Mobile O. R. Co. v. Williams , 226 Ala. 541 ( 1933 )

It is now apparent to us that we failed to note the effect of the contention of appellee, that the ruling of the circuit court on objection to certain features of the argument of plaintiff's attorney for which the judgment was reversed should be construed in connection with charges numbered 12, 19, 20, and 31, given at the instance of appellant.

We are constrained to agree with appellee on rehearing that those charges clearly and effectually eliminated from the jury consideration of those features of rule 1228, to which the argument related, and which we think should not have been brought into the case. This is emphasized by the act of the court in withdrawing from the jury certain features of the oral charge in that respect and substituting matter which we think correctly treated the subject.

We see no reason to conclude that the injury wrought by the argument was not thereby effectually removed in the same manner as such charges would operate upon evidence improperly admitted. Birmingham, R. L. P. Co. v. Littleton, 201 Ala. 141 (4), 77 So. 565; Empire Coal Co. v. Goodhue, 200 Ala. 265,76 So. 31.

We cannot agree that thereby an affirmance is not due because of the matter of assignments of error 19, 21, 22, and 23. We think they state principles which are abstractly correct, and, when coupled with such argument of counsel to the jury, they might mislead them, but that such result is not a reasonable inference in the light of the given charges to which we have referred, and the withdrawal of certain features of the oral charge and substitution of correct principles in that connection. In the original consideration of the ruling of the court on objection to the argument, we did not overlook the manner in which it was raised in the circuit court in the light of the case of Birmingham, R. L. P. Co. v. Gonzalez, 183 Ala. 273, page 285, 61 So. 80, Ann. Cas. 1916A, 543. But we also observed that the rule of this case was modified in this respect in American Railway Express Co. v. Reid, 216 Ala. 479,113 So. 507, on rehearing, 216 Ala. 484, 113 So. 507, 511.

But we now think that the error which we held sufficient to reverse the case was corrected by the later rulings of the circuit court sufficient to eradicate its injurious effect.

Since we do not find reversible error in any other respect, the application for rehearing is granted, the reversal set aside, and the judgment of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.