On this application, appellant insists that the reason we assigned for holding that the trial court did not err in the first instance in sustaining the objection made by defendant was not properly matter for our consideration because no such ground of objection to the evidence was assigned by defendant on the trial.
When the court overrules an objection to evidence on special grounds assigned, which do not point out a valid objection, this court will not on review consider other grounds which might have been assigned, and which would have pointed out some legal objection. McWhorter v. Tyson, 203 Ala. 509, 83 So. 330; Koosa Co. v. Warten, 158 Ala. 496, 501, 48 So. 544; Dixie Industrial Co. v. Bank of Wetumpka, 207 Ala. 293, 92 So. 786; McDaniel v. State, 97 Ala. 14, 12 So. 241; A. G. S. R. R. Co. v. Bailey, 112 Ala. 167, 20 So. 313; Sharp v. Hall, 86 Ala. 110,5 So. 497, 11 Am.St.Rep 28; Holcombe v. State, 17 Ala. App. 91,82 So. 630.
It is also true that when special grounds are assigned in objecting to evidence, and they do not point out a valid legal objection, but the court sustains the objection, on review this court will not ordinarily look around for other grounds to sustain the ruling. Oden-Elliott Lumber Co. v. Daniel-Gaddis Lumber Co., 210 Ala. 582 (16), 98 So. 730; Moseley's Adm'r v. Mastin, 37 Ala. 216; King v. Hill, 172 Ala. 4, 55 So. 205; Bibb v. Bonds, 57 Ala. 509; Adams v. Southern Railway Co., 166 Ala. 449 (10), 51 So. 987; Massey v. Smith, 73 Ala. 173. And will affirm it under those circumstances only when the evidence is patently illegal (Circuit Court Rule No. 33; O'Neal v. Lovett,197 Ala. 628, 73 So. 329; Moseley's Adm'r v. Mastin, supra; Jordan v. Owens, 27 Ala. 152-156), and would be subject to general objection. Smith v. Woolf, 160 Ala. 644, 655,49 So. 395; Dixie Industrial Co. v. Bank of Wetumpka, supra.
A general objection should be sustained if the evidence is illegal for any purpose, and cannot be made legal by other evidence or by otherwise framing the inquiry. Bennett v. Bennett, 224 Ala. 335, 140 So. 378; Williams v. Bolding,220 Ala. 328 (7), 124 So. 892; Sanders v. Knox, 57 Ala. 80; Dixie Industrial Co. v. Bank of Wetumpka, supra; Bufford v. Little,159 Ala. 300, 48 So. 697.
When the judge has sustained a general objection to evidence, the ruling will not ordinarily be reversed if there is any valid legal objection to it. L. N. R. R. Co. v. Fleming,194 Ala. 51, 69 So. 125; Feore v. Trammel, 213 Ala. 293,104 So. 808.
In considering on review the order of the court granting a new trial because that court *Page 290 concluded it had erred in sustaining objection to the evidence under consideration, the inquiry in connection with the ruling as to that evidence is whether it was error prejudicial to plaintiff to sustain the objection. This is not a situation where an objection by defendant is overruled, and he is seeking to reverse that judgment. When that situation exists, the rule is applicable that: "The initiative in excluding improper evidence is left entirely to the opponent, so far as concerns the right to appeal on that ground to another tribunal. The rule of evidence not invoked is waived." 1 Wigmore on Evidence (2d Ed.) p. 173, par. 18.
In Clark v. State, 217 Ala. 229, 115 So. 295, the court excluded evidence offered by defendant on a general objection by the state. Defendant appealed. The court held that the evidence was not competent; that the court would not have erred in excluding it without objection. Defendant therefore could not reverse the ruling.
So in this case, the court could have declined to admit the proposed evidence without objection if it was "plainly illegal or irrelevant," without committing an error on review by plaintiff. Under that postulate it was no more the right of the trial court to reverse itself on motion of plaintiff, than it would have been the right of this court to reverse it on appeal by plaintiff. When so, the trial court should not have reversed it on such motion, and the ruling in doing so would be reversible error on the appeal of defendant, consistently with the foregoing discussion.
So that as to grounds 56, 57, and 58, the questions depend upon whether the proposed evidence was "inherently" or "plainly" illegal.
Our discussion of the legality of the evidence in the opinion was with that in mind. For the reasons there stated, and to the evidence there mentioned, we think our view, there explained, is the proper legal interpretation of that situation.
We observed in our opinion that plaintiff offered the testimony of the deceased witness, which had been given in the Lee case, and the court sustained the objection, but that the ground of the motion on which the court acted did not relate to that evidence, except as it was a part of her evidence in this case. The motion for a new trial was granted on the ground that the court erred in sustaining objection to her evidence given on the former trial of this case. So that we confined our inquiry to that ruling.
But we noted the general rule that the parties were not the same in the two suits, since the Lee case was for the death of the wife, and this suit for the death of the husband, with different personal representatives, caused by the same act of defendant. We cited authorities to the effect that identity of parties is requisite to its admissibility.
Counsel now call our attention to a rule well settled, and here applicable, that in granting a motion for a new trial, this court will not, on review, confine the inquiry solely to the ground on which the motion was granted, but will affirm the judgment, so doing, though the ground on which the court acted did not justify the ruling, if it affirmatively appears that it should have been granted on some other ground. Conner v. Cent. of Ga. Rwy. Co., 221 Ala. 358, 128 So. 789; Mills Lumber Co. v. Hull, 222 Ala. 229, 131 So. 902; Choate v. Ala. Gr. So. R. R. Co., 170 Ala. 590, 54 So. 507.
Counsel for appellee now urge that there is a limitation upon the general rule cited by us, and that upon its consideration the court did not commit error in sustaining the motion for a new trial. Counsel also suggest a principle which we will not controvert, that there is no confession of reversible error by appellee in the failure to point out this as a reason for sustaining the judgment of the trial court. Mobile B. R. R. Co. v. L. N. R. R. Co., 172 Ala. 313, 54 So. 1002.
Without now undertaking to declare that appellee has the right to direct our attention, on rehearing, in all cases, to a question not urged on the submission, in this case the question was referred to in our opinion and authorities on it cited, and was pertinent to the question then under consideration, though the court did not grant the motion on those grounds, and appellee has the right to a reconsideration of it on rehearing.
In offering the testimony of the deceased witness given in the Lee case, in its entirety ground 53 and the parts of it mentioned in grounds 54 and 55 of the motion for a new trial, plaintiff stated to the court that the Lee case was for the death of Mrs. Scott, "who was killed by the same stroke of the engine, at the same time and place and under the same conditions and circumstances exactly as this man, her husband, *Page 291 was killed, for whose wrongful death this suit was instituted"; that she was so examined in that case as a witness for the same defendant as in this case and touching the same matter here pertinent.
The cases cited by us sustain the requirement that there must be identity of parties or privies in the two suits to justify the use in one of the evidence of a witness, since deceased, taken when alive in the other.
A majority of the court, consisting of GARDNER, THOMAS, BOULDIN, and KNIGHT, JJ., adhere to an application of that principle to the evidence of the witness taken in the Lee case, and offered in this. They hold that because of a want of substantial identity of parties in the two suits, the evidence thus taken in that case is not admissible in this; and FOSTER, J., concurs with them in holding that the former opinion is otherwise correct, and that the trial court should not have reversed his ruling as to the evidence of the witness given on a former trial of this suit.
The application for rehearing is overruled.
GARDNER, THOMAS, BOULDIN, and KNIGHT, JJ., concur.
ANDERSON, C. J., and BROWN, J., not sitting.
FOSTER, J., dissents.