
    No. 287
    COLUMBUS, DEL. & MARION ELEC. CO. v. EARLY
    Ohio Appeals, 2nd Dist., Franklin County
    No. 1121.
    Decided March 27, 1924
    480. EVIDENCE — Insufficiency of evidence to support an averment distinguished from a total lack of evidence — Chemical Co. v. Smith, —8 OA. 361 construed.
    Attorneys — W. P. Moloney, for Electric Co.; Belcher & Connor and H. P. Nester, for Early; all of Columbus.
   BY THE COURT.

Epitomized Opinion

Published Only in Ohio Law Abstract

Early, as administrator, sued Eleceric Co. to recover damages for the death of E. S. Early, alleging as one of the grounds of negligence a defective pilot. The evidence failed to support this allegation by the verdict of the jury. The court held that it was* 1 not error to submit this issue to the jury, since the judgment might stand upon one or both of the other assignments of negligence. This is an application for a rehearing and a request to certify the case to the Supreme Court on the ground that it is in conflict with the decision in Chemical Co. v. Smith, 80A. 361, that where a petition contains two allegations of negligence, but no evidence is offered supporting one of the allegations, it is error to permit both questions to be submitted to the jury. In refusing a rehearing, and overruling the motion to certify the record, the Court of Appeals- held:

1. “Insufficiency of evidence to support an averment is quite different from a total lack of evidence. The decision in the Smith case involved a total lack of evidence as well as a total lack of averment upon one charge of negligence. In the case at bar, the charge of negligence in reference to defective construction of the pilot was properly submitted to the jury.”  