This cause was reversed upon the one point that a witness for the defendant was as to one immaterial *Page 157 statement allowed to be contradicted, although this evidence was, subsequently on motion of counsel for plaintiff, excluded, and this upon the theory that the court failed to specifically instruct the jury in regard to the same.
In dissenting from the majority view I am, of course, fully mindful of the rule established by the decisions of Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann. Cas. 1916E, 565, and Green v. State, 96 Ala. 32, 11 So. 478, and cases of like character referred to in the opinion. The rule as established in such cases, requiring specific direction to be made by the court to the jury to the effect that such evidence is not to be considered, was one established by the court in furtherance of justice. It has, however, for its very foundation, the fact that the evidence introduced and subsequently excluded was of such a prejudicial character and so likely to impress the jury unfavorably that it calls for direct instructions from the court. I differ from the majority, not in the rule established in these cases, but in its application to the instant case.
I have read many of the cases, but time will not permit a review of them here. After all, each case must stand upon its own peculiar facts and circumstances, but I have found none in which a reversal was ordered where the evidence was, as here, merely a contradiction on one single point by a witness on an entirely immaterial matter. An examination of the authorities will disclose that the illegal evidence therein treated was considered as clearly of a very prejudicial character. The question arose in the instant case in the following manner: One Maulden was a witness for the defense, who had testified to but few facts, and nothing in regard to a knife. On cross-examination, in answer to the question to that effect, he denied that one A. C. Hamilton handed him a knife about two days before he went before the grand jury, and the witness A. C. Hamilton called by plaintiff was permitted to state that he had given the knife to Maulden. This, the court holds to have been entirely immaterial, and of course, had it not been immaterial the contradiction would have been proper testimony.
The rule is, as established in this state, as a matter of policy, that a witness may not be impeached by contradiction on immaterial matters for the principal reason, of course, that this would tend to lead the mind of the jury away from the main issues of the case.
At the conclusion of the evidence in the cause counsel for plaintiff, realizing that under the rule established this evidence was inadmissible, moved the court that the same be excluded. What occurred at that time was all done, presumably of course, in the presence and hearing of the jury, and was as follows, as disclosed by the record on page 95:
"Mr. Parks (addressing the court): We move to exclude that portion of the evidence offered by the plaintiff on yesterday, that Charlie Hamilton was connected with the Miller-Brent Lumber Company, and that he gave a knife to another Hamilton — this testimony pertaining to that knife transaction which was testified about by Maulden — that Hamilton gave a knife to Maulden and told him that Hamilton gave it to him to give to him. Now we move to exclude that testimony and also the testimony of Dr. Stewart, that he was connected with the Miller-Brent Lumber Company.
"Mr. Powell: But that is his own testimony.
"Mr. Parks: And I have a right to move to exclude it if I want to, and it is right. I have a doubt about it, and I now make the motion to exclude it.
"The Court: Let the record show that that part of the testimony with reference to the knife, and with reference to Dr. Stewart's connection with the Miller-Brent Lumber Company, on motion of the plaintiff, is excluded before the case goes to the jury."
As above stated, this contradiction was in regard to this one entirely immaterial matter, and was excluded by the court on motion of the counsel for plaintiff in the presence and hearing, presumably, of the jury. Clearly the jury understood the full meaning of all that was said and done, and realized fully that counsel for plaintiff himself was of the opinion that this evidence should not be considered, and all with the sanction of the court. I cannot conceive that this was evidence of such a character so prejudicial as to call for the application of the rule so strictly applied in the majority view, but it appears to my mind, after an examination of the entire record, it was a matter clearly without any bearing whatever upon the result.
Counsel for defendant filed a motion for a new trial, which was overruled, as appears on page 96 of the transcript. I think it worthy of note that the motion for new trial contained seven grounds, and not one of them relate to this question, nor, indeed, to any question of evidence whatever. It would appear, therefore, that counsel, fresh from the trial of this cause, attached but little significance to this single question which now looms so large and becomes so important as to be the sole basis for a reversal of this cause.
In my opinion, the rule established in the cases above cited has been by the majority too far extended, and is an unwise precedent. I forego, however, further discussion of the question, but have considered the case as of sufficient importance to call for a brief expression of my views. While I concur in the conclusion of the majority that there was no error in the refusal of charge 6 to defendant, yet I think it proper to state, in view of a new trial of the cause, that I am not in accord with the treatment given said charge in the majority opinion, wherein it is said:
"While we are confident as a matter of fact on the whole evidence that the blows insured received on his head had nothing to do with his death. * * *"
I have read the evidence in the case with great care. There was testimony offered on *Page 158 the part of plaintiff tending to show that the deceased was struck two severe blows on the head by one Corbin with what is known as a "stacker stick," which was about an inch and a quarter thick, averaging two inches in width and four feet in length; that he was struck from behind; that he did not fall, "but kinder sunk down a little bit." This occurred on July 15, 1914, and the insured died on August 12, 1914, and there was evidence tending to show that he had fever that night, which continued until the time of his death; that he had no appetite; that his mind became affected to some extent, and that he complained of pains in his head and back.
The majority opinion concedes that it was a question for the jury as to whether or not his death was caused by the blows on his head, but I merely do not wish to approve the language above quoted by way of expression of opinion upon this particular fact, and I have thought it proper, in view of another trial of this cause, to thus make my position clear. Upon this question I prefer to express no opinion whatever.
I respectfully dissent from the view of the majority in the reversal of this cause.