Kinney v. Miller

Felton, Chief Judge.

Regardless of whether the court’s ruling as to what the plaintiff had to prove to recover punitive damages in a default case was correct or incorrect, the plaintiff was given a choice between continuing his case according to the expressed theory of the court—with a resulting uncertainty as to what he must prove, unpreparedness to prove what was required to be proved and apprehension of an adverse judgment—and dismissing his case without prejudice. Finding himself in the dilemma of having to produce proof of allegations which he had assumed to have been established by the…