conclusion under the same evidence, it overlooked the fact that the law which had been given two of those juries, to serve as a guide to them, in applying the facts, had been wrong; and they could not in reason be expected to reach a proper conclusion while following the law as given by the trial court, and which, upon appeal, this court had said was wrong.
*709It has been written by this court, and is the law, that any number of new trials may be granted for errors of law1; and this rule would be of universal application, but for the statute under consideration. In the absence of section 341, any number of new trials could be granted because the verdict was not supported by the evidence, and in applying this statute the court, in furtherance of justice in oases where required, should grant at least two new trials where the verdicts are not supported by the evidence, and where this alone is the ground upon which a reversal is sought. The object of courts is to see to it that justice is done, and in all fairness and reasonableness it should be held1 that no strained construction should be placed upon a statue which would tend to defeat this end'. It is admitted that the application of the construction applied to this statute in the Graves case, above referred to, even though it countenances what appears to be a gross injustice, must deny to appellant any further right of redress. This principle is repugnant to every idea of right and justice, subversive of the best interests of government, aud one that must ultimately bring the judiciary into, disrepute. Statutes should be literally interpreted, and the opinions of the court made to conform to. the statutes when so interpreted. The fundamental principle, upon which the whole theory of our government rests, renders such an interpretation necessary; and the preservation of the three departments of government in their simplicity and integrity can in this way alone be secured. Any attempt on the part of the court to read or interpolate into a statute a meaning other than that which its language plainly imports is an unwarranted encroachment upon the rights and prerogatives of the Legislature, and is an inexcusable *710usurpation of power. In disregarding this statute, and in attempting to place upon it a construction that in effect nullifies it,' and makes it conform to the opinions of the court written under a statute which was radically different from section 341, the court in the opinion in the Graves case erred, and that opinion, in my judgment, should be overruled, as should all cases which have followed it. If the principle therein expressed is wrong, the sooner it is departed from the better. The court can make no mistake by getting right, and no question is ever truly settled' until it is. decided right. The course of the law is upward, its aim perfection, and, while this may never be reached, it can at least be approached unto. The doors of the temple of justice should never be closed to those seeking relief until the plain, mandate of the law denies them further hearing.
Judge Barker concurs in this dissent.