118 So. 381 | Ala. | 1928
The bill of exceptions does not show any attempt to except to the general charge of the court. Following the general charge, the record shows that Mr. Frohlich stated:
"We object to that part of your honor's charge which refers to the plaintiff owing no duty to the man behind or to look behind, on the ground that the undisputed evidence shows this to have been a state highway and very many cars on the road."
This is not in the bill of exceptions, and no exception to the oral charge is attempted to be shown therein.
The bill of exceptions is the only proper place to show an exception. By law an exception is presumed to the action of the court in giving written charges to the opposite party, and in denying one's requests for written charges. Sections 6430 and 9509, Code. This does not apply to the oral charge of the court. The bill of exceptions must show all exceptions not presumed by law. Ill. Central R. Co. v. Posey,
The exception must not only be shown by the bill of exceptions, but it must "select and recite what the court said." Birmingham R. L. P. Co. v. Cockrum,
The "objection" to the general charge cannot be considered for the reasons above assigned, pretermitting the fact that it was an "objection" and not an "exception."
The bill of exceptions and record entries recite that plaintiff's counsel consented to the giving of the written charges at defendant's instance, which are assigned as error. Sections 6430 and 9509 presume an exception to such given charges. But the presumption *207
is not conclusive, and if it expressly appears that plaintiff declined to except but consented to the giving of the charges, he cannot be aided by the statute. The purpose of the statute is not to require an express exception. It is not intended to deprive parties of conducting their cases as they wish in respect to exceptions, nor to require an exception when it is not desired. Cutcliff v. B. R. L. P. Co.,
All the assignments of error are controlled by the foregoing comments. There are no reversible errors in the record properly reserved and presented for review.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.