As to the argument that there was a variance for that the plaintiff, appellee, failed to prove the concurring negligence alleged in the complaint, appellants now urging that such variance was conclusively established by the verdict which acquitted the Reeves Electric Plumbing Company: This, in another guise, is the question we discussed in the first place in our original opinion, in which we held that in a case against two or more defendants charging concurrent negligence the defendants might be held answerable jointly or severally. We are satisfied with that ruling. We have, however, cited several additional authorities to this point. They are conclusive.
As to assignment of error 135 touching one part of the argument made to the jury by Mr. Persons, of counsel for plaintiff, appellee: It is seriously doubted that the brief on original submission brought this question before the court in a manner requiring decision. In their brief on the original submission counsel for appellants said in respect of assignment of error 135:
"The exact quotation from the argument complained of is set out at the beginning of the discussion of the argument of counsel."
Now, in their brief on this application, counsel for appellants set out in verbis the language used by counsel for plaintiff and set out in assignment of error 135. But the language complained of in this assignment of error cannot be found at the beginning of the discussion of the argument of counsel or elsewhere in appellants' brief on the original submission of this cause. In the preparation of the original opinion in this cause we assumed, as perhaps we were justified in doing, that counsel intended to discuss those excerpts from the argument of plaintiff's counsel which were set out in the brief. The trial court had instructed the jury not to consider those parts of the argument — certainly the harm, if any, done by these arguments was not ineradicable (B. Ry. L. P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543) — and so we considered the general statement of our original opinion to be sufficient. Nor is it clear that the trial court did not exclude from the jury's consideration that part of the argument of counsel for plaintiff which was set out in assignment of error 135 and is now set out in the brief on this application. The court at first did allow this argument to go to the jury; but thereupon, as the bill of exceptions shows, a colloquy followed "between court and counsel" as follows:
"Mr. Persons: We have got a perfectly good rule over here in Georgia, gentlemen; I don't know whether it applies in Alabama, but I think it does: Where a party is able to produce it and they do not produce it, then the inference is against them.
"Mr. Turner: We object to that line of argument and move to exclude it from the jury.
"The Court: Gentlemen of the jury, you will not consider that argument."
But if it be conceded that appellants have a right to the consideration of assignment 135 on this appeal and that the trial court did not exclude that part of the argument from the jury, still there was no error. Counsel for plaintiff argued to the jury in effect that defendants the Alabama Power Company and the Selma Lighting Company had it in their power to explain their method of operating the gas plant, and asked the question what conclusion the jury were entitled to draw from the failure of the named defendants to offer such evidence. Plaintiff had introduced evidence which justified the inference that the Alabama Power Company and the Selma Lighting Company, one or both, were operating the gas plant at the time of the accident in suit. Likewise there was evidence to warrant the finding that the operation of the plant had been negligent, resulting in the death of plaintiff's intestate. We may assume that defendants were contending that the evidence sustained neither conclusion. Such has been their contention in this court. If these defendants were operating the gas plant on the occasion in question, the facts as to the manner of its operation were in the peculiar keeping of persons who, it may be assumed, were friendly to the defendants. In these circumstances it cannot be said that the argument which the court permitted to go to the jury, if it did permit any part of it, was unfair or improper. Said Stone, C. J., in Carter v. Chambers, 79 Ala. 223:
"There is a rule, and a just one, that if a party has a witness possessing peculiar knowledge of the transaction, and supposed to be favorable to him, and fails to produce such witness when he has the means of doing so, this, in the absence of all explanation, is ground of suspicion against him that such better informed testimony would make against him" — citing McGar v. Adams, 65 Ala. 106; Kilgore *Page 96 v. State, 74 Ala. 1; Fincher v. State, 58 Ala. 215; 1 Greenl. Ev. § 82.
Substantially the same language was used in Pollak v. Harmon,94 Ala. 420, 10 So. 156, and a like decision recorded in Buchanan v. State, 55 Ala. 158. This is an old rule. It was said by Lord Mansfield in Blatch v. Archer, Cowp. 66:
"It is certainly a maxim that all evidence is to be weighed according to the proof which it is in the power of one side to have produced and in the power of the other to have contradicted."
Prof. Wigmore says that the propriety of the inference that the party who fails to bring before the tribunal some circumstance, document, or witness, when either he or his adversary claims that the facts would thereby be elucidated, fears to do so, and that this is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party so failing — this inference he says is most natural. 1 Wigm. Ev. § 285.
In 2 Chamb. Mod. Ev. § 1075, it is said:
"In proportion as it is to the interest of the party to submit the evidence of an available witness, the jury are entitled to infer from his neglecting to do so that his evidence, if produced, would not be favorable to the party."
