
    ANIMALS — EVIDENCE—PLEADING.
    [Hamilton (1st) Circuit Court,
    January 6, 1912.]
    Smith, Swing and Jones, JJ.
    
      Leopold Kleybolte v. Clifford D. Buffon, a Minor.
    Averment of Viciousness of Dog or Knowledge thereof by Owner not Prerequisite to Recovery for its Bite.
    An allegation that a dog was vicious or that, its vicious disposition was known to the owner is not prerequisite to recovery of damages for injuries resulting from its hite under Gen. Code 5838; evidence of its character as to viciousness is admissible.
    Error to common pleas, court.
    
      Kramer & Beitman, for plaintiff in error.
    
      L. H. Pummill and J. A. Budel, for defendant in error.
    Cited and commented upon by the following authorities: Simpson v. McCaffrey, 13 Ohio 508; Roberts v. Mason, 10 Ohio St. 277; United Poiver Co. v. Matheny, 81 Ohio St. 204 [90 N. E. Rep. 154] ; Hayes v. Smith, 62 Ohio St. 161 [56 N. E. Rep. 879] ; Toledo, St. L. & W. Ry. v. Burr, 82 Ohio St. 129 [92 N. E. Rep. 27].
    
      
      Affirming, Buffon v. Kleybolte, 22 Dec. 362
    
   SMITH, P. J.

As R. S. 4212-2 (Gen. Code 5838) now reads, it is not necessary that the petition in this case should have stated that the dog owned and harbored by plaintiff in error was vicious and that this viciousness was known to the owner.

We see no error in the admission of evidence as to the character of the dog, whether or not he was or was not a vicious animal, nor in the charge of the court upon the question of damages. Under the facts as disclosed by the record we think the special charges and general charge correctly state the law in the case.

The verdict for $366 is not excessive.

The alleged misconduct of counsel for defendant in error in his address to the jury can not be considered by this court under the ease of State v. Young, 77 Ohio St. 529 [83 N. E. Rep. 898], where it is held, that “remarks of counsel in addressing a jury, to be the predicate of a 'proceeding in error on the ground of misconduct, must be brought into the record of the trial by the certificate of the trial judge, as are other matters occurring u$on the trial and in his presence. They can not be introduced by affidavit.”

As there are no errors in the record the judgment is affirmed.

Swing and Jones, JJ., concur.  