The petition for rehearing is based primarily upon the complaint that the court erred in holding in the opinion that appellant on the last trial was not entitled to the burden of proof.

The facts are that in plaintiff's original petition, after quoting the provision about self-destruction, sane or insane, she alleges that decedent's death was caused by his accidentally taking carbolic acid, and that at the time he took same

"he was so insane and his mind so unbalanced and his reason so impaired that he was unconscious he was taking his own life or attempting to do so; that he did not understand the nature or character of the act he was committing or that said act would cause his death or injure him."

Thus the plaintiff admitted the self-destruction, but relied upon the quoted facts in avoidance of it.

Thereupon defendant, without taking any steps to change the burden on this issue, promptly filed its answer, wherein it denies in the language of the petition that decedent came to his death by accidentally taking carbolic acid, or that he was at the time insane, etc., as set forth in the petition.

This made it the outset of the action, without complaint by defendant, an issue upon the mental condition of the decedent it the time he took the carbolic acid, and obviously left the burden upon that issue with the plaintiff, and so far as we gather from the old transcript on file, no complaint was ever raised on that subject until after the reversal of the judgment by this court.

But upon the return of the case after the reversal, and upon the second trial, the defendant, with a view of changing the burden on this issue so as to give it the concluding argument, sought to withdraw that part of its original answer making that issue, and to file an amended answer making the same issue and no other, but presenting it in a different form so as to raise the question in a way that would then entitle the defendant to assume the burden. In other words, defendant, after waiving at the outset the plaintiff's assumption of the burden on that issue, attempts upon the second trial to *Page 760 so change the form of its pleadings, without changing the issue, as to give it the burden which it had previously acquiesced in giving to the plaintiff.

The trial court in the exercise of a sound discretion declined to permit this to be done at that stage of the proceedings, and we see no reason to interfere with the exercise of that discretion.

This action has been tried by two juries, and so far as this appeal is concerned, the same result reached each time. Upon each trial the vital issue of fact was the same, and after defendant has waived its right to object to the plaintiff's assumption of the burden, it was too late for it lo raise this question on the second trial.

The petition for rehearing is overruled.