Of course, there are limitations on the rule which must needs be observed. Thus, a party is not required to produce all possible witnesses, if that would elucidate nothing — in the present case defendants produced no witnesses as to the facts — nor to produce a witness likely to be prejudiced against them; and it is commonly said that no inference is allowable where the witness in question is equally available to both parties, but this qualification is itself modified by that other last mentioned, to wit, a party may not be expected to produce a witness likely to be prejudiced against him. 1 Wigm. Ev. §§ 286-288. Many of our cases on this subject are collected in Coosa Portland Cement Co. v. Crankfield, 202 Ala. 369,80 So. 451, and Jackson v. State, 193 Ala. 36, 69 So. 130. Statements of the rule have varied according to the exigencies of the cases. Two cases, Brock v. State, 123 Ala. 24, 26 So. 329, and Coppin v. State, 123 Ala. 64, 26 So. 333, are notable in that they disclose a difference of opinion among the members of the court as then constituted. We venture to observe of these cases that, while Judge Tyson correctly stated the rule in general, the rulings of the court in the circumstances of the two cases were correct. The charge in each case was adultery, and the question was whether, on a severance, the prosecuting attorney was properly allowed to comment on the failure of the defendant on trial to call the other party to the crime. The court answered this question in the negative. The court stated the reason of its ruling in the following language (Brock's Case):
"In the present case Coppin could not have been compelled to testify to any fact tending to criminate himself. The offense being one of which he and the defendant must both have been either guilty or innocent, his mere refusal upon the ground of self-incrimination might have been construed by the jury to the defendant's disadvantage. On the contrary, if he had not declined, the credibility of his testimony would have been open to assault upon the ground of interest."
This was repeated in Coppin's Case, and this, however satisfactory, serves to distinguish these cases from others in the same general line, and discloses the fact that these decisions are not authority against our holding in the case at bar, which is that if defendants challenged the inferences which plaintiff sought to have the jury draw from the evidence that plaintiff was able to adduce from other sources, as defendants no doubt did, it was proper matter of comment that defendants had failed to produce the testimony of its employés in charge of the plant who, it may be inferred, had better opportunity to know the facts, but whom the plaintiff in the circumstances should not have been expected to summon to the witness stand because, it is not unreasonable to infer, they were not without some natural predilection, prepossession, or prejudice for defendants and against plaintiff. Manley v. B. R. L. P. Co., 191 Ala. 531, 68 So. 60, does not appear to hold anything to the contrary. For aught appearing in the report of that case, the motorman witness may have been no longer in the employment of the defendant, and defendant may have adduced an array of witnesses who knew as much of the facts as did the motorman. Hence, our judgment that, even if appellants were entitled to a detailed consideration of this assignment of error, no error is shown.
As to the motion for a new trial: In so far as the motion was based upon the rulings heretofore considered, the opinion of the court needs no further statement. In respect of the insistence that the damages assessed were excessive, the argument on this point in the brief on the original submission was expressed in two lines of a 90-page brief (with citation of Montgomery, etc., v. Thombs, 204 Ala. 678, 87 So. 205), and the writer conceived the idea that it hardly needed notice. However, the court sitting for the decision of this question on rehearing, ANDERSON, C. J., McCLELLAN, SAYRE, SOMERVILLE, GARDNER, and THOMAS, JJ., holds that the argument was sufficient to invoke a ruling. The action is under section 2486 of the Code of 1907, sometimes referred to *Page 97 as the Homicide Act, the purpose of which is "to prevent homicides," and damages are to be assessed in such amounts as the jury may deem just and proper to effectuate the purpose of the statute. Pecuniary loss or mental suffering are not to be considered. In this case simple negligence only is alleged, and upon consideration of the circumstances shown in evidence it is conceived to be beyond dispute that no more culpable act or omission could have been found. The court is of opinion, therefore, that the amount of damages awarded evidences the fact that the jury were influenced by passion, prejudice, or other improper motive. Proceeding, in the absence of other reversible error, to assess the just and proper amount of recovery in this cause, as required by the act of September 17, 1915 (Acts 1915, p. 610), the court fixes upon the sum of $17,500 and doth order that the judgment in this cause be reversed and remanded unless plaintiff within 20 days from the date hereof remit all damages in excess of said amount, in which event the judgment will be affirmed.
The court is of opinion that the statute, under which the ruling as to damages is made, deprived the appellant of neither due process nor equal protection of the law, nor does it in any wise contravene the Constitution of this state.
Application granted, judgment of affirmance set aside, and judgment reversed conditionally.