California, United States of America
The following excerpt is from Lysick v. Walcom, 258 Cal.App.2d 136, 65 Cal.Rptr. 406 (Cal. App. 1968):
A perusal of the cases which have applied the foregoing rule discloses that the rationale the forgoing rule discloses that the rationale underlying the rule is that an appellate court will not disturb a general verdict merely because the trial court gave an abstractly correct instruction which the facts before it did not warrant or because the trial court submitted a count or issue to the jury without any evidence to support it and with instructions inviting a verdict upon it, provided that Another theory on which the case was submitted to the jury finds substantial support in the evidence and is unaffected by error. This situation does not prevail in the present case because there was no theory or basis of liability at all which should have been submitted to the jury for their determination since defendant's negligence existed as a matter of law and the only issue which remained for the jury's consideration was whether there was a proximate causal connection between the negligence and the injury complained of. (See Huebotter v. Follett, 27 Cal.2d 765, 770, 167 P.2d 193.)
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