| Ala. | Nov 15, 1890
— There was a cross demand set up in this case by pleas of set-off and recoupment. The jury by their verdict found and certified a balance in favor of the-defendant, and h.e had judgment for such balance. The plaintiff below is the appellant here. The defense set up by Robinson was, that he had timber sawn into lumber at the mill of Jackson, the plaintiff, at a specified rate per thousand feet, and that the sawing was done so negligently and unskillfully as to damage him to the extent he claimed a set-off. This was the issue before the jury, raised by the testimony.
In discussing the testimony, counsel for Robinson stated to the jury, as follows: “Your experience is that you do well if you come out even, after you give your timber.” This was objected to by opposite counsel, and the court was asked to interfere. This was declined, and an exception was reserved. The remark could have no pertinency, unless it referred to some transaction other than the one on trial, in which it was charged or reported that a mill-man, sawing timber into lumber for another, had so performed the service as that it yielded no profit to the owner of the timber. This was an unauthorized allusion to a supposed outside fact of which there was no proof, and of which no proof could lawfully be made. It could have no influence except to prejudice the jury, by~
It is not our intention to interdict legitimate comment on testimony and conduct developed on the trial, the manner of witnesses, or any reasonable or possible inference that may be drawn from any feature or phase of the case, as it is presented before the jury. Our precise meaning is, that matters of which there is no testimony, or of which there can be no legal testimony, should not be allowed to get before the jury as facts or factors in their deliberations, or in the verdict it is their duty to render.
Charges 1 and 2 asked by plaintiff, if given, would have required the jury not only to find the amount of damage suffered by defendant from imperfect sawing, but to go further and ascertain the damage or ■ loss in each of the grades of lumber involved in the investigation. These charges were, to some extent, confusing, and were likely to embarrass and mislead the jury. It is conceivable that twelve men would be reasonably convinced and agreed as to the aggregate amount of damage done the defendant, and yet find great difficulty in determining how that damage should be apportioned among the several grades of lumber. These charges were rightly refused. — 3 Brick. Dig. 113, § 110.
The charge given at the instance of defendant is but an argument to the jury, and such charges should, as a rule, be refused. When, however, such charge in its postulates asserts nothing that is in principle illegal, it furnishes no ground for a reversal.
Reversed and remanded.