After the opinion in this case was published in advance sheets, our attention was called to the fact that the charge requested by appellant, whose refusal was made the basis of a reversal, is not expressed in appropriate language, in that, it is hypothesized on a belief of the evidence rather than a reasonable satisfaction from the evidence. Our attention to this was not called by counsel in the case, but by a disinterested attorney, showing that in reversing the judgment on account of the refusal of the charge, we were not following a line of our cases to the effect that when a charge thus framed is refused, its refusal will not be ground to reverse though it otherwise should have been given, even though it exacts a higher degree of proof on the one asking *Page 396 the charge than the law requires. W. P. Brown Sons Lumber Co. v. Rattray, 238 Ala. 406, 192 So. 851; Sovereign Camp, W. O. W., v. Sirten, 234 Ala. 421, 175 So. 539; Burch v. Burch,231 Ala. 464, 165 So. 387; Warner v. Warner, 223 Ala. 524,137 So. 418; Cain v. Skillin, 219 Ala. 228, 121 So. 521, 64 A.L.R. 1022, and the many cases cited in them.
In preparing the opinion in this case that status was not noticed by the writer nor the Court in acting on the charge. No such contention was made on the hearing, either on the original submission or on application for rehearing. When we consider questions raised, it is usual to limit ourselves to the contentions made and not to seek some formal or substantive matter not relied on in the case.
The legal status of this charge was argued by counsel on the basis of its merits without regard to the form now referred to. But even so a trial judge may rely on the rules of this Court, and refuse a charge whose form has been condemned by us, without being reversed for doing so. But when the charge of the Court shows that the case was tried by the Court on a theory which we think is erroneous, and the written charge referred to is the method used by counsel in obtaining an exception to the theory on which it was tried, and it goes to the very gravamen of the defense, we see nothing to indicate that its refusal was probably on account of the form of the charge. We should review rulings on the theory on which they were probably made. With this explanation, we will not alter the reversal heretofore ordered without disturbing the effect of our decisions.
Application overruled.
ANDERSON, C. J., GARDNER and BOULDIN, JJ., concur.