Deig v. General Insurance Co. of America

STONE, Judge

(concurring in result).

Agreeing that, viewed in the light most favorable to plaintiff, the record affords no evidentiary support for plaintiff’s pleaded theory that defendant was indebted for work and labor done and material furnished which “was ordered by the defendants,” or for plaintiff’s submission in instruction 1 on the hypothesis that Wilson “made an agreement with plaintiff for the plaintiff to direct the repairs of the England automobile,” I concur in the conclusion that the cause must be reversed and remanded for new trial. But, apprehending that it is neither my function nor province in this jury-tried case to indicate my personal views as to the merits, I concur in result only, content to leave determination of contested factual issues to the triers of the facts under proper instructions, if, upon an amended petition, plaintiff makes a submissible case on his then pleaded theory.