ON MOTION FOR REHEARING.'
Jenkins, P. J.The motion for new trial, including the general grounds, contained ninety-three assignments of error. In the motion for rehearing the movant complains that the court has not complied with the provisions of the Code of 1933, §§ 6-1308, 6-1606, with reference to a consideration and decision of the ninety-special grounds of the motion for new trial, in that the opinion of the court is set forth in only eight paragraphs. Counsel further contend that many of the alleged errors are not mentioned or passed upon in the decision. Of the thirty-five grounds contained in the motion for rehearing a large majority relate to questions of the defendant’s liability, none of which were overlooked, but all of which were dealt with in the first paragraph of the syllabus, which paragraph disposed of fifty-six grounds of the motion for new trial, under the ruling that, where a verdict in the amount of $500 had been rendered in favor of the plaintiff, any alleged errors committed during the trial upon questions as to whether or not the defendant was liable became immaterial and harmless in view of the verdipt rendered in favor of the plaintiff upon the issue of liability. The *713remaining grounds of the motion for new trial, that is, questions relating to the amount of the recovery, were all fully considered and dealt with by the opinion, not, it is true, in a separate paragraph for each and every ground, but as related to one another under the rules of law enunciated in the last seven paragraphs of the opinion. For example, thirteen of the grounds, which might have related to the amount of damages, were disposed of in the fourth division of the syllabus. The court undertook in its opinion to deal with each and every ground relating to the amount of liability, after dealing specifically with all of the grounds bearing on the question of liability. The court not only undertook to comply with the statute and “announced by a written syllabus the points decided,” but considered and dealt with every question raised. It is true that in paragraph 7 of the opinion we did not elaborate our holding upon the various exceptions taken to various charges given, refusals to charge, and failures to charge, by copying into the opinion the requests made, the charges omitted, and the charges given. On the motion for rehearing, most of the paragraphs constitute a reiteration of the plaintiff’s contentions upon questions of liability. Several of the grounds, however, deal with questions which might pertain to the amount of damages; but we think that these have been fully covered in the original opinion. There is one question, which movant stresses in the motion with both earnestness and much ability, pertaining to the charge of the court on the burden of proof and its failure to charge on its own motion the language of the Code, § 38r103, as to the burden of proof, which we think might property have been elaborated in the original opinion and upon which we now give our views.
The petition alleged certain physical injuries, disabilities, and infirmities resrdting from the automobile collision. The answer as amended, in addition to denying that these arose out of the accident, pleaded in detail that they had existed long prior to the date of the accident. The Code, § 38-103, provides: “The burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential. If a negation or negative affirmation be so essential, the proof of such negative lies on the party so affirming it.” The court charged the jury as follows: “The effect of the defendant’s plea is to put the burden of proof upon the plaintiff to prove to *714your satisfaction by a legal preponderance of the evidence in the case that the allegations she makes are true, except such allegations, if any, as are affirmatively admitted by the defendant. Preponderance of the evidence, by which the plaintiff is required by the law to satisfy your minds, means the greater weight of the evidence upon the issues involved, which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a fair and impartial mind to one side of the issue rather than to the other. Now that rule of the preponderance of the evidence and that burden that is upon the plaintiff is applicable to all issues of fact involved in the ease.” The contention of the plaintiff is that the failure of the judge to give in charge, without request and on his own motion, the language of the Code section quoted, and the language of the charge as actually given, placed upon the plaintiff not only the burden of proving her case as laid by the petition, but the additional undue burden of disproving the alleged facts in ‘the answer as amended. As we understand it, the answer did not set up any affirmative defense. If the answer had admitted the facts stated in the petition, and had set up in justification or avoidance thereof an affirmative plea, the burden would have been upon the defendant to sustain such a defense. The amended plea, however, was but an elaboration of the general denial that the injuries sued for were occasioned by the accident, and was thus evidential or argumentative in its character. It is not conceivable that the jury could have understood the language of the court to mean that it was the duty of the plaintiff to prove as true the averments of the defendant that the injuries complained of were in existence long prior to the accident. If the language of the charge be subject to any misinterpretation, it would seem that such would be the only one possible. But, as already stated, where the plea did not set up an affirmative defense, and merely elaborated a denial of the allegations in the plaintiff’s petition, it is not conceivable that the jury could possibly have understood the court to mean that the burden was upon the plaintiff not only to prove-her own case, but also to prove facts in denial thereof—that is to say, both prove and disprove her own case. We do not think, however, that the language excepted to was subject to such a misinterpretation. At the beginning of this instruction, by its use of the language italicized, “the effect of the defendant’s plea is to put the burden of proof upon the plaintiff *715to prove to your satisfaction by a legal preponderance of the evidence in the case that the allegations she malees are true, except such allegations, if any, as cure affirmatively admitted by the defendant,” the court plainly and clearly limited the burden placed upon the plaintiff to the allegations which she herself made, except so far as “affirmatively admitted by the defendant.” When, therefore, the court again referred to the burden in the language, “now that rule of the preponderance of the evidence and that burden that is upon the plaintiff is applicable to all issues of fact involved in the case,” the use of the words “that burden” in terms limited the burden to the burden as just defined, viz. “to prove . . that the allegations she malees are true, except such allegations . . as are affirmatively admitted by the defendant.” As we see it, by no reasonable construction could the jury have been misled, as contended, into believing that the burden was upon the plaintiff to disprove the evidential and argumentative matters set up by the defendant neither as an affirmative plea nor as an affirmative admission of allegations in the petition. Moreover, the court made this even clearer later in the charge, after stating the substance of the petition and the denial by the defendant of its allegations: “Those are the contentions of the plaintiff, and I have told you all the rules of law; and the burden of proof is upon the plaintiff by a legal preponderance of the evidence on all issues of fact in the case—that is, ■the burden is upon the plaintiff to prove by a legal preponderance of the evidence the allegations which she malees.” There was therefore no error in the instruction complained of; nor was there any error, in the absence of a written request, in failing to give in charge the particular language of the statute with reference to the burden of proof.
A verdict for the plaintiff in a larger sum would not have been unauthorized under the contested issues of fact, just as it is true that a verdict in her favor was not demanded. ' The original brief, arguing fully and in detail and with much legal ability each of the grounds of the motion for new trial, as well as the motion for rehearing, has been considered at length. We do not think that any of the grounds authorize the setting aside of the verdict and judgment rendered.
Rehearing denied.