Shirey v. Schlemmer

Dissent on Petition foe Rehearing.

Bierly, J.

— I would grant the petition for rehearing in the above entitled case.

The appellant contends that the giving of the appellee’s Instructions Nos. 3, 4, 5 and 7 was prejudicial to the appellant. I quote the opinion relative to the giving of these instructions :

“It is the opinion of this Court that the trial court should not have tendered the appellee’s instructions Nos. 3, 4, 5 and 7 to the jury. These instructions withdrew from the jury specifications B, C, D, and F of paragraph 3 of the appellant’s complaint which alleged in substance that the…