143 Ala. 524 | Ala. | 1904
The plaintiff, while testifying' as a witness for himself, was shown by his attorney a statement of an account between himself and the defendants, which statement was shown to have been made out by the plaintiff. After the plaintiff had examined the statement, he was ashed by his attorney, if the statement
But the appellee insists, that, inasmuch as the bill of exceptions does not contain all the evidence, nor purport to set out all the evidence, this Court will on appeal presume that there was evidence to justify all the rulings of the trial court.
' The above is a true statement of the rule with respect to the rulings of the court in the giving or refusal of charges or findings by the court. — Sanders v. Steen, 128 Ala. 633, and authorities there cited. But, rule 33 p. 3201, Code 1896, which relates to the mode of framing bills of exceptions, does not require nor authorize the setting out of all the evidence in order to properly present for review the rulings of the trial court on the admissibility of evidence. And when rulings of the court on evidence are presented, and error is shown, the error raises the presumption of injury and must work a reversal, unless the record clearly shows that no injury could have resulted. — Frierson v. Frierson, 21 Ala. 519; Buford v. Gould, 35 Ala. 265; McCargo & Cordle v. Crutcher, 27 Ala. 171; Thomas v. DeGraffenreid, 27 Ala. 651; Lawson v. O’Rear, 7 Ala. 784.
It follows that, unless we can say from the record in this case that no injury could have resulted from the admission of the statement of the account in evidence,
At the request of the defendants in writing, the court gave several charges to the jury. After the charges had been read to the jury by the defendant’s counsel, the court commented upon some of them before the jury; the comments made by the court are fully set out in the bill of exceptions. It is now insisted by the appellants that the comments made by the court operated as a qualification of the charges, and were in violation of section 3328 of the Code, which provides that charges, moved for by either party in writing, must be given or refused in the terms in which they are written. This section has been many times construed by this Court, and it has been held, that, “If a requested charge is free from involvement, or tendencies to mislead, it is the duty of the court to give the charge in the precise language of the request. But if there should be apprehension in the mind of the presiding judge, that the charge at the request of either party had placed in undue prominence before the jury, any particular phase of the case, it would be his privilege, if not his duty, to give an additional explanatory charge,, so as to present before the minds of the jury a fair and impartial statement of the various questions on which they are called to pronounce.” Explanations are not prohibited, qualifications are.. — Eilands case, 52, Ala. 322.
Of the series of charges given for the defendants, those numbered 1, 3, 5 and 6 required that the jury should be reasonably satisfied by a preponderance of the evidence. Such charges have been held to be misleading, and for this reason, the court might have properly refused them. — K. C. M. & B. R. R. Co. v. Henson, 132 Ala. 528; U. S. Fidelity Co. v. Charles, 131 Ala. 658 ; Arndt v. City of Cullman, 132 Ala. 510; Carter v. Fulgham, 134 Ala. 238.
In the case of Lyon & Co. v. Kent & Co., 45 Ala. 656, which is cited and relied upon by counsel for the appellants, several instructions at the request- of one of the parties were given by the court, with the remark that thejr were given in connection with the main charge of the court. It did not appear from the record in that case that the instructions were moved for in writing, but the Court said, if the charges had been in writing, the remark of the court would have been a violation of the statute. — Revised Code, § 2756. The statute referred to is section 3328 of the Code of 1896. The Court in that case said, “The language of the learned judge in the court below means nothing, or it means that the charges moved for shall be, to some extent, controlled by the main charge already given. This was a qualification of the charge moved for.” That case is in conflict with the rulings of this Court made in a number of cases subsequently decided, and it must- be overruled upon the point under consideration*. — Baker’s case, 49 Ala. 350; Barnard’s case, 88 Ala. 111 ; William’s case, 98 Ala. 22.
Por the error committed by the court in admitting the statement of the account in evidence, the judgment is reversed and the cause remanded. .
Reversed and remanded.