
    BUTLER, Plaintiff-Appellee, v. CORNUTE, d. b. a. CORNUTE SERVICE STATION, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4633.
    Decided September 11, 1951.
    Decided September 25, 1951.
    Hamilton &¡ Kramer, Joseph R. Hague, Columbus, for plaintiff-appellee.
    Edmund B. Paxton, Asst. Pros. Atty., Columbus, for defendant-appellant.
   OPINION

By THE COURT.

We have examined the record in this case and carefully considered the law applicable thereto. In our opinion there was evidence of sufficient probative force to support the judgment. Finding no error in the record prejudicial to the rights of the appellant the judgment is affirmed.

HORNBECK, PJ, WISEMAN & MILLER, JJ, concur.

ON APPLICATION FOR REHEARING

No. 4633.

OPINION

By THE COURT.

Submitted on application for rehearing. Counsel for appellant request the court to specifically pass on the assignment of error, which is:

Did the court err in overruling the motion to dismiss at the conclusion of plaintiff’s case?

This particular assignment of error is not well made because the defendant-appellant after the motion to dismiss was overruled proceeded to and did present evidence in defense. Thus the defendant-appellant waived his right to predicate error on the ruling of the court on the motion. The motion to dismiss being renewed at the end of the case raised the question as to whether upon all the evidence introduced there was sufficient evidence to sustain plaintiff’s case. See Vol. 39 O. Jur., pgs 872 and 873 and cases cited in support of the text, particularly Traction Co. v. Durack, 78 Oh St 243, and Halkias v. Wilkoff Co., 141 Oh St 139.

The application will be denied.

HORNBECK, PJ, WISEMAN & MILLER, JJ, concur.  