Schafer v. Youngstown Muni Ry Co. , 19 Ohio Law. Abs. 205 ( 1935 )

CONCURRING OPINION

ROBERTS, J,

concurs,

But says that he does so with reluctance, because the issue was determined on the sustaining of a demurrer to the petition, which petition was largely composed of considerations of fact, that it is largely a matter of conjecture as to what the issues would have been had the petition been tested by a motion to make more definite and certain. The courage of counsel to rely on conclusions for test by demurrer may be admirable, but judgment in so doing is more doubtful. The case of plaintiff on petition when made to conform to rules of pleading might be very different.

As is recalled, the oral argument was largely devoted to what it was claimed the evidence would be rather than to what the allegations of the petition were as- to whether or not it alleged a cause of action.