Francis v. Ohio Fuel Gas Co.

16 Ohio Law. Abs. 447

• Court: Ohio Court of Appeals
• Decided: February 7, 1934
• Docket: No 675
• Status: Published

Opinion

OPINION

By STEVENS. J.

The cause is before this court upon error proceedings from the Court of Common Pleas of Lorain County, in which court the parties stood in the same relation as they here appear.

The only question presented is the propriety of the ruling of the lower court in sustaining a demurrer to plaintiff’s second amended petition, after which ruling judgment in favor of defendant was entered, by reason of plaintiff’s refusal to plead further.

The well settled rule in Ohio is that a demurrer admits the truth of the traversable allegations of the pleading demurred to.

Hance, Exr, v Hair, et, 25 Oh St 349.

But only so far as is necessary to determine the question raised and no further.

Bush et v Critchfield et, 5 Ohio 109.

It admits not only what is expressly alleged, but also whatever' can, by fair and reasonable intendment, be implied from the allegations,

Roberson, Etc, v Rochester Folding Box Co, 171 N.Y. 538.

Applying these rules to the instant case, we are unanimously of the opinion that the petition of the plaintiff does state a cause of action against defendant, and that the trial court should have overruled defendant’s demurrer.

For error in sustaining the demurrer of defendant, the judgment will be reversed and the cause remanded for further proceedings in conformity to law.

WASHBURN, PJ, and FUNK, J, concur in judgment.