Great Atlantic & Pacific Tea Co. v. Custin
| Decision Date | 28 April 1938 |
| Docket Number | No. 26981.,26981. |
| Court | Indiana Supreme Court |
| Parties | GREAT ATLANTIC & PACIFIC TEA CO. v. CUSTIN. |
OPINION TEXT STARTS HERE
On petition for rehearing.
Petition denied.
For former opinion, see 13 N.E.2d 542.
Transferred from the Appellate Court January 10, 1938, under section 4-218, Burns' Ind.St.1933.Appeal from Superior Court, Porter County; Mark B. Rockwell, judge.
Geo. E. Hershman and Russell A. Nixon, both of Crown Point, for appellant.
Daly & Freund and Ray A. Pillard, all of Valparaiso, for appellee.
In its petition for a rehearing the appellant has directed the court's attention to the fact that one specification of the motion to strike out parts of the complaint was sustained. This fact was overlooked by the court in writing the original opinion. The clause striken from the complaint is the allegation that the manager had been injured previously by coming in contact with the crate. As pointed out in the original opinion, the evident purpose of this allegation was to show notice to appellant. It need not be in the complaint because there are other facts alleged from which the appellant knew, or should have known, of the existence of the metal piece. The allegation is unnecessary to the sufficiency of the complaint or a decision of the cause. Appellee testified as to the existence of the metal, and detailed her conversation with appellant's employee. If necessary, which it is not, this court will deem the complaint amended to conform to the evidence. The injury was sustained in appellant's store where its employee should have notice of existing conditions. The complaint was sufficiently specific to apprise appellant of appellee's charge and demand.
Appellant most earnestly insists that the judgment should be reversed because it was not sustained by sufficient evidence and that the court erred in giving the instructions discussed in the original opinion. It contends also that the demurrer to the complaint should have been sustained. A further examination of the record convinces the court that no error was committed in these respects, and that the questions are discussed fully in the original opinion.
The petition for a rehearing is denied.
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...whether or not one's burden of proof has been met, simply means the "greater weight of the evidence." Great Atlantic and Pacific Tea Co. v. Custin, (1938) 214 Ind. 54, 61, 14 N.E.2d 538. To say, then, that in some cases the evidence must overcome opposing presumptions as well as opposing ev......
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