Whichard v. Lipe

Plaintiff elected to allege that defendant Tilley (who was not served with summons) was operating defendant’s truck at the time it allegedly collided with the truck occupied by plaintiff’s intestate. Expressio facii cessare taciturn. There is no evidence tending to support this allegation. Plaintiff so understood and during the trial took the position that some agent of defendant was driving but declined to say which one. The court likewise so understood and more than once charged the jury “there is no evidence in this case as to who was operating the truck known as the Lipe truck.” Non…