
    No. 597
    FEILER v. EADS
    Ohio Appeals, 1st Dist., Butler Co.
    No. 372.
    Decided April 25, 1927.
    225. CHARGE OF COURT—
    1. Refusal of court to give special charge requested not error when court gives another special charge which covers all points contained in charge refused.
    2. Improper use of words, “or more satisfactory” with reference to preponderance of evidence not improper where it places added burden against plaintiff, and plaintiff, in spite of added burden, recovers verdict.
    First Publication of this Opinion
   PEE CURIAM.

This was an action for damages, claimed to have been suffered as a result of the purchase of hogs. The petition alleges that plaintiff purchased twenty-four hogs from defendant, upon the representations that said hogs were healthy and free from disease. That said representations were false, the hogs being infected with cholera, and that defendant knew that they were so infected. Damage was claimed in the sum of $1262.20.

Attorneys — Warren Gard for Feiler; W. C. Shepherd for Eads; both of Hamilton. .

Defendant denied all of plaintiff’s allegations, and further alleged that plaintiff knew the condition of the hogs at the time he purchased them. The jury found for the plaintiff and assesesd damages at $167.50.

Plaintiff claims error in refusal of court to give a special charge to jury as requested, and also in part of the general charge which reads as follows:—

“What is meant by a preponderance of the evidence is that the evidence offered for and in behalf of the disputed proposition outweighs or is more satisfactory than that offered to the contrary.”

The court gave defendant’s special charge No. 3, which covered all the matters contained in special charge No. 2, so there was no error in refusing to give special charge No. 2.

The general charge containing the phrase “or more satisfactory” is improper, but the added burden is against the plaintiff below. The plaintiff, in spite of this added burden, recovered a verdict, and the charge could not have been prejudicial to him.

Judgment affirmed.

(Hamilton, PJ., Cushing and Buchwalter, JJ., concur.)  