
    Titus et al. v. Lewis.
    1. A judgment, rendered on the second trial of a case, can not be reversed for error intervening only on the first trial.
    2. A material averment in an answer, not denied in the reply, must be taken as true; and, therefore, a charge to the jury that the burden of proving it, on the trial, rests on the defendant, is erroneous.
    3. A party performing a lawful act, is not responsible for injury arising therefrom, unless it be occasioned by his own negligence, carelessness, or wantonness.
    4. The burden of proof is upon the party claiming that the injury was done, to show that it was occasioned by negligence, carelessness, or wantonness.
    6. In doing only what the law authorized him to do, the party will bo pre sumed to have acted in a lawful manner, until the contrary is shown.
    
      Error, to the District Court of Meigs county.
    The original action was brought by Penelope Lewis,, against Samuel N- Titus and Calvin Hutchins, to recover damage for wrongfully taking, on the Meigs county fair grounds, certain specified goods and chattels (being the stock of a booth for eating and drinking), belonging to her, of the value of two hundred an sixty dollars.
    Titus and Hutchins answered, setting up, as a special defense, that Titus was the president of the Meigs County Agricultural Society, and that Hutchins wTas a servant of the society; that the society was holding a fair on the grounds belonging'to the society; that Mrs. Lewis entered, into an agreement with the proper officers of the society for the keeping of a booth, on the fair grounds, for the sale-of articles to eat and drink, other than malt, vinous, and spirituous liquors; and agreed that if she brought any such liquors on the fair grounds, to sell or give away, her right to keep such booth should be forfeited, and that the officers of the society might remove her entire stock of goods from the grounds; that she brought whisky on the grounds, and sold it there, in violation of the agreement; that thereupon Titus, as such president, directed her to-remove her goods from the grounds, and upon her refusal so to do, ordered Hutchins to remove the same, which,, they aver, was done by him in a careful manner, doing no-unnecessary damage or injury thereto, and placed them on the outside'of the fair grounds, where they were left; and they deny any other taking or injury of the goods.
    Mrs. Lewis replied, denying that she made any such-agreement; and denied that she sold or gave away any whisky on the fair grounds.
    The case was tried to a jury, which resulted in a verdict and judgment against the defendants below. On the trial they excepted to the rejection of certain evidence offered by them, which is now assigned for error. But they took a second trial, as allowed by the statute, on which they gave evidence tending to prove all the matters set up as a special defense, and asked the court to charge, that if they found such matters to be true, “ then the said defendants, as officers and servants of said society, had a right to remove her goods outside of said fair grounds, and that, in such case,’ the burden of proof was on the plaintiff, to show that the injury to, or loss of, the goods was caused by the negligent, careless, or other wrongful act of defendants, and was not the necessary result of such removal; which charge, as to the burden of proof, the court refused to give, but did charge that the burden of proof was on the said defendants, to show not only that said contract was made and violated by said plaintiff, but also to show that they removed the said goods in a careful manner, and that no unnecessary damage resulted to said property by such removal.” To which refusal to charge, and to the charge as given, the defendants excepted; and, after judgment against them, filed their petition in error in the district court, where the judgment was affirmed. To reverse these judgments, this petition in error was prosecuted in the Supreme Court.
    J. and J. Bradbury, for plaintiff in error, cited:
    
      Lansing v. Stone, 37 Barb. 15; Story on Bail. 344; Coombs v. Lane, 4 Ohio St. 148; Ward v. Barrow, 2 Ohio St. 247; Sher. & Red. on Neg. § 12; 2 Par. on Cont. 125 ; McCully v. Clark, 40 Penn. 399; 1 Hill on Torts, 121; Tourlettot v. Rosebrook, 11 Met. 462; Am. Law Rev. (Jan. 1871), 210; Curtis v. Railroad Co., 18 N. Y. 535; Holbrook v. Railroad Co., 12 N. Y. 242; Starkie on Ev. 362; 1 Greenl. Ev. § 74; 25 Ind. 436.
    
      J. Cartwright and D. A. Russell, for defendant in error.
   Day, J.

As to the alleged error in the rejection of testimony bn the first trial, it is only necessary to say, that the judgment rendered on the second trial can not be invalidated for error, if any there was, that intervened only on the first trial; for such errors do not affect the judgment rendered on the second trial.

Did the court err, in its charge to the jury, in regard to tbe extent of the burden of proof resting on the defend.ants below ? To determine this question, we must look to the issues made by the pleadings. The petition is founded •solely on the wrongful taking of the goods. The answer .admits the taking of the goods, but justifies the taking •under a contract, and avers that no unnecessary damage was done in such taking. The reply merely denies the making and breach of the contract. So far, then, the bur•den of proof was cast upon the defendants. To that extent the court was right in its charge. But as to the further fact, that unnecessary damage was done to the goods in their removal, if it be conceded that this fact was ■essential to the defense, it was averred in the answer, and not denied in the reply; it must, then, under the provisions of the code, be taken as true; and, therefore, no proof of the fact wás required. The charge, therefore, that the burden of proving the fact rested on the defend.auts, was misleading; for, under the charge, though the fact was admitted by the pleadings, the jury was left to ■find against the defendants, for want of evidence, where no proof was required.

But, furthermore, under the contract, as it was claimed ■to exist, if the plaintiff sold whisky she forfeited all her privileges, and it then became a lawful right of the society to remove her property from the fair grounds. This right, it must be presumed, the officers exercised in a lawful manner, as there can be no propriety in assuming that they would do a lawful thing in an unlawful manner. If, then, it was claimed, by the plaintiff, that the facts were otherwise, that there was carelessness or negligence on their part, it was for her, who made that claim, to establish it by evidence; the burden, thus, was upon her to show that the injury -was occasioned by defendants’ negligence, and the charge asked by defendants should have been given.

Instead of this, however, the court said that it was for the defendants to 'show, not only that the contract was made and violated by the plaintiff, but also to show that they removed the goods in a careful manner, and that no unnecessary damage was done to the property by such removal. This was misleading, in that it seems to intimate that defendants must not only take care of the goods while moving them, but must also look out for them after the5r were removed. This was no part of their legal obligation. All they had to do was to remove the goods. If the owner saw fit to abandon them, and seek to make the society responsible, it was a risk she voluntarily assumed; their responsibility ceased when the goods were put off the premises.

Judgment reversed.  