
    No. 375
    SULLIVAN v. ALFORD BROS.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1268.
    Decided March 12, 1925.
    923. PLEADINGS—1. When averments are not inconsistent, election is not necessary.
    2. Compulsory election of either the averment of agency or incompetency of driver, held to be erroneous.
    Attorneys—Cecil J. Randall for Sullivan; E. N. Huggins and W. H. Liggett, for Alford; all of Columbus.
   BY THE COURT.

This action was brought in the Franklin Common Pleas by Carl Sullivan by his next friend, in which it was sought to recover damages sustained by Carl for injuries to him when he was struck by a truck owned by Alford Bros, and driven by Milo Alford, the son of one of the brothers. The petition contained the averments that Milo Alford was the agent of the partnership, that he was sixteen years of age and unskilled in the use and operation of the truck and that the injury to Carl Sullivan was due to negligence in management and control of the truck.

On hearing, the trial court sustained a motion to compel Sullivan to elect whether he proceed upon his specific charge of agency or upon the charge of the incompetency of the driver. At close of plaintiff’s evidence, the court sustained a motion for non-suit on the ground that there was no evidence tending to prove agency. Error was prosecuted and the Court of Appeals in reversing the judgment of the lower court held:

1. It is only where two charges or causes of action are clearly inconsistent that the court will compel an election.

2. There was no such inconsistency between the charge of agency and that of the incompetency of the driver.

3. The proving of either of these charges would not necessarily disprove the other.  