Mercer v. Ohio Fuel Gas Co. ( 1947 )

By HORNBECK, J.,

concurring.

I concur in the judgment because the proof against the defendant, The Ohio Fuel Gas Company, failed in two of the essentials of the case, as pleaded. First, that the enamel which was put on the pipe as a second coat was, in whole or in part, a coal tar product.' Second, that it was poisonous to hogs. Without the second of these elements of proof no possible case could be made against the Gas Company in view of its contractual relation as independent contractor with defendant, Smith.

The testimony of Dr. Trehearne, if it had been admitted and it had appeared that his answer to the question which was held to be objectionable would have been in the affirmative, would not supply the basic deficiency in the proof adduced by the plaintiff.