
    Smith v. Ward.
    
      (Decided March 13, 1929.)
    
      Mr. W. Clay Huston and Mr. Meade C. Robinson, for plaintiff in error.
    
      Mr. Forrest G. Long, and Mr. H. H. Needles, for defendant in error.
   Justice, J.

Plaintiff in error, Walter E. Smith, was plaintiff, and defendant in error, Robert Ward, was defendant, in the trial court. Hereafter, in this opinion, they will be referred to as plaintiff and defendant. The judgment, which this proceeding in error reviews, was entered in the court of common pleas of Logan county upon a verdict for defendant in an action brought by plaintiff against defendant to recover damages for the alleged malicious killing’ by defendant of two hounds, the property of plaintiff.

Five claims of error are assigned:

First, error of the trial court in sustaining a demurrer to the petition.

Second, error of the trial court in permitting defendant to amend his answer after plaintiff had rested his case in chief.

Third, error in the admission of testimony.

Fourth, error in the charge.

Fifth, verdict and judgment not sustained by sufficient evidence.

In his petition, plaintiff, in substance, alleged that on the 31st day of March, 1927, he was the owner of two stock-trained, thoroughbred hounds of the value of $300; that he kept said hounds in a kennel at his home; that on said day said hounds escaped from their kennel and were at large; that said hounds neither injured defendant nor his property; and that defendant, while said hounds were at large on said day, maliciously shot and killed t¿em . The defendant demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer and ordered the plaintiff to amend his petition by interlining the following allegation: “That the dogs did not chase or worry sheep or other domestic animals of the defendant.” The plaintiff excepted to said ruling of the court, but complied therewith.

It is urged, as the first claim of error, that the trial court erred in sustaining the demurrer and in ordering the amendment. This contention, as we see it, is not now open to inquiry. The plaintiff did not elect not to further plead, and did, not permit final judgment to be entered on the demurrer and prosecute error therefrom, but, to the contrary, he elected to amend his petition, as ordered by the trial court. By doing so, plaintiff waived the claimed error. Bingham v. Nypano Rd. Co., 112 Ohio St., 115, 147 N. E., 1.

At the close of plaintiff’s evidence in chief, the trial court, over an exception of plaintiff, permitted the defendant to amend his answer by setting up therein, as a second defense, the following new matter: “If the dogs were the property of W. E. Smith, the plaintiff, then that said dogs were dogs that were chasing and worrying the sheep of said defendant and worrying the children of defendant # * * JJ

It is insisted, as the second claim of error, that the trial court erred in permitting this amendment. This proposition is without merit. Clearly, Section 11363, General Code, authorized the amendment. It does not appear that plaintiff was taken by surprise or that he was unprepared to meet the issue tendered. He did not even so much as request a continuance. In such a state of the record the trial court very properly proceeded with the trial of the case.

The third claimed error pertains to the admission of testimony. Lee Barthaur and H. I. Staley testified that on two occasions prior to March 31, 1927, they saw two hounds at large; they described them. After plaintiff’s hounds were killed, Barthaur saw one of them; he identified the hound as one of the two hounds which he had seen at large. Staley told the court and jury that the hounds which he saw he took to be the hounds owned by the plaintiff. There is, therefore, some evidence tending to prove that the hounds which these witnesses had seen prior to March 31 were the hounds of plaintiff. Barthaur testified that the hounds which he saw were in a field in which his sheep were then being kept; that he shot at them; but he did not testify that the hounds were chasing, worrying, injurying or killing his sheep. Staley testified that the two hounds which he saw came from the county line into his yard; that they were hounds which apparently had been shut up, and that they were not man shy. Not one word of testimony did he give tending to show that the hounds were chasing, worrying, injuring or killing sheep, domestic animals or a person or persons. Obviously the testimony of these witnesses did not tend to prove that these hounds were in the habit of chasing, worrying, injuring or killing sheep, domestic animals, or persons, and, in our opinion, it was reversible error for the trial court, upon plaintiff’s request that it do so, to refuse to instruct the jury that such testimony did not tend to prove the alleged justification, and to refuse to limit the purpose, if, in fact, any purpose there was, for which such testimony was received.

The fourth claimed error alludes to the charge.

An examination of the charge discloses that the trial court put the burden of proof upon the plaintiff to prove that the hounds did not chase, worry, or injure the sheep or other domestic animals of the defendant. This was wrong. Later in the charge the trial court placed upon the defendant the burden of proving the allegations set up in the second defense of his answer. This was right. But who can tell which rule the jury followed? No presumption exists that the jury followed the correct rule to the exclusion of the incorrect one.

In Pendleton Street Rd. Co. v. Stallmann, Admx., 22 Ohio St., 1, our Supreme Court held: “Although an erroneous instruction given to the jury be afterward qualified by using apt words to express the true rule on the subject, yet if, upon the whole charge, it be uncertain what the rule given, or intended to be given, in fact, was, the judgment should be reversed, for the reason that the jury may have been misled thereby.”

This assignment of error is, therefore, well taken.

The last assignment of error relates to the sufficiency of the evidence.

Counsel and the parties are well acquainted with the facts in this case. It will, therefore, be neither interesting nor profitable for us to set them forth at length. Suffice it to say a sharp conflict exists in the oral testimony on some of the questions in issue, and well might different minds, in weighing it, come to different conclusions. Questions of fact, however, are for the triers of the fact, in the instant case the jury. Painesville Utopia Theatre Co. v. Lautermilch, 118 Ohio St., 167, 160 N. E., 683. There is no evidence tending to prove that the jury misunderstood the facts, was biased, or willfully disregarded its duty. The rule of law announced in Dean v. King, Pennock & King, 22 Ohio St., 118, 134, is, therefore, controlling.

Applying this rule of law to the facts as disclosed by the record, we are constrained to say that this assignment of error is not tenable.

Holding these views it follows that the judgment of the court of common pleas should be reversed.

Judgment reversed and cause remanded.

Hughes and Crow, JJ., concur.  